Supreme Court overrules CPC preliminary objections

Justice Murdhu Fernando P.C. of the Supreme Court overruled the preliminary objection raised by the Ceylon Petroleum Corporation (CPC), that the Fundamental Rights application challenging the arbitrary non-promotion of Petitioners by the CPC has been filed out of time. 

President’s Counsel for the CPC alleged that the employees have failed to come to Court within the specified 30-day period. The Respondents cited several judgments of the Supreme Court, where it had held that unless and until an inquiry had commenced at the Human Rights Commission of Sri Lanka (HRCSL), the time freeze under the HRCSL Act does not apply. Senior Counsel for the Petitioners, Harsha Fernando, responded stating that applications have been filed before the HRCSL, and in terms of the HRCSL Act, the period of time the matter is pending before the HRCSL should not be considered. He further submitted that there is no formal mechanism for a complainant to know if an inquiry had commenced or not, and that the making of a complaint is sufficient for the relevant provisions of the HRCSL Act to be applicable. Upholding this submission, the Supreme Court noted that the Petitioners have gone before the Human Rights Commission promptly (within the stipulated period of one month under of Section 13(1) of the HRCSL Act), and the matter is pending before the HRCSL, and during the pendency of the matter before the HRCSL time freezes.

Justice Fernando said, in her view, what is material is for an aggrieved party to make a complaint within the mandatory period. The acknowledgment of the complaint by the Human Rights Commission would trigger in and set in motion the mechanics and workings of the HRCSL, culminating in a communiqué pertaining to the findings on the complaint. An aggrieved party has no say or control over the proceedings before the HRCSL, and cannot be faulted for the delay or non-holding of an inquiry by the Commission, which may be for good and justifiable reasons. The manner and speed of the working of the Human Rights Commission is not within the purview of an aggrieved party, and an aggrieved party cannot be penalised for the delay, if any at the HRCSL, the judgment further stated. Citing another recent judgment, Justice Fernando reiterated that Court would fail to fulfil its guardianship if it remains blind to facts and circumstances, and did not use its discretion to consider the failure to apply in time (on account of a third party or some nature or man-made disaster) in an appropriate case when it arises. The case has now been fixed for support for leave to proceed.

Harsha Fernando with Chamith Senanayake and Ruvendra Weerasinghe, Attorneys-at-Law instructed by Jagath Talgaswattage, appeared for the Petitioners. Sanjeewa Jayawardena P.C. appeared for the Ceylon Petroleum Corporation, with Senior State Counsel Yuresha de Silva representing the Attorney General.