C. I. GUNASEKERA, Petitioner and W. P. L. DE MEL, COMMISSIONER OF LABOUR and

047-NLR-NLR-V-79-2-C.-I.-GUNASEKERA-Petitioner-and-W.-P.-L.-DE-MEL-COMMISSIONER-OF-LABOUR-and.pdf


409
CunaacUern v. Commissioner of Labour
1978 Present: Udalacama, J., Ismail, J. and Tittawella, J.
I. GUNASEKERA, Petitionerand
W.P. L. DE MEL, COMMISSIONER OF LABOUR andTWO OTHERS, Respondents
S. C. Application 530 of 1976
Tcvsiinntier, o/ Employment of Workmen (Special Provisions) ActNo. 45 of 1971, sections 2, 5—Emergency (Miscellaneous Provi-sions and Powers) Regulation No. 4 of 1974, regulation 38 (1)–Letter by workman to employer that he toould- not take actionto implement certain insructions—Whether speh letter a termi-nation or vacation of employment within the meaning of regula-tion 39 (1)—Need for a finding that such yAorkman failed orrefused to perform such work ap he may be directed—Failure byTribunal to address its mind to relevant, question—Employer heldto have terminated services'on disciplinary] grounds—Can suchfinding be sustained—Mode of interpretation of regulation—Writof Certiorari quashing order.
The petitioner was nt the relevant time Manager, Motor Depart-ment, Walker Sons Sc Co. Lid. (3rd respondent). It was commonground that he was a “workman” within the meaning of theTormina ion of Employment- of Workmen (Special Provisions) Act,No. 45 of 1271. and that his was a “scheduled employment” as setout therein, fn a letter to the employer dated 18th April, 1974, thepetitioner stated, inter alia, as follows:—“It is with regret, there-fore, I have to inform you that I will not take action to
implement these instructions.” He gave as the reason that the saidinstructions, which pertained- to the manner of disposal of motorspares, were abhorrent to his conscience and principle.
The petitioner was informed by letter dated 26th April, 1974,that he had by his conduct contravened certain emergency regula-tions and was deemed “ to have terminated – or vacated ’’ hisemployment from 18th April, 1974. The petitioner accordinglyceased to be in the employment of the 3rd respondent thereafter.
The petitioner then addressed the Commissioner of Labour (1st. respondent) and thereafter the 2nd respondent was directed t-ohold an inquiry under the said Act No. 45 of 1971. On 31st May,1976. the 2nd respondent' made order that ho was satisfied that thetermination of the petitioner’s services was on disciplinary groundsand accordingly he recommended that the position taken up by the3rd respondent musl be upheld. This order was in the form of arecommendation and was submitted to the 1st respondent who byletter deled 21st June. 1076. informed the petitioner that his com-nlaint w:..; not covered by the provisions of the said Act No. 45 of1071, as his employment had been terminated on disciplinarygrounds. The petitioner applied for a Writ of Certiorari to quashthis order
Although in its letter of 26th April. 1974, the 3rd respondent hadreferred to regulation 13 (1) of the Emergency Regulations, it wasagreed that the relevant provision was regulation 38 (1) whichread, inter alia, as follows: —
“ Whore any services is declared by any order made bythe President to ho an essential service, any person who onor after April 1, 1974, was engaged or employed on any workin connection with that service…. who fails or refuses, after
(Vol. 79—11, Pt. 18, pp. 409-432)
1*_A 54640 (81/01.)
410
Qvnrsekera v. Commissioner of Labour
the lapse of one day from the date of such order to -performsuch work as he may be directed, by the employer. . . heShall,
be deemed for all purposes to have forthwith terminated
or vacated his employment notwithstanding anythingto the contrary in any other law or the terms or condi-tions of any contract governing his employment ; and
in addition, be guilty of an offence. ”
Held: (1) That the evidence available at the inquiry did notdisclose a failure or refusal by the petitioner to perform such workas he might have been directed to. Whilst there had been a declar-ation by the petitioner, no reasonable person could on the materialavailable reach the conclusion that there has, in fact, been anyfailure or refusal lo perform any assigned tasks.
(2) The regulation in question pertained to certain circumstancesthat follow when persons in the specified category *' failed orrefused to perform such work as may be directed”. It does notdeal with insubordination or with disciplinary action. The 2nd. respondent who held the inquiry and made the order complainedof had singularly failed to address his mind to the crucial question,namely, whether there had been a refusal to follow any directionor order, by a consideration and an analysis of the facts andcircumstances in the case in the light of material placed-beforehim by the petitioner.
(3.’ That accordingly a Writ of Certiorari should be issuedquashing . the proceedings held by the 2nd respondent and theorder made by the 1st respondent.
Per Tittawella, J.: “ It is plain that the essence of the regula-tion is the failure or refusal to perform such work as may bedirected. There must first be a direction followed by a failure orrefusal. On any analysis of the elements of the regulation bearingin mind that it was one made under the Public Security Ordinancefor an emergency, situation in respect of a service declared to bean essential service (it being agreed that the petitioner falls intothis category) carrying with it heavy penalties, it is unthinkable: that a mere declaration of a refusal to perform work in the futurewas ever intended to be brought within its ambit. The words ofthe regulation construed in the spirit of it do not lend themselvesto such a wide interpretation. There must in fact be a failure,or refusal with respect to any work that has been directed tobe performed. It is a well accepted rule of construction that wherea section imposes a penalty—and such is the case in the presentcase—if there is a reasonable interpretation which will avoid thepenalty in any particular case we must adopt that construction.If there are two reasonable constructions we must give the lenientone. A Court will not hold that a penalty has been incurredunless the language of the section which is said to impose it isso clear that the case must necessarily be within it. (Tuck &Sons-v. Priester, 19. Q.B.D. 629 at 638 and at 645), (Dyke v-Elliott, .Appeal Cases 1871-73, 4 P. C- 184 at 191).”
Cases referred to :
Wijerama v. Paul, (2973) 76, N.L.R. 241.
Tuck & Sons v. Priester, (1867) 19 Q.B.D. 629 ; 3 T.L.K. 32fi. C.A : 56■ L.J. Q.B. 553 ; 36 W.R. 93.
■ Dyke v, Elliott. The Gauntlet, (1872) L. R. 4 P.C. 184 : 26 L.T. 45 : 29W.R. 497.'
R. v■ Electricity Commissioners, (1924) 1 K.B. 171.
Virakesari Ltd. v. P. O. Fernando & Others, (1963) 66 N.L.R. 145,
TITTA'.VICLLA. J- -Outmeckera v. Commisaioiier of Labour41 1
APPLICATION for Writs of Certiorari, Procedendo and
Mandamus.
H. W. Jayewardene, Q.C., with H. L. de Silva and Mtss P.N avaratnarajah, for the petitioner.
S. VI7. B. W adugodapitiya, Deputy Solicitor-General, with S.Ratnapahi, State Counsel, for the 1st and 2nd respondents.
C. Rangancuthan, Q C., with P. Navaratnarajah, Q.C. andP. Mandaleswaran, for the 3rd respondent.
Cur. adv. vult
August 4, 1978. Tittawella, J.
This is an application under section 12 of the Administration ofJustice Law, No. 44 of 1973, for writs in the nature of certiorari,procedendo and mandamus. Almost at the outset the petitioner’sCounsel restricted himself to the application for a writ of certio-rari to quash the order dated 21st June, 1976, of. the Commis-sioner of Labour, and the connected proceedings.
The petitioner at the relevant times was tlhe Manager, MotorDepartment of Walker. Sons & Co. Ltd-, the third respondent,lie had commenced employment under this Gfompany as anexecutive in 1949. In 1951 he was promoted to the SeniorExecutive Grade, and from 1971 held the post of Manager, MotorDepartment. The first respondent is the Commissioner of Labourand the second respondent, J. C. Motnan, is a Labour Officer ofthe Department of Labour to whom was delegated by the firstrespondent under section 11(2) of the Termination of Employ-ment of Workmen (Special Provisions) Act, N.o. 45 of 1971(hereinafter referred to as the Act) the duty of holding aninquiry.
In March 1974 Walker, Sons & Co. Ltd., had received fromthe Government an allocation of money for the importation ofmolor spares T'ne manner 'in which this allocation was to bedistributed between the Motor Department, Motor RepairsDepartment and the Dealers had been the subject of discussionas the existing arrangements were not considered to be satis-factory. Certain decisions were made by the Management anddraft instructions were accordingly prepared and embodied ina circular letter lo all the departments including the MotorDepartment and the Motor Repairs Department. This circularletter issued under the hand of A. L. Perera, the Co-ordinatingSecretary, bore the date 1st April, 1974. and it also summoned the
412
TITTA W J2L LA, J.—Cunatsekera v. Couunissioner oj Labour
– – – — – -a
heads of departments including the petitioner for a conferencethe next day i.e., the 2nd April, 1974. This document which wasmarked “ A ” in these proceedings is reproduced below :
“A”
1st April, 1974.
Our Ref. ALP : YM. '
The Manager, M.D.—Two extra copies are enclosed herewith.The Manager, M.R.
1974 Allocation for Motor Spares
At a meeting with the Company’s Agents held recently, thefollowing decisions were made —
The recent allocation of 1.3 million for motor spares
is to be apportioned in the following manner : —
33 1/3 per cent to dealers,
40 per cent to M.R. and Branches, and
26 2/3 per cent to M.D.
Dealers’ Allocation.—Dealers are to be requested to
place orders for the spares they require and ourindent to the manufacturers is to be based on this.
M.R/s Allocations.—M.R. is to decide on what spares
are to be ordered. A circular letter is to be sent toBranches by CS/ALP requesting them to state theirrequirements of spares. Copies of their replies to besent to M.R. The final form of the M.R. indent willbe decided ion by CS/ALP in consultation with M.D.and M-R-
' (4) M.D. will order such spares as they consider they requireand this list will also be submitted to CS/ALP beforeit is sent to the manufacturers.
These spares will be sold over the counter as at present.
The present- system; of registering customers is to beabandoned, except so far as they relate to GovernmentDepartments and corporations. All sales will be on a cashbasis. Where M.R. makes a requisition for spares inexcess of 40% allocation referred to above, these will besupplied on a cash basis at M.D’s selling price. Such pur-chases by M.R. will not be taken into M.R. stock. M.D. willnot in future refuse to release any spares to M.R. if sparesare available.
T ITT A WE LI. A, J.—Ounasekera v. Commissioner of Labour
413
The Agents desire to be kept informed of- the progress oftine indents placed and the action being taken at every stage.
*. • . ' –
A conference to discuss the manner in which these deci-sions are to be implemented will be held in my office at8.30 a.rn. on 2.4.74. Wtill the following please be present:—
IvID/CIGMD/Mr. Balasubramaniam.
MD/Mr. de MelMR/CS.
cc./GS/P.Sgd. .CS/ALP.
At the conference the petitioner had stated that he did notagree with the policy laid down in the letter “A” as it had farreaching implications but was always ready to take note of theCo-ordinating Secretary’s instructions. The Co-ordinating Secre-tary had then inquired from the petitioner whether this meantthat he (the petitioner) was not prepared to assist in implemen-ting these decisions and the petitioner had stated that he had nocomments to make.
On the 18th April, 1974, the petitioner despatched the follow-ing letter to Messrs. Walker, Sons & Co. Ltd., the third
respondent—
t
REGISTERED POST
Our Ref : MD : CIG : VJ.Mr. B. T. B. Pulle,
Director,
George Steuart & Co. Ltd.,Managing Agents,
Walker Sons & Co. Ltd.,Main Street,
Colombo 1.
“B ”
Motor .Department,Walker. Sons & Co. Ltd.,Colombo 1.
18th April, 1974.
Dear Sir,
1974 Allocation for Motor Spares.
I refer to the instructions dated 1st April,. 1974, under theabove heading and issued to me under the signature ofMr. A. L. Perera. It is stated therein that these instructionsare decisions made by the Company’s Agents and I have nowhad an opportunity to give the subject matter my fullestconsideration. I find that, with the exception of Para. 1Clause (a) which is mandatory, the instructions areabhorrent to my conscience and principles.
)<-._A 61640 (81/01)
41-1TITTAYVELLA, J.—Gunasekera v. Commissioner of Ltibour
– It is with regret, therefore, I have to inform you that as. Manager, Motor Department, I will not take action to imple-ment these instructions.
Yours faithfully,
jC. I. Gunasekera,
Manager, Motor Department.
Copy to :
Mr. T. A. Moy,
Chairman,
George Steuart & Co. Ltd.,
Colombo'1.
Shortly thereafter the petitioner received the following letterfrom the third respondent—
“ C”
WALKER SONS & CO. LTD
P. O. Box 166Colombo26th April, 1974
OUR REF.: TAM:.DP.
Mr. C. 1/ Gunasekera,
Motor DepartmentDear Sir,
We have to acknowledge receipt of your letter dated 18.4.74 andhave taken note of your refusal to carry out the orders givenin the letter dated 1st April, 1974, sent to you by Mr. A. L. Perera,Co-ordinating Secretary-
In these circumstances, we hereby inform you that you haveby your conduct contravened Regulation 13 (1) made underSection 5 of the Public Security Ordinance published in GazetteNo. 14,949/7—1971 of 16.3.1971 read with the Order under theEmergency (Miscellaneous Provisions and Powers) RegulationsNo. 2 of 1971 published in the Gazette Extraordinary No.14,953/26 of '15th April, 1971, and consequently you are deemedfor all purposes to have terminated or vacated your employmentas from 18th April, 1974.
You will accordingly hand over all files, documents, papers,Car No. 4 Sri 3336, its switch key, other accessories to the saidcax and other articles of the Company’s property in your posses-sion to Mr. A. .L. Perera, on receipt of this letter.
Yours faithfully,
for Walker Sons & Co. Ltd.
Sgd :
T. A. MoyChairman,
Managing Agents—GeorgeSteuart & Co. Ltd.
415
TITTAW’iH.I.A, J.-—GiutaackeTa v. Commissioner of Labour
The petitioner accordingly ceased to be in the employment ofthe third respondent thereafter. He sent a letter on the 29thApril, 1974, protesting against the conduct of the third respon-dent stating inter alia—
I hereby place on record that I cannot by my conductbe deemed for all purposes to have terminated or vacatedmy employment as stated in your letter.
On the 15th August, 1974, the petitioner addressed theCommissioner of Labour (Termination of Employment Unit)and thereafter as stated earlier the second respondent wasdirected by the first to hold an inquiry under the Act. Thiscommenced on the 5th of September, 1974. There were ninedates of inquiry terminating on the 12th June, 1975. Writtensubmissions were submitted on a number of occasions by Coun-sel for the petitioner as well as the Counsel for the thirdrespondent after which the second respondent made his orderor. the 31st May, 1976 in the form of a recommendation to theDeputy Commissioner of Labour. The order 'embodied findingsand reasons for the conclusion reached which was asfollows: —
I am quite satisfied that the termination of Ihe applicant’s(i.e., the petitioner’s) services is on disciplinary groundsand therefore I recommend that the Company’s positionmust be upheld.
The reasons and conclusions of the second respondent weresubmitted to the Acting Commissioner of Labour who in aletter dated 21st June, 1976, . informed the petitioner asfollows : —
Sir,
Termination of EmploymentRe your letter of 15. 8. 74.
As your employment has been terminated on discipli-nary grounds the complaint is not covered by Act 45 of1971 Termination of Employment (Special Provisions).
This is the order that is now sought to be quashed by thepetitioner in these proceedings.1
At the outset there was some argument before us as to whatconstituted the record in this matter. The following documentswere before us—
(a) the petition and affidavit of the petitioner dated the22nd July, 1976, together with the documents that
accompanied them.
.416
T1TTAWELLA, J.—Gunaackera v. Commissioner of Labour
f (b) the further affidavit of the petitioner filed on the 13thDecember, 1977, together with additional documents.
The respondents had filed no affidavits or other papers but thefollowing documents had been called for by this Court and werebefore .us : —
the proceedings. before the second respondent at fhe
inquiry held under the Termination of Employmentof'Workmen (Special Provisions) Act together with. ;all the documents produced by both parties.
the File of the Commissioner of Labour relating to this
matter.
It was agreed that all these documents were available forscrutiny by us and this would be in accordance with the viewexpressed by T. S. Fernando, J. in the Court of Appeal inWijerama v. Paul, 76, N.L.R. 241 at 255.
The main matter, that calls for examination is the statementof reasons given by the second respondent for the conclusion hereached on the 31st May, 1976, that the termination: of thepetitioner’s services was on disciplinary grounds and thereforenot covered by the provisions of the Act in view of section 2 (3)of the said Act. Section 2 (1) of the Act is in the followingterms—
“ 2 (1) No employer shall terminate the scheduled,employment of any workman without—
■. (a) the prior consent in writing of the workman, or
(b) the prior written approval of the Commissioner.”
Section 2 (3) of the Act is as follows : —
“2 (3) For the purposes of this Act the scheduledemployment of any workman shall.be deemed to be termi-nated by his employer if for any reason whatsoever other-wise than by reason of a •punishment imposed by way of'disciplinary action.”
Secion 5 of the Act states—
“ Where an employer terminates the scheduled employ-ment of a workman in contravention of the provisions of- this Act such termination shall'be illegal, null . and. void' – and accordingly shall be of no effect whatsoever.” '. ' –
(There hals, been no . dispute in this case, that the petitioner wasa.“-workman” and that his was a “scheduled employment” asdefined in the Act.
TITTAWELLA, J.—Gunasekera v. Commissioner of Labour41/
At the very commencement of the inquiry before the secondrespondent Counsel fcrr the petitioner and the third respondentstated their respective positions. On behalf of the petitioner itwas submitted that at no time did he refuse to perform anyduties or carry out any orders and therefore the third respon-dent had no right to act in terms of Regulation 38 (1) of theEmergency 'Regulations. The petitioner it w^s submitted did noact that warranted him being brought under this Regulation.If the third respondent desired to terminate the services of thepetitioner this should have been done under the Act afterobtaining his consent or the prior approval of the Commissionerof Labour. This not having been done it was submittedthat the termination of employment of the petitioner was nulland void and of no consequence whatsoever. The position of thethird respondent Company as stated by their Counsel was—
Broadly our position is that termination as such doesnot arise here for the reason that Mr. Gunasekera (i.e- thepetitioner) by his conduct as evinced by his letter of the18th April, 1974, has brought himself within the EmergencyRegulations and thereby consequently vacated his post.
The issues before the second respondent were therefore veryclear. He had to determine whether the petitioner ceased to bein the employment of the third respondent—
by the third respondent terminating his employment, or
by the petitioner vacating his post by bringing himself
within Regulation 38(1) of the Emergency Regulations.
If the third respondent terminated the petitioner’s employmentit was only clone by resorting to the Emergency Regulations. Ifthe petitioner vacated his post as was contended for by the thirdrespondent it was also because of the application of the Emer-gency Regulations. In either event a duty was cast on the secondrespondent to match the contents of this emergency regulationwith the actions and conduct of the petitioner and determinewhether he fell within the liability imposed by the saidregulation.
The letter of the 26th April, 1974, by the third respondentinformed the petitioner that he has terminated or vacated hisemployment by the contravention of “Regulation 13 (1) madeunder section 5 of the Public Security Ordinance published inGazette Ho. 14,949/7—1971 of 16.3.71.” Under section 2 (2) of thePublic Security Ordinance a Proclamation declaring that Part IIof the Ordinance shall come into operation shall be in operationonly for a month and the Proclamation and the regulations made
4X8
TITT AW ELLA, J.—Gunasekerav. Commissioner of Labour
under Part II of the Ordinance cease to have any force or validitythereafter. Accordingly on the date of this letter, i.e. the 26thApril, 1974, the regulation regarding which there had been analleged contravention had long ceased to exist and was of novalue or significance. This was a deplorable‘lapse on the part ofthe third-respondent Company in such a grave matter but it wasagreed by-all concerned that the operative regulation was Regu-tion 38 (1) -of the Emergency (Miscellaneous Provisions andPowers) Regulation No. 4 of 1974 published in Gazette Extra-ordinary No. 105/5 of the 1st April, 1974- It is as follows : —
38. (1) Where any service is declared by order made by. the President, under regulation 2 to be an essential service,
, any person, who on or after April 1, 1974, was engaged oremployed, on any work in connection with that service, failsor refuses, after the lapse of one day from the date of such>;order,-to attend at1 his place of work or'employment or suchother .place- as may- from time to time be designated• .by.his employer, or a person acting under the authority of■ his employer; or who fails ’or refuses, after the lapse of oneday from the date of such order, to perform such work as hemay be directed, by his employer or a person acting underthe authority of his employer to perform, he, shall, notwith-standing that he has failed or refused to so attend or to so-work in furtherance of a strike—
(a) be deemed for all purposes to have forthwith termi-;• nated or vacated his employment notwithstandinganything to the contrary in any other law or the termsor conditions of any contract governing his employ-" ‘ – ‘ ment; and
– – (b) in addition be guilty of an offence.
Regulation 45 of these regulations prescribes the punishment-for the contravention of any regulation to be rigorous imprison-ment for a term not less than three months and not exceedingfive years in addition to a fine not exceeding five thousand rupeeson conviction after trial before a Magistrate. Regulation 58 pres-cribes that no prosecution for an offence under the EmergencyRegulations shall be .instituted except by or with the writtensanction of the Attorney-General.
The relevant and operative portion of regulation 38 (1) couldbe set down as follows :—
-'(a) Any person in an essential service who
fails or refuses to
perform such work as he may be directed
TiTTAWfCLLA. J. -Ouiiasekera o. Oommiaaioutr of Labour-410
(ci) shall be deemed to have terminated or vacated hisemployment and in addition
be guilty of an offence.
it is plain that the essence of the regulation is the failure orrefusal to perform such work as may be directed. There must firstbe a direction followed by a failure or refusal- On any analysis ofthe elements of the regulation bearing in mind that jt was onemade under the Public Security Ordinance for an emergencysituation in respect of a service declared to be an essential service(it being agreed that the petitioner falls into this category)carrying with it heavy penalties, it is unthinkable that a meredeclaration of a refusal to perform yvork iit the future was everintended to be brought within its .ambit. _ The words of theregulation construed in the spirit of it do,not lend themselvesto such a wide interpretation. There must in fact be a failureor refusal with respect to any work that has been directed toho performed. It is a well accepted rule of construction thatwhere a section imposes a penalty—and such is the case in thepresent one—if there is a reasonable interpretation which willavoid the penalty in any particular case wo must adopt thatconstruction. If there are two reasonable constructions we mustgive the lenient one. A Court will not hold that a penalty hasbeen incurred unless the language of the section which is saidto impose it is so clear that the case must necessarily be withinit. (Tuck & Sorts v. Priester, 19, Q.B.D. 629'at 638 land at 645)
(Dyke v. Elliott, Appeal Cases 1871-73, 4 P.C. 184 at 191).
With these considerations in mind it becomes necessary toexamine the material available to ascertain whether the peti-tioner’s conduct falls within the ambit of this regulation. Neitherat the inquiry before the Labour authorities nor at the argumentin appeal was there any clear and unambiguous demonstrationof the work that the petitioner either failed or refused to performafter being so directed. No prosecution of the petitioner for anoffence under the Emergency Regulations was launched orpossibly ever contemplated. It would be fair to state that thechances of success in such a prosecution were extremely slender.
At the inquiry before the second respondent the sole witnessfor the third respondent was A. L. Perera, the Co-ordinatingSecretary. His evidence in chief consisted sole'ly in referring tothe affidavit sworn to by him on the 6th November, 1974, andproduced in evidence..In paragraph 10 therein he has categorisedthe “ refusals ” of the petitioner and it becomes necessary todeal with them in some measure of detail.
420
TITTAWELLA, J.—Ounasekera v. Commissioner of Labour
-According to paragraph 10 (b) of this affidavit the petitionerwas directed by A. L. Perera’s letter of 1st April 1974 to writeor request dealers to place orders for the spares they require onthe basis of which the indent to the manufacturers was to bemade. This paragraph further states that at the conference heldon the 2nd April, 1974,. for the discussion of the implementationof the instructions Mr. Gunasekera (the petitioner) had declinedto draft the letter to the dealers in that he said that he was notwilling to do so. A. L. Perera states that this was a refusal of thedirections or instructions in paragraph (2) of the letter of 1stApril, 1974.
-Firstly the letter of '1st April, 1974, which was addressed to thepetitioner amongst others is one informing him of the decisionsand not one containing directions made at a meeting of thecompany’s agents. The relevant paragraph relating to dealersallocations reads thus :
Dealers allocations—Dealers are to be requested to place: orders for the spares they require and our indent to themanufacturers is to be based on this.
It does give a direction that the petitioner should draft a letterto the dealers- What transpired at the conference of the 2ndApril has been set down by A. L. Perera in the notes of thatmeeting which have been produced marked “ B ” at the inquiry.Relating to dealers allocations the following note had been madeby A. L.. Perera on the 2nd of April itself.
The petitioner stated that they were prepared to listen toany instructions on the matter and did not think it desirableto draft any letter on' their own. The memo of 1.4.74 wasquite clear and both the petitioner and MD/MB suggestedthat the form of letter be drafted and sent to them- CS/ALP, (i.e. A. L. Perera) then agreed to send them a draft of theletter to be sent to dealers-
These notes prepared by A. L. Perera himself and dated the2nd April, 1974, do not indicate that the petitipner “ refused ” todraft a letter to the dealers. The’position is made clear furtheron.a perusal.of A. L.,Perera.’s evidence at,the inquiry. At page12 of the proceedings of the 7th. November,. 1974, the followingquestion and answer appear—
Q. But the circular itself of 1st April does not give a specificinstruction or direction to anybody to draft a letter ?
A- Well, I suppose so. .
TITTAH'ELLA, J.—Gunasekera v. Commissioner of Labour
421
In this connection it is of relevance to consider what the peti-tioner did or failed to do regarding the dealers’ allocations. Someinstructions had been given to the petitioner by A. L- Perera inthis regard and the latter in a communication dated the 17thApril, 1974, addressed to the petitioner on the subject of thiscircular letter to dealers had this to say : —
Circular letter to dealers
I acknowledge receipt of your memo dated 17.4.74 on theabove subject with thanks and appreciate the promptnessin dealing with this matter-
In this state of facts which have not been seriously contestedit is difficult if not impossible to say that there has been on thepart of the petitioner “ a refusal of the directions or instructionsin paragraph (2) of the letter of the 1st April, 1974 ”,
According to paragraph 10 (d) of A. L. Ferera’s affidavit theletter of the 1st April, 1974, directed the petitioner to—
submit his own order for spares to A. L. Perera before itwas sent to the manufactur. Mr. Gunasekera by his letterof the 10th April, 1974 “ refused ” to carry out this directioncontained in paragraph (4) of the letter of 1.4.74.
Paragraph (4) referred to herein is as follows: —
M.D. will order such spares as they consider they requireand this list will also be submitted to CS/AL. P., (i e. A. L.Perera) before it is sent to the manufacturers.
A. L. Perera in his evidence at the inquiry has been cross-examined on this matter. The proceedings of the 7th November,1974, show that he has admitted the fact that on the 18th April,1974, which is the date of the petitioner’s letter the time tosubmit M. D.’s requirement for spares had not yet come—(videpage 15 of the .proceedings of this date) —
Q. Are you categorically stating that Mr. Gunasekera himselfin fact did not submit his requirements for spares—you have said so in the affidavit ?
A. The time for that has not come.
Further on, in the proceedings of that date—,
Q. But in fact he did not refuse to carry out these instruc-tions ?
A. But in fact as far as I know I believe that his assistantswere continuing with the preparation of the indentsand allocations.
422
TITTAWELLA, J.—Qunasckera v. Commissioner of Labour
. Q. As to whether they .were being done on the instructions.given by Mr. Gunasekera prior to his leaving or not
you do not know ?
. . A. I do not know.
* t *
It will thus be seen that A. L. Perera’s own evidence is to theeffect that in this matter the time had not yet arrived for t^epetitioner to carry out any directions and the question of arefusal by the petitioner cannot therefore arise.
Paragraph 10(b) of the affidavit of A. L. Perera is to thefollowing effect: —
. The petitioner .was directed to abandon—
– the system of registering customers. for the purchase of• motor spares (with certain exceptions). By his said letterthe petitioner had refused to carry out this direction.
In this connection the first matter is that the registering ofcustomers was not done by the petitioner. A- L. Perera at page25 of. the proceedings of the 7th November, .1974. admits • thatthe, actual registering of the customers was done by Balasubra-maniam and de Mel and, that the petitioner was only theirsuperior. The following appear in the transcript of evidence ofthat date : —
Q- You cannot say as to whether in fact he (the petitioner)refused to abandon the registering of customers ?
A. Certainly apart from that letter he did not say that heis refusing to carry out instructions.
Q. The direction was—do not register customers ?
A. Yes.
Chairman: Did he register customers despite his beingasked not..to register ?
A. Not to my knowledge.
On a consideration of- the totality of A. L: Perera’s testimonyat the inquiry it is abundantly clear that he is not able to giveany direct.evidence of any occasion where the petitioner refusedto carry out any instructions or orders.' He has only inferred assuch from the letter of the petitioner dated the 18th April, 1974.At page 7 of the proceedings of the 11th November, 1974, thefollowing appears—
Q. In your affidavit that you have sworn to you state that, . he (the petitioner) has refused to carry out yourinstructions ?
A. Yes.
TITTAWELLA, J.—Ciuiuivikcra v. Commissioner qj Labouri-'S
Q. Why do you say that ?
A. I have done so in the context of the letter of-the 18th ofApril and his behaviour on the 2nd April.
Q. You have only inferred from his conduct and his letterthat he has not carried out the instructions ?
A. Yes, I certainly have-
Q. After he wrote his letter of the 18th of April you did nottry to find out whether in fact he refuged to carryout the instructions or not ?
A. No. I did not.
At page 10 of the same day’s proceedings— y-
Q. Up to date you are not aware of {fgiggl£ Instruction whichMr. Gunasekera in fact "refused to.car^y out ?
A. Except that having behaved in the manner in which hebehaved on the 2nd April the whole thing culminatedin his letter of the 18th April.
At the inquiry the petitioner called as his witness de Mel andBalasubramaniam, two officers in the Motor Department workingunder the petitioner. They were both quite sure that the peti-tioner at no stage asked them not to carry out any instructionsor orders and that until the petitioner”s services were termina-ted he carried out his normal duties and functions.
The available evidence is clearly in one direction and it istherefore not, as stated before, without significance that neitherbefore the labour authorities nor at the argument, in appeal wasthere a clear demonstration of the directions given to the peti-tioner or of the work (if any) he failed or refused to perform.Whilst there has been a declaration by the petitioner no reason-able person can on the material available reach the conclusionthat there has in fact been any failure or refusal to perform anyassigned tasks. Futhermore no one has even remotely sugges-ted that the conduct of the petitioner l?y writing the letter dated18th April, 1974, has caused the slightest detriment to the thirdrespondent firm or to the interests of public security,preservationof public order or for the maintenance
of supplies and services essential to >tlthe life of thecommunity. His conduct did not indicate in any waythat he was repudiating the contract of service he had with thethird respondent. The eventual punishment meted out to himwas therefore in any event altogether excessive and wholly outof proportion to the occasion. Be that as it may the task befor-ethis Court is to determine whether certiorari lies in the present
CciSG.
424
T ITT A VK LL A, J.—Ounasekera v. Commissioner of Labour
To repeat the oft quoted dictum of Atkin, L. J. in Rex v-Electricity Commissioner, (1924) 1 K.B- 171 : —
Wherever a body or persons having legal authority to de-termine questions affecting the rights of subjects and havingthe duty to act judicially act in excess of their legal autho-rity, they are subject to the controlling jurisdiction of theKing’s Bench Division.
In the case of Virakesari Ltd. v. P. O. Fernando and others, 66
N.L. R. 145, Weerasooriya, S. P. J. said thus : —
It is well settled that the order of an inferior tribunalhaving a duty to act judicially in determining the rights of. parties is liable to be quashed by writ of certiorari for anerror of law appearing on the face of the. record. In thisconnection “ the record ” includes not only the formal order,but also all the documents which form the basis of decision.
There is no question, that the order of the second respondent isreviewable by a writ of certiorari if the petitioner could estab-lish that there is an “ error of law on thje face of the record ”.For this purpose it becomes necessary to examine the reasonsoofthe' second respondent of the 31st May, 1976, which formed thebasis of the order dated the 21st June, 1976, which is sought tobe quashed now.
The second respondent .more or less commences his order bystating—“ In my opinion this is a pure, and simple case of termi-nation on disciplinary grounds ”… After stating the positions ofthe petitioner and the management he states—“ There is no doubtthat by R5 (i.e. the Circular letter of 1st April, 1974) the appli-cant (i.e. the petitioner) was directed by the management to docertain items of work ’’. At no stage in his order has the secondrespondent posed to himself the questions at issue or addressedhis mind to the various items of evidence placed before him atthe inquiry. In short he gives no reasons for arriving at thesefar reaching conclusions. He then goes on to state : —
..In my view it is within the discretion of the employer to' determine what work shall be done and the manner in' ‘which'it shall be done. It is not within the province of anemployee to dictate to the employer the manner in which heshall be‘permitted to perform the work. In this case theemployee expects the management to make decisions to suit.‘his conscience and principles.
These .observations may have relevance in another context butcan hardly contribute to the determination whether the petitionerhad "contravened Regulation 38 (1) of the Emergency Regulations.In fact at no place in the order has he ever set down what in
TiTTAWELLA, J.—Utmost her a t>. Commissioner oj Labour426
his opinion would be the elements that constitute a violationof the regulation in question.
The second respondent appears to have been greatly influencedby the state of feeling that existed between the petitioner andA. L. Perera. The order states : —
It should also be noted that prior to his writing the letteron 18.4.74 the applicant (i.e. the petitioner) had expressed hisresentment and bitterness towards A. L. Perera by addres-sing him in insulting language as clearly shown'in R15 byadjectives such as “ inept ” and “ bloomer In my view toaddress a superior in this fashion and apply to him theseadjectives without any necessity is undisputably subversiveof discipline. The use of such offensive words exhibit a lackof respect for the position of the person to whom it isaddressed.
However appropriate these generalisations of the second respon-dent may be they do not have any bearing on the qutestion he hadto determine, it is clear from the order that these matters havegreatly influenced the second respondent in reaching hisconclusions.
The following comments also appear in the order of the secondrespondent:—
I would say that an announcement^of a refusal to obey anorder or instruction already given to perform certainfunctions is not merely insubordination but a complete andfinal disobedience-
The crucial matter in the inquiry before the second respondentwas to find out whether there was any order given. The peti-tioner" had been at great pains to demonstrate that there was noorder and there was no refusal on his part. The order at anypoint does not indicate that the material led in evidence on be-half of the petitioner received any consideration or that it wassubject to any analysis before the conclusions of the secondrespondent were reached.
Finally the second respondent concludes his reasons in thefollowing manner : —;
It appears that the applicant’s (i.e. the petitioner’s)action failing to follow instructions was deliberate and letterR9 (letter dated 18.4.74) was written by the'applicant afterdue deliberation. He was guilty of insubordination and thecompany had the right to take disciplinary action againsthim. This the Company had done by invoking the provisionsof regulation 38 (1) of the Emergency Regulations.
Suffice it to state that this Emergency Regulation does not.deal with insubordination or with disciplinary action. It pertains
420
TITTAWELLA, .T.—Gunasekera v- Commissioner of Lohaur
to certain consequences that follow by persons in a specifiedcategory when they “ fail or refuse to perform such work as theymay be.directedThe second respondent has singularly failedto address his mind to this question by consideration and ananalysis of the facts and circumstances in the present case in thelight of the material, placed before him by the petitioner.
– Lack of jurisdiction may arise in different ways. While engagedon a proper inquiry the tribunal may depart from the rules ofnatural justice or it may ask itself the wrong questions or maytake into account matters which it was not directed to take intoaccount. Thereby-it would step outside its jurisdiction. A tribunalwhich has made'findings of fact wholly unsupported by evidenceor which it has drawn inferences wholly unsupported by any ofthe facts found by it will be held to have erred in point of law.The concept of error of law includes the giving of reasons thatare bad in law or inconsistent, unintelligible or it would seemsubstantially inadequate. It includes also the application of awrong legal test to the facts found taking irrelevant considerationsinto account and arriving at a conclusion without any supportingevidence. If reasons are given and these disclose that an erroneouslegal approach has been followed the superior Court can set thedecision aside by certiorari for error of law on the face of therecord. If the grounds or reasons stated disclose a clearlyerroneous legal approach the decision will be quashed. An errorof law may also be held to be apparent on the face of the recordif the inferences and decisions reached by the tribunal in anygiven case, are such as no reasonable body of persons properlyinstructed in the law applicable to the case could have made. Theabove is a summary of some of the grounds for awarding certio-rari as set down, in S. M. de Smith’s work—Judicial Review ofAdministrative Action (Third Edition)..;
: On an application of these principles to the present case itseems to me that this is an instance where this Court is entitledto interfere by way of certiorari. I am also satisfied that it wouldbe right and just to do so. Accordingly a mandate in the natureof a Writ of Certiorari is issued quashing the proceedings heldby the .second respondent. The: order made by the-Commissionerof Labour dated the 21st June, 1976, m,arked “ H ” in theseproceedings is also quashed.-> :
-;The'petitioner’s application 's allowed with costs payable bythe third respondent.
Udalagama, J.—I agree.
Ismail, J.—I agree.
_Application allowed.