CA
Amarasinghe v. Co-operative Employees Commission, Madampe
Multi Purpose Co-operative Society
175
AMARASINGHE
v.
CO-OPERATIVE EMPLOYEES COMMISSIONMADAMPE MULTI PURPOSE CO-OPERATIVE SOCIETY
COURT OF APPEAL.
DR. ANANDA GRERO, J.,
C. A. 1294/85DECEMBER 08, 1992NOVEMBER 12, 1993
Appeals – Co-operative Employees Commission Act No. 12 of 1972 – Appeals tothe Commission by Employees, Societies – Regulations framed under Act 12 of72 – Nos. S. 135,137,138 – Government Gazette 169/8 – Oral hearing -Distinction drawn between appeals from an Order of Termination and otherOrders.
The services of the petitioner who was the General Manager of the 2ndRespondent Society were terminated on 12.1.84. He appealed to the Co-operative Employees Commission. The first appeal was dismissed on 21.9.94,The second appeal was also dismissed on 26.4.85. The Petitioner sought toquash the above said decision, and the decision of the 2nd Respondent Societydated 12.1.84. The Petitioner complains that he was not given a hearing and the1st Respondent Commission acted contrary to the principles of natural Justiceand Regulation 137.
Held:
There is no error on the face of the Record to quash the decision of the 2ndRespondent dated 12.1.84.
Regulation 137 states “In every appeal other than an appeal from an orderof termination of services or dismissal, the Commission may decide suchappeal on the basis of the written material in appeal.”
A reading of Regulation 137 reveals that the discretion is there for theCommission to decide an appeal on the basis of written material, but such anappeal is not one from an Order of termination of services or dismissal.
Framers of the aforesaid Regulation had intended that the Commissionshould hear the appeal of the employee against the Order of termination of hisservices or dismissal.
On a reading of the Regulations 135,137,138, it appears that, theCommission has to give an oral hearing before it makes an order in an appealmade by an employee against an Order of termination of his services ordismissal.
176
Sri Lanka Law Reports
[1995] 2 Sri LR.
Application for Writ of Certiorari.
R. K. S. Sureshchandra for Appellant.W. Dayaratne for 1st Respondent.
Cur. adv. vult.
January 20,1994
DR. ANANDA GRERO, J.,
The petitioner was the General Manager of the 2nd respondentMultipurpose Co-operative Society. His services were terminated bythe Chairman of the 2nd Respondent society by letter marked “I”dated 12.01.1984. Against such termination of his services, he hadappealed to the 1st Respondent, Co-operative Employee’sCommission as he was entitled to do so under the Co-operativeEmployees’ Commission Regulations published in the GovernmentGazette bearing No. 169/8 of 1.12.81.
His 1st appeal to the said Commission has been dismissed asseen by letter dated 21.10.84 (which is marked and annexed to thepetition as “K”).
A 2nd appeal has been made by him in terms of regulation 135 ofthe aforementioned Gazette, and this appeal too was dismissed bythe 1st respondent as seen by letter dated 26.4.85 (which is markedand annexed to the petition as ’’Mr).
The 1st respondent through its Chairman and Secretary by letterdated 14.8.85 (marked “0”) informed the petitioner that both hisappeals were dismissed under regulations 135 to 138 of theregulations published in the aforesaid Gazette.
Thereafter the petitioner by his petition dated 2.11.85 made anapplication for a mandate in the nature of a writ of certiorari in orderto quash the following decisions of the Respondents.
Decision of the 2nd Respondent dated 12.1.84.
Decision of the 1st Respondent dated 21.9.84.
Decision of the 1st Respondent dated 26.4.85.
CA
Amarasinghe v. Co-operative Employees Commission, Madampe
Multi Purpose Co-operative Society (Dr. Ananda Grero, J.)
177
At the request of this Court both counsel submitted their writtensubmissions. This Court perused the said submissions tendered toCourt by both counsel. This Court also considered the petition of thepetitioner along with the documents submitted to Court. Further theCourt perused the statement of objections filed by the 2ndrespondent along with the documents attached to the said statement.
Documents marked A, C, D, F, and H amply demonstrate that thepetitioner has been warned by the Chairman of the 2nd Respondentsociety against general inefficiency on the part of the petitioner. Byletter marked ‘F’ he had been warned of instances of insubordination.By letter marked ‘D’ he had been informed of negligence of duty andwarned him not to do so in future. No doubt the petitioner had repliedto these letters giving his explanations.
After a careful perusal of the said letters and the letters sent by thepetitioner to the Chairman of the 2nd respondent society, this Court isof the view that the 2nd respondent had acted in terms of Co-operative Employees Commission Act, No. 12 of 1972 and theRegulations contained in the Government Gazette No. 169/8.
Taking into consideration all the aforesaid letters and thesubmissions of both counsel, I am of the view that there is no error onthe face of the record to quash the decision of the 2nd respondentdated 12.1.84. Therefore no writ of certiorari lies against the decisionof the 2nd respondent and such application against the saidrespondent is hereby dismissed.
The next question is whether a writ of certiorari lies against thedecisions of the 1st respondent? The petitioner is entitled underregulation 135 of the Regulations published in the GovernmentGazette No. 169/8 of 1.12.81 to appeal to the 1st respondent againstthe decision by a committee of the society (i.e. the 2nd respondentsociety ). He is also entitled under the aforesaid regulation 135 tomake a second appeal to the 1st respondent Commission. He hadacted under the said regulation and the 1st respondent haddismissed his appeals.
178
Sri Lanka Law Reports
[1995] 2 Sri LR.
The grievance of the petitioner is, that he was not given a hearingand the 1st respondent acted contrary to the principles of naturaljustice. He says the 1st respondent has acted contrary to regulation137 of the Employees’ Commission Regulations published in theGovernment Gazette bearing No. 169/8 of 1.12.81.
Regulation 137 says:
“In every appeal other than an appeal from an order oftermination of services or dismissal, the Commission maydecide such appeal on the basis of the written material inappeal.”
The learned counsel for the 1st respondent referring to the saidregulation says that it does not say that the employees’ oral evidenceshould be heard, but the Commission can decide the appeal on thematerial available before it.
It is common ground that the appeal to the Commission (i.e. the1st respondent) by the petitioner was against an order of terminationof his services.
A reading of regulation 137 clearly reveals that the discretion isthere for the Commission to decide an appeal on the basis of writtenmaterial. But such an appeal is not one from an order of terminationof services or dismissal. In other words with regard to an appealother than an appeal from an order of termination of services ordismissal, the Commission is empowered to decide it on the basis ofwritten material before such commission.
A perusal of regulation 138 reveals that either the Commission candispose of the appeal, or a person nominated by such commissioncan hear an appeal from an order of termination of services ordismissal.
The learned counsel for the appellant referring to regulation 137states, that it is quite clear from the provisions in such regulation thatspecially in the case of an appeal against a decision regardingtermination of services of an employee that an oral hearing should begiven when it states that except in such a situation that theCommission can decide on the basis of the written materiel before it.
Amarasinghe v. Cooperative Employees Commission, Madampe
Multi Purpose Co-operative Society (Dr. Ananda Grero, J.)
179
CA
Although it is not specifically stated in regulation 137 that in caseof an appeal from an order of termination of services or dismissal theCommission should hear the appellant orally the reasonableinference that can be drawn is, that the appellant should be so heard.Under regulation 137, the Commission is empowered to hear anappeal other than an appeal from an order of termination of servicesor dismissal of an employee on the written material before it. Why is itspecifically stated “Other than an appeal from an order oftermination of services or dismissal” ? Because the framer orframers of the aforesaid Regulation had intended that theCommission should hear the appeal of an employee against theorder of termination of his services or dismissal. The hearingcontemplated is, oral hearing. If it was intended to hear the appeal onwritten material furnished by the appellant then the words “Otherthan an appeal from an order of termination of services ordismissal” need not be so specifically stated in Regulation 137.
Once the services of an employee are terminated he loses his job.Such an act seriously affects his whole life. Therefore it is nothing butright for such a person to permit to make not one appeal but twoappeals (as contemplated in Regulation 135) to the Commissionagainst such termination or dismissal. Such a person should be givena fair hearing and that too to satisfy the Commission orally that theorder of termination or dismissal was wrong. When such anopportunity is given he may be able to explain what has been statedin his petition of appeal and the Commission too is in a better positionto question him and thereafter to arrive at a fair, and reasonabledecision.
W. R. Wade on Administrative Law, 5th Edition at page 499states:
“An opportunity for the employee to state his case, andapart from the code, (or Regulations etc) fairness alonewill require that in most cases.”
This Court is of the view that the Commission has to give an oralhearing before it makes an order in an appeal made by an employeeagainst an order of termination of his services or dismissal.
180
Sri Lanka Law Reports
[1995] 2 Sri L.R.
Further more in this case, when the Commission had come to afinding that because of the petitioner’s ill health he was inefficient andon that basis the appeal was rejected, as revealed by document ‘K’,it is fair and reasonable to hear him orally before his appeal isrejected. It appears that the question of ill health causing inefficiencywas not a ground upon which the 2nd respondent took steps toterminate his services. It was general inefficiency due to failure on hispart to take appropriate steps in the administration of the society thatled to the finding of the 2nd respondent that he was guilty of suchinefficiency.
When the petitioner by his appeal (2nd) dated 15.11.84 pointedout to the Commission that nothing was revealed in the letter oftermination of his services that it was due to his ill health that he wasfound inefficient the Commission at least should have afforded anopportunity to explain his case orally, before it rejected his secondappeal.
In the aforesaid circumstances this Court is of the view, that the 1strespondent Commission has acted in such a manner without givingthe petitioner an opportunity to be heard (orally) and/or in violation ofthe principle of natural justice, i.e. to say that he was not given aproper hearing before his appeals were decided. In thecircumstances, both decisions of the 1st respondent Commission arehereby quashed and this Court acting in Revision directs theCommission to re-hear his 2nd appeal with notice to him. TheCommission should afford him an oral hearing when his appeal istaken up for hearing.
Writ of certiorari issued quashing the aforesaid decisions of the 1strespondent, and directing the Commission, to re-hear the 2nd appealof the petitioner as stated above. Petitioner is entitled to recoverRs.350/- costs from the 1st respondent.
Application allowed
