033-SLLR-SLLR-1982-1-A.-G.-Ariyadasa-and-others-v.-A.-L.-B.-K.-Perera-and-others.pdf
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SUPREME COURT,:A.Gi Ariyadasa and others
■■ V
A.L.B.K. Perera and others
S. C. No. 15/81 -C.A. Application No. 2057/77 C.A(L. A.) 99/80 SX
Employees Council Act – Finality of determination of electoral list — Inability topostpone election a day after acceptance of nomination and fixing election day.
The Appellants were employees eligible to vote and hold office underthe Employees' Council Act No. 32 of 1979.
All preliminary steps had been taken by the 1st Respondent to holdelections and all preparations had been made including compiling electorallists. As required by the Act the Commissioner of Labour the 1stRespondent appointed an electoral Board of which the third Respondentwas the Chairman. The 3rd Respondent fixed 8th November 1979 asnomination day and 23rd November as election day. On 8.11.79 the 3rdRespondent accepted the nomination papers of all three Petitioners hutinformed then that they had been transferred to other depots.
In the meantime the 1st Respondent issued a circular amending theelectoral list thus necessitating the postponement of elections. Electionswere held on the altered basis. The Petitioners prayed for a Writ ofMandamus directing the Respondents to hold fresh elections.
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Held ' I. That once the Commissioner-of Labour prepared and certifiedthe electoral list thatlist was final and could not beam ended.
2. That the Respondent had contravened the. provisions of theAct by transferring the Petitioners with effect 'from nomination
day.
. 3;. That once the,3rd Respondent accepted nominations and fixedelection day he had no right to reject nominations and postponeelection day.
A.PPEAL from judgment.Of Court of Appeal,
Before:
Counsel:
Argued on:Decided on:
SOZA J.
Wanasundera; J,, Ratwatte J. and Soza J.
Nimal Senanayaka, Senior Attorney-at-Law withMiss S.M. Senaratne, T. BalasuriyaandMrs. A-B. Dissanayake for Appellants.
Ameen Ismail,.Senior State Counsel withS.K. Hettige, State Counsel for 1st Respondent.
D.Q, Palliyaguru for 2nd and 3rd Respondents.
12.02.82, and 25.02.828.4.i982
Cur. adv. vult.
The three appellants in this case challenge the propriety of thealteration of the .electoral list and the postponement of the electionof the Employees’.Council fixed for 23rd November 1979, of theunit of undertaking -called the Maharagama Depot of the ColomboSouth Region Transport Board. These elections were to, be-, heldunder the Employees’ Councils Act, No. 32 pf .1979 (hereafter referredto as the Act) and the Employees’ Councils Rules, 1979 (hereafterreferred to as the Rules) made under section 12 of the Act.
At,the times .material to the questions we are being called, uponto consider, the. three appellants.were eligible employees withiijf.themeaning assigned to this expression in the. Act and therefore entitledto be elected, to and to vote at the elections-for membership, of .theEmployees’ Council of the Maharagama Depot (section 9 of the Act).
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We are here concerned with the first election held under the Act.The first step to be taken was the appointment of an Electoral Boardof five members (two of whom had to be eligible employees of theparticular unit of undertaking) by the Commissioner of Labour(hereafter referred to as the Commissioner) who is the first respondentbefore us. One of the five members had to be appointed Chairmanof the Board by the Commissioner. The Board and its Chairmanhad to be appointed within six weeks of the coming into operationof the Act (sections 7 and 8 of the Act). It was the duty of theElectoral Board to hold the election within six months of the cominginto operation of the Act. If the Board neglected any of its dutiesthe Commissioner could act instead (sections 6 and 13 of the Act).
On 24.9.1979 the Commissioner appointed an Electoral Board forthe Maharagama Depot with the 3rd respondent as Chairman. The3rd respondent was the Depot Superintendent of the MaharagamaDepot of the Colombo South Region Transport Board which hasbeen made the 2nd respondent to these proceedings.
The Commissioner determined that there should be three categoriesof eligible employees for the Maharagama Depot and he also fixedthe number of members to be elected to represent each category inthe Council which had to have a complement of eighteen membersunder section 10 (f) of the Act. These categories were:
Clerks and similar grades 3,
Skilled and semi-skilled 13, and
Unskilled and others 2.
The Commissioner directed the 3rd respondent to notify thecategorisation. The 3rd respondent complied. He compiled a list ofnames of eligible employees in alphabetical order separately for thethree categories and published a notice that the list was preparedJand was open for inspection. Any eligible employee was-entitledwithin seven days of the publication of the notice to claim that hisname be included in the list if his name had been omitted or toobject to the inclusion of any particular name. Such claims andobjections had to be submitted in writing to the Electoral Boardwhich had to place the matter before the Commissioner for his ruling.The Commissioner’s ruling was final and after amendment accordingto such ruling the list would be certified as the one upon which the
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election would be held. Within seven days of certifying the lists theelectoral Board had to publish a notice specifying the name of eachconstituency, the number of members to be elected for each constituencyand the names of those eligible to vote in each constituency.TheElectoral Board next hail to appoint an Elections Officer and notifyhis name by posting it up in the notice board and other conspicuousplaces of the unit of undertaking (Rules 2(1) to (9) and 3).
For the purpose of electing members to the Employees Councilthe eligible members could organize themselves into groups of anumber not less than the number of members to be elected to theCouncil. Each group had to have a leader and had to be recognisedby the Electoral Board. No eligible member could stand for electionunless he was a member of a recognised group (Rules 4(1) to (4)and 5(1) to (4)). In practice the grouping followed a political pattern.
In the case before us the 3rd respondent who was also the ElectionsOfficer complied with all the rules as set out above. He called fornomination papers for each of the categories as determined by theCommissioner to be submitted before 4.00 p.m. of 8th November1979 (Rules 6(1) to (8) ). He also fixed the election itself for 23rdNovember 1979. On 8th November 1979 the 3rd respondent dulyaccepted nomination papers from the members of the various groups.The petitioners submitted nomination papers for the category ofskilled and semi-skilled workers and these were accepted (Rules 7(1)to (2) and 8).
If the election was held as arranged there could have been nocause for complaint. On the 7th November 1979 however theCommissioner threw a spanner in the works. He sent a circular 1R1dated 7.11.1979 to all units of undertaking of the Ceylon TransportBoard advising that a broad meaning should be given to the term“supervisory capacity" so that employees in Grade 6 and below couldbe regarded as eligible employees and accordingly directing thatappropriate alterations in the lists of eligible employees "hithertoprepared or under preparation" be made.
No doubt the Commissioner has wide powers under the Act. Itis open to him to interpret the provisions of the Act. But wide ashis powers are he is nowhere given the power to rescind his owndecisions. On the contrary his determinations and decisions are in
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many instances described by the rules as final. Were it otherwisewhere do we draw the line? How many times can the Commissionerreview his own decisions and determinations? An interpretation suchas woujd stultify the working of the Act should not be given. Oncean electoral list is prepared and certified that list is the only validone for the election for which it was prepared.
It was the Commissioner who decided on the categorisation ofeligible employees. His decision on that was final – see rule 2(1) (a),(b) and (c) and rule 2(2). If the list prepared .in compliance withthis categorisation is found to have omissions or names of personsnot entitled to vote, it is for the Commissioner to rule upon it. TheCommissioner’s decision here too is final – see Rule 2(4) and (5).
The electoral list in the case before us had passed all these stages.The respondents say that the Commissioner issued IRI to ensure abetter representation. But even if the object was laudable the actionwas illegial. The circular 1R1 so far as it related to electoral listsalready prepared was illegal. Electoral lists yet to be perfected couldof cctorse be governed by it.
Before I leave this pojht I would like to make another comment.The Commissioner should have been aware that the elections hadto be conducted within a time-frame. This is what the. Legislaturehad willed. If owing to some special circumstances it becomesimpossible to adhere to the time-frame then the default could beexcused. If the prescribed time limits are not adhered to and thereare no exonerating circumstances then it will amount to a breach ofthe law. That the Commissioner acted bona fide I have no reasonto doubt. But owing to what the Commissioner did the time-scheduleshad to be broken with the consequence that thelegalityof the electionitself was affected.
What the Commissioner did tainted the first election with illegality.Yet it had at least the redeeming feature.that it was done in theinterests of ensuring as democratic an election as possible. But whatthe 3rd respondent did was to ignore the entire election law and setat naught the highly democratic objectives of the Act.
Let me examine the 3rd respondent’s role in regard to the election.The 1st and 2nd petitioners were members of the group of the
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Communist Party Trade Union Federation in the Maharagama Depotand the 1st petitioner was the group leader. The 3rd petitioner wasa member of the group of the Sri Lanka Freedom Party Trade UnionFederation in the same Depot: All three petitioners were eligibleemployees in recognised groups and therefore qualified to stand forelection to the Employees' Council of the Maharagama Depot.
The 1st and 3rd petitioners had worked at the Maharagama Depoton 7.11.1979 till evening. On 8.11.1979 they handed in their nominationsto the 3rd respondent who accepted thenr but did not allow themto sign the attendance register. The 3rd respondent informed themthat letters of transfer had been posted* to them on 7.11.1979 aridrefused to giveJ'fhferiv work at the Maharagama Depot.On 10.11.79the 1st and 3rd petitioner received letters of transfer dated 7.11.1979transferring thenV with effect from 8.11.1979 – the 1st petitioner tothe Kesbewa Depot and the 3rd petitioner to the Ratmalana Depot.The 2nd petitioner handed in his nomination paper on 8.11.1979which the 3rd respondent accepted. The 2nd petitioner was allowedto work on this day at the Maharagama Depot. On 9.11.1979 the2nd petitioner was handed a letter' of that date transfering him withimmediate effect to the Avissawella-‘Depot.’He was an EngineeringInspector and he was transferred from the Maharagama Depot whichwas understaffed in that Grade to Avissawella which was overstaffedwith Engineering Inspectors. Although the Chairman of the 2ndrespondent Board and the Minister himself directed the cancellationof these transfers the 3rd respondent found excuses for not complying.
The 3rd respondent in his affidavit denies the transfers of the 1stand 3rd petitioners were effected after the nomination papers werehanded in. He maintains that the transfers were effected on the 7thNovember. The 1st and 3rd petitioners have not placed proof availableto them to prove that the letters were not despatched on the 7thNovember. The 1st and 3rd petitioners could have produced theenvelopes'in which the letters of transfer were posted to them. Thedate-stafrip* on them would have thrown some light on the date ofposting.'Hence the Court will have to act on the basis that thetransfers Of the 1st and 3rd petitioners were effected on the 7thNovember. So far as the 2nd petitioner is concerned his letter oftransfer P4 was dated 9th November and the transfer was to beeffective on the same day. The letter P4 is conclusive that thistransfer was effected on 9th November.
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On 8th November the 3rd respondent accepted the nominationpapers of all three petitioners and of others. This was apparentlybecause the Commissioner’s circular 1R1 had not yet reached him.Therefore so far as the 3rd respondent was concerned 8th Novemberstood as nomination day. The inference then is that the 3rd respondenthad effected transfers of three eligible employees and not even thefact that on 8th November he knew they were also candidates servedto persuade him to stay the transfers. The suddenness of the transfersputs the bona fidcs of the whole action under a cloud. Nominationday should have been the last day to be chosen by the 3rd respondentto effect transfers of eligible employees. The circular 1R1 had norecognisable connection with these transfers. So far as the circularIRI went, one would have expected the 3rd respondent to bring tothe notice of the Conimissioner that nomination papers had alreadybeen accepted and election day fixed and asked for instructions.
No doubt the petitioners were liable to transfer in accordance withthe terms of their appointment. But this right should not have beenexercised so as to stymie the provisions of the Act. The 3rd respondentshould remember that a person who attempts to influence the electionby imposing any disadvantage or disability on an eligible employee,let alone a candidate, is guilty of an election offence punishableunder the Act (sections 16 and 49). The 3rd respondent on his ownshowing is guilty of contravening, the provisions of the Act by servingsudden transfer orders to be effective on nomination day on the 1stand 3rd petitioners and on the day after on the 2nd petitioner,further once he accepted nominations and had election day alsofixed he had no right to reject the nomination papers and postponethe elections. Even the circular 1R1 cannot redeem his' transgressing’the law.
What relief however can this Court give? The elections that wereeventually held on 10th January 1980 on nominations accepted on30th December 1979 were no doubt bad. However the Employees’Council elected in contravention of the law having completed its twoyear term is now no longer in office. A writ of mandamus at thisstage would be fuiile. A fresh election cannot be held on the electorallist of 1979 because of inevitable changes in personnel at the MaharagamaDepot. In the circumstances I do not interfere with the order of theCourt of Appeal.
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Hilda Jayasinghc v. Samarawickrema
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In regard to costs however I see no ground to justify an orderfor costs in favour of the 1st respondent and therefore set it aside.The petitioners came to Court as early as 6.12.1979 hut have beenunable to obtain relief because time has run out for them. Thissituation has arisen because of inevitable delays in the disposal ofthis.ease. The dispute in this case has been mainly brought aboutby the irresponsible manner in which the 3rd respondent has acted.Therefore I order the 3rd respondent to pay the petitioners the taxedcosts of the proceedings in this Court and in the Court of Appeal.Subject to this the appeal is dismissed.
Wanasundera J. – I agree.
Ratwatte J. — >1 agree.
Appeal dismissed