PENSION RIGHTS? CAN AN EMPLOYEE HOLD ON TO THE OFFICIAL RESIDENCE UNTIL PENSION IS APPROVED.

 

                 

 Headnote: 

Pradeep Kariyawasam v. Colombo Municipal Council & Others 

SC (FR) Application No. 08/2019 

Decided on: 12th September 2024 

Court: Supreme Court 

Judges: S. Thurairaja, PC, J.; A.L. Shiran Gooneratne, J.; K. Priyantha Fernando, J. 

Facts: 

Dr. Pradeep Kariyawasam, the petitioner, filed a fundamental rights application against the Colombo Municipal Council (CMC) and several other respondents, alleging a violation of his rights under Article 12(1) of the Sri Lankan Constitution. The petitioner, upon retirement, failed to vacate the official residence provided to him as a Chief Medical Officer by the CMC, despite multiple notices. The petitioner also sought the transfer of the residence to his wife, which was denied. The petitioner’s pension was delayed due to his refusal to vacate the quarters, prompting him to file the application. 

 

Held: 

That the petitioner failed to establish a violation of his fundamental rights. The Court held that the delay in processing the petitioner's pension was justified due to his failure to vacate the premises, and there was no mala fide or arbitrary action by the respondents.

 Background of the Case: 

The petitioner, Dr. Pradeep Kariyawasam, was employed by the Colombo Municipal Council as a Medical Officer and was provided official living quarters. Upon his promotion to Chief Medical Officer, he was permitted to consolidate two quarters, giving him a larger residence. Following his retirement in 2014, the petitioner was obligated to vacate the quarters, which he refused to do for four years. Despite receiving notices to vacate, the petitioner continued occupying the premises, and legal action was taken to recover possession.

The petitioner contended that his pension was delayed unlawfully, and he filed a fundamental rights application claiming that the delay in processing his pension violated his rights under Article 12(1) of the Constitution, which guarantees equal protection before the law. He also sought to have the official residence transferred to his wife, which was denied by the respondents.

 Legal Issues: 

1. Whether the petitioner’s continued occupation of the official residence after retirement was lawful.

2. Whether the delay in processing the petitioner’s pension was a violation of his fundamental rights under Article 12(1) of the Constitution.

3. Whether the respondents acted arbitrarily or in bad faith in denying the petitioner’s wife the transfer of the residence.

Arguments:

Petitioner’s Arguments:

The petitioner argued that his pension should not have been withheld without a proper disciplinary inquiry under the Minutes on Pensions. He claimed that his continued occupancy of the quarters was permitted by an informal assurance from the Minister and that his wife, being a Deputy Medical Officer, should have been allowed to continue residing in the premises.

 He further argued that the delay in pension processing was due to mala fide actions by the respondents, which violated his fundamental rights under Article 12(1).

 

Respondent's Arguments:

 The respondents contended that the petitioner’s continued occupation of the residence was unlawful and that legal action was taken under the Local Authority Quarters (Recovery of Possession) Law No. 42 of 1978 to recover the premises. They argued that the delay in processing the petitioner’s pension was due to his failure to vacate the quarters, which was a policy decision of the Council to ensure the proper use of official residences.

They also submitted that the petitioner’s wife was not eligible for the transfer of the residence under the Establishments Code and that there was no violation of the petitioner’s fundamental rights.

Precedents Discussed:

1. Upali Sarath Kumara v. Anura Sathurasinghe & Others – The petitioner relied on this case to argue that a pension cannot be withheld without a proper inquiry. However, the Court distinguished this case, noting that the petitioner’s unauthorized occupation of the quarters became an issue after his retirement, and no disciplinary inquiry was necessary in this context.

2. Wilson Godawela v. Chandradasa & Others – This case dealt with the rights of government servants concerning pensions. The Court reiterated that pensions are governed by the Minutes on Pensions, but the facts of this case did not apply to the petitioner’s situation.

3. Jayarathne v. Wickremaratne & Others – Cited by the petitioner to argue for the protection of pension rights. The Court emphasized that while pension is a right, it can be subject to deductions or withholding under specific legal provisions, such as penal rent for unauthorized occupation.

 Conclusion:

The Supreme Court concluded that the petitioner’s continued occupation of the official residence after retirement was unlawful, and the delay in processing his pension was justified due to his failure to vacate the premises. The Court found no evidence of bad faith or arbitrary action by the respondents and dismissed the petitioner’s application. The Court also held that the petitioner’s wife was not entitled to the transfer of the official residence, as she did not meet the eligibility criteria.

The application was dismissed, with the Court instructing the respondents to proceed with the petitioner’s pension payments according to the applicable regulations.

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