Sri Lanka Law Reports
11982J 1 S.L.R
COURT OF APPEALChandradasaV.
WyeratneCertiorari C. A. Application No. 19/80
Writ of Certiorari – Business Undertakings (Acquisition) Act – Dismissal ofworkman in exercise of private contractual right – No Writ of Certiorariavailable.
Petitioner joined Ceylon Oxygen Ltd. on 5.4.1957 and was a ForemanGrade 11 at the time of his dismissal.
By an Order published in the Gazette under Section 2 of BusinessUndertakings (Acquisition) Act No. 35 of 1971. the business undertakingof Ceylon Oxygen Ltd. vested in the Government on 5.11.76. Respondentis the Competent Authority appointed in terms of Section 3 of the above Act.
Cliandrndasa r. Wijcralnc (Tambiah. J.)
On 22.6.79 the Petitioner was served with a Show Cause Notice inrespect of certain incidents alleged to have taken place on 15.6.79. On6.7.79 an Inquiry was held into the alleged incidents at which evidencewas led and the Petitioner himself gave evidence. On 29.9.79 the Respondenton the basis of the Report of the Inquiry Officer informed the Petitionerthat he was dismissed from service.
The Petitioner seeks now to quash the order by Writ of Certiorari onthe grounds of mala fines and bias ar.d also on the ground of not beinggiven a fair opportunity of being heard and total lack of evidence .tosupport the charges brought against him.
Counsel for Respondent objected on the grounds that the impugnedorder of dismissal was made in pursuance of purely contractual rights andnot in pursuance of a statutory duty.
Held that the employees of Ccvlon Oxygen I.td. continued in employmentunder ordinary contracts of service and the order of dismissal wasin the exercise of a private contractual right and hence no writ would lie.
Application for writ of certiorari: preliminary objection.
Argued on:Decided on:
Tambiah. J. & L. H. tie Alwis J.
A. A. de Silva for the Petitioner
S. Ratnapala. State Counsel, for the Respondent
The petitioner joined the Ceylon Oxygen Limited on 5.4.1957 asa Plant Attendant (skilled worker grade) and was promoted asAssistant Shift Foreman on 1.12.1967 and later as Shift Foreman(Foreman Grade III) on 1.10.1969.
By Order made in terms of s. 2 of the Business Undertakings(Acquisition) Act, No.35 of 1971.and published inGazeue ExtraordinaryNo. 237/8 of 5.11.76, the business undertaking of Ceylon OxygenLimited was * vested in the Government. The respondent is theCompetent Authority appointed to manage and administer the affairs
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of the business undertaking of Ceylon Oxygen Limited, in terms ofs. 3 of the Act. The petitioner continued in employment, in thevested undertaking.
On 20.6.79, the petitioner was suspended from duty in connectionwith some incidents alleged to have taken place at the work placeon 15.6.79. On 22.6.79 he was served with charges and was askedto show cause why he should not be dismissed. The charges allegedthat on 15.6.79, in the night, the petitioner with 2 other employees,while on duty, had consumed liquor inside the work place and hadbeen drunk while on duty; that the petitioner had permitted anemployee to bring liquor into the premises and allowed him toconsume the same and remain on duty, knowing that he was drunk,and had failed to bring this fact to the notice of the Administrator,and thereby brought disrepute to the Institution and betrayed theconfidence placed on the petitioner by the Administrator. The petitionerdenied the charges by his letter of 27.6.79.
An inquiry was held on 6.7.79 by an Inquiry Officer and thepetitioner was represented. Evidence was led and the petitioner himselfgave evidence. The Inquiry Officer submitted his report in which hefound the petitioner guilty of the charges, and the respondent byhis letter of 29.9.79 informed the petitioner that he had been found'guilty of the charges and dismissed him from service.
The petitioner now seeks to quash on certiorari the order ofdismissal. He alleges that the order of dismissal was made mala Tide,in that, the respondent was pre-determined to get rid of him at anycost; that the Inquiry Officer was biased and that he had no fairopportunity of preparing his defence as the inquiry was conductedwith undue haste. He also states that there is a total lack of evidenceto support the charges brought against him. The respondent, however,has denied these allegations.
At the hearing, learned State Counsel raised an objection in limine.He submitted that the impugned order of dismissal was not madein the exercise of any statutory power byt was one made in pursuanceof purely contractual rights. Hence no certiorari will lie.
S. 4 (1) of Act No 35 of 1971 enacts that “where
any business undertaking is acquired by or vested in the Government.
Chandradasa v Wijeratne (Tambiah, J.)
all the rights and liabilities under any contract or agreement whichrelates to the purposes of that undertaking and which subsists onthe date of transfer or on the primary vesting date of that undertakingshall vest in the Government.” In terms of this section all employmentcontracts and all rights and liabilities under them which were subsistingon the date of the vesting order, became vested in the Government.
In R. v. Electricity Commissioners (, K.B. 171 at 204) thewrit of certiorari was declared to be available against “any body ofpersons having legal authority to determine questions affecting therights of subjects, and having the duty to act judicially.” In otherwords, certiorari lies only against persons or tribunals, the source ofwhose authority to make decisions or orders affecting the rights ofsubjects, is legal. De Smith (Judicial Review of Administrative Action,4th Edn. p.385) commenting oh the phrase “legal authority” says -“Legal authority generally means statutory authority”. Lord Goddard,C.J. said (R. v. National Joint Council for Dental Technicians, ex.p. Neate [1953,] 1 Q.B. 704 at 707 – “But the’bodies to which inmodern times the remedies of these prerogative Writs' have beenapplied have all been statutory bodies on whom Parliament hasconferred statutory powers and duties which, when exercised, maylead to the detriment of subjects who may have to submit to theirjurisdiction.”
No doubt the competent authority was established by Statute andis a statutory body. But the question is, when the respondent ascompetent authority dismissed the petitioner, did he do so in theexercise of any statutory power?
As stated earlier, io terms of s.4 of the Act, when the businessundertaking of Ceylon Oxygen Limited became vested in theGovernment, the employment contracts and the rights and liabilitiesunder them which were subsisting on the date of vesting, also becamevested in the Government. The relationship between the competentauthority and the employees remained contractual; the employeescontinued in employment under ordinary contracts of service. Asobserved by Lord Norris of Borth-Y-Guest in University Council ofVidyodaya University v. Linus Silva (66 NLR 505 at p.518) the merefact that the University is established by Statute does not necessarilymake its powers statutory; it may engage its employees under ordinarycontracts of service.
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The Act does not deal with the question of dismissal of employeesat all. It does not specify when and how an employee can be dismissedfrom service – the grounds of dismissal or the procedure for dismissal.So that, when the respondent made his order of dismissal, he didso in the exercise of his contractual power of dismissal and not byvirtue of any statutory power. “Certiorari is not available to reviewa disciplinary decision taken by a public authority against an employeewith whom it has only a contractual relationship.” (Smith, 4th Edn.at p.365). If the,,petitioner's dismissal was in breach of the terms ofthe employment-contract, the proper remedy is an action for declarationor damage^..;The Court will not quash the decision on the groundthat natural justice has not been observed.
Learned Counsel for the petitioner based an argument on Regulation3 of the Regulations made by the Minister of Finance under s. 12of the Act. The regulations were published on 5.11.76, the samedate as the vesting order. It reads – “The competent authority mayrefuse to employ, or to continue in employment, in the vestedundertaking any person who, in the opinion of the competent authority,is unsuitable for employment. He therefore argued that the powerof dismissal was exerciscable only if the petitioner was found unsuitablefor employment. A decision that a person is unsuitable for employmentmust be a judicial decision; such a decision can only be reached byobserving the principles of natural justice, he submitted.
The said regulation has no application to the present., case. Itrelates to the stage of vesting in the Government of the businessundertaking, and gives a discretion to the competent authority notto continue in employment an employee, in the vested undertaking,jf found unsuitable for employment. The regulation has no applicationwhere the services of an employee had been retained by the competentauthority, and he is subsequently dismissed from service.
I uphold the preliminary objection of learned State Counsel. Theapplication is refused but there will be no order for costs.
L.H. DE ALWIS. J. — 1 agree.
Preliminary objection upheld.
Chandradasa V. Wijeratne