DAHANAYAKE AND OTHERS vs. SRI LANKA INSURANCE CORPORATION LTD.,AND OTHERS

009-SLLR-SLLR-2005-V-1-DAHANAYAKE-AND-OTHERS-vs.-SRI-LANKA-INSURANCE-CORPORATION-LTD.AND-OTHERS.pdf


DAHANAYAKE ANDOTHERSvs
SRI LANKA INSURANCE CORPORATION LTD.ANDOTHERS
COURT OF APPEAL,
SALEEM MARSOOF, P. C., J. (P/CA) AND SRIKANDARAJAH, J.
C. A. NO. 419/2003JUNE 28, 2004
Writ of mandamus/certiorari – Claim of arrears of cost of living allowance -Laches – Uberrima tides – Earlier arbitral award • Suppression-Misrepresentation of material facts – Exercise of discretion of Court – Nam legesvigilantibus, non dormientibus, subveniunt
The petitioners – all former employees of the 1st respondent-sought a writ ofmandamus to compel the 1 st respondent to pay to the petitoners arrears of thevariable cost of living allowance paid to the employees of the 1st respondent in
qASivapalanathan-67
l/s Raj Gopal (Wimalachandra, J.)
OSSri Lanka Law Reports(2005) 1 Sri L. R.
November, 1994. The petitioners contended that, the 1st respondent paidarrears for the period January, 1988 • November 1994, to all employees inservice in November 1994, but such arrears were not paid to the petitionerswho had by that time ceased to be employed by the 1st respondent.
The 1 st respondent contended that there is delay/laches and that the petitionershave suppressed/misrepresented material facts.
Held:
The grievance of the petitioners arose in November 1994, when thearrears of the enhanced cost of living allowance was paid to theemployees in service at that time. The petitioners should have soughta writ of mandaums in 1994 and not in 2003. It is settled law thatinordinate delay in invoking the jurisdiction of the Court does not entitlethe petitioners to any relief under writ jurisdiction.
The petitioners have not produced a copy of the arbitral award whichwas made in respect of the identical claim as that which is presentlybefore court, more so, as that 2nd respondent Commissioner Generalof Labour has cited and relied upon the said award in his order. It isestablished that the petitoners have previously unsuccessfullycanvassed the identical issue arising in this case in another forum.
. (iii) If there is no full and truthful disclosure of all material facts, the Courtwould not go into the merits of the application but will dismiss it withoutfurther examination.
APPLICATION for writs in the nature of certiorari and mandamusCases referred to :
President, Malagoda Co-operative Society vs. Arbitrator of Co-operativeSociety – 51 LR 167.
Biso Menika vs Cyril de Alwis – 1982 1 Sri LR 368
Shums vs Peoples Bank (1985) 1 Sri LR 197
Hulangamuwa vs Siriwardena, Principal, Visaka Vidyalaya and others- (1986) 1 Sri LR 275
CA Dahanayake and Others V. Sri Lanka Insurance Corporation and Others gy
(Marsoof J.)
Issadeen vs Commissioner of National Housing and others (2003) – 2Sri LR 10
Seneviratne vs Tissa Dias Bandararanayake and another (1992) – 2 SriLR 341 at 351
W. S. Alphonso Appuhamy vs L Hettiarachchi- 77 NLR 131 at 135-136
K vs The General Commissioner for the purpose of Income Tax Acts forthe District of Kensington • Ex parte Princess Edmorbd de Poignal -(1917) KG Div. 486
Blanca Diamonds (Pvt) Ltd., vs Wilfred Van Else and others (1997) 1Sri LR 360 at 362
Quare:
Whether a converted company which is not subject to government control isamenable to the writ jurisdiction which was amenable to the writ prior to itsconversion
Chandra Gamage with F. Ekanayake for petitionersManori Jinadasha with L. P Ariyaratne for 1st respondentM. N. Idroos State Counsel, for 2nd respondent
Cur. adv. vult.
November 24, 2'004SALEEM MARSOOF, J,/P/CA
This applicatoin has been filed by 40 former employees (or spouses ofdeceased employees) of the 1st Respondent Si;i Lanka Insurance.Corporation Ltd, which was a public corporatoin prior to its conversion asa public limited liability company under the provisons of the Conversion ofPublic Corporations or Government owned Business undertaking into PublicCompanies Act, No. 23 of 1987. Upon the conversion which took effect onor about 3rd February 2003, all shares in the company were held by theSecretary to the Treasury, However, it appears that on or about 11th April,2003, approximately 75% of the shares were transfered to Milford Holdings(Pvt) Ltd, and nearly 15% of the shares were transferred to GreenfieldPacific EM Holdings Ltd as part of the privatisation program of thegovernment, and only about 10% of the shares now remain in the hands ofthe Secretary to the Treasury.
70'Sri Lanka Law Reports(2005) 1 Sri L. R.
In this case the Petitioners seek a writ of mandamus to compel the 1 stRespondent to pay to the Petitoners certain arrears of the variable cost ofliving allowance paid to the employees of the 1 st Respondent in November1994. According to the Petitioners, the 1st Respondent had paid itsemployees Rs. 600 per month as cost of living allowance from January,
1988, which was increased to Rs. 1,818 per month in 1994 with retrospectiveeffect. The Petitioners claim that the 1 st Respondent paid arrears of theenhanced allowance for the period January, 1998 to November 1994 to allemployees in service in the 1 st Respondent Corporation in November 1994,but such arrears were not paid to the Petitioners (or their deceased spouses)who had by that time ceased to be employed by the 1 st Respondent. ThePetitioner’s position is that they are also entitled to payment of arrears astheir contracts of employment subsisted during the period for which thearrears were paid. The Petitioners therefore seek by prayer (C) to thepetition, an order in the nature of mandamus on the 1st Respondent tomake payment of arrears of cost of living allowance with interest to thePetitioners as set out in P1. This is the one and only relief sought by thePetitioners against the 1 st Respondent, The relief prayed for against the2nd Respondent Commissioner of Labour in this case is for a writ ofcertiorari quashing his decision contained in his letter dated 20th January,2003 (P11) that the petitioners are not entitled to the said arrears of thecost of living allowance.
The application of the Petitioners is resisted by the 1st Respondentinter alia on the ground that arrears of the enhanced cost of living allowanceswas paid by the 1 st Respondent in November 1994 to the employees whowere in service at that time in contravention of the decision of the Cabinetof Ministers dated 3rd August, 1994 (R4) which only authorised the paymentof the increased rate with effect from 1st July, 1994 on the basis that noarrears will be paid. The 1st Respondent also claims that arrears werepaid to employees then in service computed on the higher rate from January1988 in violation of specific instructions issued by the Secretary to theTreasury to the 1st Respondent in the letters dated 31st October 1994(R8) and 27th December 1994 (R9)
This case gives rise to the question whether a prerogative remedy suchas mandamus is available against a converted public company which wasamenable to the writ prior to its conversion and indeed all its shares wereheld by the Secretary to the Treasury at the time the application was filed,if in the meantime the majority shares have changed hands to make it a
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predominantly privately owned company not falling within the control ofthe government. At the hearing of this application the learned Counsel for1 st Respondent also took up several preliminary objections, namely-
that the petition filed by the Petitioners is not in conformity with themandatory provisions of Rule 3 (1) of the Court of Appeal (AppellateProcedure) Rules of 1990 and should be dismissed forthwith ;
that there is delay and/or laches on the part gf the Petitioners ininvoking the jurisdiction of this Court and that the Petitioners arenot therefore entitled to any relief;
that the Petitioners are not entitled to seek a writ of mandamus, inthis case, against the 1 st Respondent, especially as the paymentof arrears of the Variable Cost of Living Allowance to the Petitionersis neither a statutory nor a non-statutory duty of the 1 st Respondent;
that the principles of estoppel and/or waiver and / or acquiescenceand / or res judicata will operate against the application of thePetitioners';
that the Petitioners have suppressed and / or misrepresentedmaterial facts and / or misled Court which disentitles the Petitionersto any relief, in that-
The Petitioners have failed and / or neglected to annex tothe petition, the award of the learned Arbitrator in CaseNo. A/2587 dated 28.01.1998 against the 1 st, 2nd, 3rd,8th, 11 th and 35th Petitioners wherein, the issue of whetheror not the said Petitioners were entitled to arrears of theCost of Living Allowances was meticulously consideredand determined;
The Petitioners have misrepresented to Court that the 1 stRespondent followed the practice of paying a cost of livingallowance of Rs. 600 as a monthly allowance to theemployees of the State Sector, with effect from 1 st June1993;and
The Petitioners have misrepresented to Court that the 1 stRespondent increased the cost of living allowance to
72Sri Lanka Law Reports(2005) ! Sri L. R.
Rs. 1,818 with retrospective effect, whereas the paymentof cost of living allowance was made with effect from 1stJuly 1994 and the said payment was not to be effectedretrospectively as specifically stated in the decision of theCabinet of Ministers dated 2nd August 1994 marked asR5 and reflected in the Board paper No. 108/94 of the 1 stRespondent company marked as R5 (a)
It is necessary to observe at the outset that the arrears of the enhancedpost of living allowance claimed by the Petitioners relate to the periodJanuary, 1988 to November 1994, and the alleged grievance of thePetitioners arose in November 1994, when the then employees of the 1 stRespondent were paid arrears of the allowance at the higher rate for thatperiod. However, none of the Petitioners invoked the jurisdiction of thisCourt until this application was filed in February, 2003, nine years after thearrears were paid to the then employees of the 1 st Respondent, It is alsonoteworthy that in or about 1995 pursuant to a complaint made by the 1 st,2nd, 3rd, 8th, 11th and 35th Petitioners to the 2nd RespondentCommissioner of Labour with a view of recovering the arrears of theenhanced cost of living allowance for the period January, 1988 to November1994, the matter was referred for arbitration by the Minister of Labour andVocational Training under Section 4 (1) of the Industrial Disputes Act, No.43 of 1950, as subsequently amended. By the award dated 28th January,1998 (R10) the learned Arbitrator held that the Petitioners are not entitledto this enhaned payment as it had been made unlawfully in contraventionof a Cabinet Decision and specific directions issued by the Secretary tothe Treasury. The 1st, 2nd, 3rd, 8th, 11th and 35th Petitioners have notsought to challenge the said award of the Arbitrator marked as R10, whichis still valid and in force.
It has been submittted by the Counsel for the 1 st Respondent that thePetitioners could have invoked the jurisdiction of this Court to redress theirgrievance in 1994 by way of an application for a writ of mandamus, or in1998 by way of an application for a writ of certiorari to quash the saidarbitral award marked R10. He submits that the Petitioners have sleptover their rights and are before this Court nine years later seeking a paymentthat was made to employees of the 1 st Respondent in November, 1994,He states that the Petitioners are guilty of laches or delay in seeking awrit of mandamus and a writ of certiorari from this Court at this stage. Thelearned Counsel for the 1 st Respondent has further submitted that as the
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Sri Lanka Insuarance Corporation Ltd and others (Marsoof J.)
Petitioners were well aware that they have slept over their rights, theyonce again made a complaint to the 2nd Respondent Commissioner ofLabour on 26th January, 2002 on the identical issues, which complaintwas quite correctly dismissed by the Commissioner who considered interalia that there was an arbitration award already made on 28th January,1998 in respect of the same issues. Having thus re-agitated theirunsuccessful claim, the Petitoners are now before Court claiming thatthey have not delayed in coming to Court, by citing the decision of the 2ndRespondent made on 20th January 2003 (P11), in which he has dismissedthe complaint mainly on the ground that an award dated 28th January1998 (R10) already exists, in respect of the same matter. The learnedCounsel for the 1 st Respondent has contended that the complaint to theLabour Department in 2001 and the present application made to this Court,are both belated applications made well over several years after thisenhanced payment was made to the employees in service in November1994. He has stressed that the attempt to resurrect the claim by againcomplaining to the 2nd Respondent is indeed unbecoming conduct on thepart of the Petitioners, and further contends that the Petitioners by thisexercise have attempted to deceive and/or mislead Court, which conductshould no be tolerated or condoned. It is clear that after having slept overtheir rights for over nine years, the Petitioners re-agitated a stale claimbefore the Labour Department in order to find a gateway to the writjurisdiction of this Court,
It is also to be noted that no plausible explanation has been given bythe Petitioners for their delay in invoking the jurisdiction of this Court. Infact, the Petitioners did not give any direct explanation for their delay and/ or admit the fact that there was delay. However, without categoricallyadmitting the delay, they attempted to mitigate their delay by stating thatthey made a complaint to the 2nd Respondent Commissioner of Labourupon becoming aware that the former Chairman of the 1 st Respondent. S.G. Udalamatte had secured payment of arrears on the higher rate throughthe intervention of Court. Reference was made to the decision of this Courtin CA Application No. 318/99 (P5) filed by the said Udalamatte in 1999against inter alia the 1st and 2nd Respondents to recover a sum ofRs. 92,252.20 awarded in terms of a determination made on 26th April1995 and by the 2nd Respondent Commissioner of Labour under the Shopand Office Employees Act; No. 19 of 1954. The main objection taken bythe 1st Respondent was that the application was time barred in terms ofSection 50B(c) of the said Act as more than four years had elapsed after
74Sri Lanka Law Repons(2005) 1 Sri L. R.
the sum had become due. U. de Z. Gunawardana J, in a strongly worded• judgment faulted the 2nd Respondent Commissioner of Labour for neglectinghis duties ordained by law, and went on to overrule the objection taken bythe 1st Respondent and granted relief to the Petitioner Udalamatte. TheSupreme Court in SC Spl L. A. No. 125/2001 (P6) refused special leave toappeal against the judgement of this Court. As Udalamatte was armedwith an order made by 2nd Respondent in his favour, the only issue in thiscase was whether the enforcement of the said order was time barred.Neither this Court nor the Supreme Court were called upon to consider themerits of the claim made by Udalamatte for the payment of the arrears ofthe enhanced variable cost of living allowance from 1988. The position ofthe Petitioners in the instant case is significantly different from that ofUdalamatte as they are not armed with any determination in their favourmade by 2nd Respondent Commissioner of Labour under the Shop andOffice Employees Act.
The learned Counsel for the 1 st Respondent submits that the Petitionerswho had slept over their rights for nearly nine years, cannot be permittedto seek a writ to compel the performance of a purported statutory duty byciting a case filed by another party in which that party had secured reliefwhich is personal to that party. He states that the right the Petitionersseek to enforce must be statute based and not based on the case ofanother individual, who has secured relief on grounds personal to him.This is not an application for fundamental rights, where principles of equalitycome into play and a party can claim that tfney are also entitled to aparticular relief as it was granted to another person who is similarly placed.This application has been filed with a view of invoking the writ jurisdictionof this Court to compel the performance of a purported public duty, basedon a statute. In such as case, the Petitioners cannot be allowed to cometo Court after a nine year long slumber on the strength of the decisionmade by Court at the instance of another individual who had not slept overhis rights and had successfully prosecuted his claim. The grievance of thePetitioners arose in November 1994, when the arrears of the enhancedcost of living allowance was paid by the 1 st Respondent to the employeesin service at that time. Therefore, the petitioners should have sought a writof mandamus in 1994 not in 2003. It is a well recognized principle of lawthat a party must come to Court within a reasonable time.
In my view, Udalamatte’s case cannot be compared to the case of thePetitioners, as the basis on which Udalamatte has sought relief is distinctly
CA Dahanayake and Others V. Sri Lanka Insurance Corporation Ltd. and Others 75
(Marsoof J.)
different from the case of the Petitioners. As such, the Petitioners cannotrely on Udalamatte's case to secure relief for themselves. Furthermore,the fact that Udalamatte was granted this payment through the interventionof Court, was a fact within the knowledge of the Petitioners even as farback as 1998, as evident by a perusal of the Arbitral Award marked as R10. Udalamatte’s case was considered in the said Arbitral Award made inrespect of the identical claim as that which is presently before this Court.In the arbitration award, the learned Arbitrator clearly distinguished thecase of Udalamatte .from that of the 1st, 2nd, 3rd, 8th, 11th and 35thPetitioners, who were the parties to the Arbitration and dismissed thecomplaint of the said Petitioners. Therefore, the Petitioners (some of whomwere parties to this arbitration award) cannot be heard to state that theyawaited the decision in Udalamatte’s case, as an excuse for the inordinatedelay in seeking legal relief.
It is well settled law that inordinate delay in invoking the jurisdiction ofthe Court does not entitle the Petitioners to any relief under writ jurisdiction,Learned Counsel for the 1 st Respondent has referred to the decisions ofour courts in President – Malagoda Co-operative Society v. Arbitrator ofCo-operative Society, Biso Menika v. CyrilDe AiwisP Shums v. People’sBanket, Hulangamuwa v. Siriwardena, Principal Visaka Vidyalaya andothers(4> and Issadeen v The Commissioner of National Housing andOthers® for the proposition that unexplained delay in making an applicationfor a prerogative remedy disentitles a Petitioner to relief.
In Biso Menika v. C. R. de Alwis, (Supra) Sharvananda, J (as he thenwas) observed that-
“A Writ of Certiorari is issued at the discretion of the Court. It cannotbe held to be a writ of right or one issued as a matter of course. Butexercise of this discretion by Court is governed by certain wellaccepted principles, The Court is bound to issue a writ at the instanceof a party aggrieved by the order of an inferior tribunal except incases where he has disentitled himself to the discretionary relief byreason of his own conduct, like submitting to jurisdiction, laches,
undue delay or waiverThe proposition that the application for
Writ must be sought as soon as injury is caused is merely anapplication of the equitable doctrine that delay defeats equity andthe longer the injurred person sleeps over his rights without anyreasonable excuse the chances of his success in a Writ application
6-CM 5256
76Sri Lanka Law Reports(2005) J Sri L. R.
dwindle and the Court may reject a Writ application on the ground of
unexplained delayAn application for a Writ of Certiorari should
be filed within a reasonable time from the date of the order; whichthe applicant seeks to have quashed (pages 377 to 379 of thejudgement)
It is noteworthy that in Senerviratne v. Tissa Dias Bandaranayake andanother(6) Amerasinghe, J adverting to the question of long delay,commented that-
“If a person were negligent for a long and unreasonable time, the lawrefused afterwards to lend him any assistance to enforce his rights ;the law both to punish his neglect, nam leges vigilantibus, nondormientibus, subveniunt, and for other reasons refuses to assist thosewho sleep over their rights and are not vigilant”
Having said that, his Lordship went on to quote from the Dhammapada,Appamada Vagga, 26, the following passages:
“Pamadamanuyunjantibala dummedhinho janaAppamadam ca medhaviidhananam settham’va rakkati”
(Fools, men of little intelligence give themselves over to negligence butthe wise man protects his diligence as a supreme treasure)
"Appamatto pamattesusuttesu bahujagaroAbalassm'va sighassohitro yati sumedhaso"
(Heedful among the heedless, watchful among the sleeping, the wiseman outstrips the foolish man as a racehorse outstrips an old horse)
In Issadeen v. The Commissioner of National Housing (Supra)Bandaranayake J. dealing with a belated application for a writ of certiorariobserved-
CA Dahanayake and Others V. Sri Lanka Insurance Corporation Ltd. and Others 77
(Marsoof J.)
“It is however to be noted that delay could defeat equity. Although thereis no statutory provision in this country restricting the time limits infiling an application for judicial review and the case law of this countryis indicative of the inclination of the Court to be generous in finding agood and valid reason for allowing late applicaitons, I am of the viewthere should be proper justification given in explaining the delay infiling such belated applications. In fact, regarding the writ of certiorari,a basic characteristic of the writ is that there should not be anunjustifiable delay in applying for the remedy” (page 15 of the"judgement)
These observations are very pertinent in the context of the presentcase in which the Petitioners have not only failed to invoke.the jurisdictionof this Court within a reasonable time, but have also failed to explain theirdelay in a resaonable way. In all of the circumstances of this case, I holdthat thePetitioners are guilty of laches and not entitled to the relief prayedfor by them.
The 1 st Respondent has also taken up a preliminary objection on thebasis that the Petitioners have suppressed or misrepresented materialfacts. This by itself is a serious obstacle for the maintenance of thePetitioners’ case. Our Courts have time and again emphasised'theimportance of full disclosure of all material facts at the time a Petitionerseeks to invoke the jurisdiction of this court, by way of writ of certiorari,mandamus or any of the other remedies referred to in Article 140 of theConstitution. In this context, the failure of the Petitioners to tender withthe petition and joint affidavit filed by them a copy of the Arbitral Awarddated 28th January 1998 (R10) to which the 1st, 2nd, 3rd, 8th, 11th and35th Petitioners were parties is extremely significant. It is important tonote that the impugned order of the 2nd respondent marked P11, whichthe Petitioners seek to have quashed by way of a writ of certiorari, specificallyrefers to the said Arbitral Award marked R10. In fact one of the primaryconsiderations in the order sought to be quashed (P11 )’is the fact that thecomplaint of the Petitioners in regard to their claim for arrears at theenhanced rate, had already been considered and determined in the saidaward marked as R10 made in 1998. I am therefore of the view that thePetitioners were bound to produce with their application a copy of thisArbitral Award, more so as the 2nd Respondent has cited and relied uponthe said Award in his order marked P11. The Petitioners have omittedannex to their petition and affidavit copy of this Award which has
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comprehensively analysed the claim of -the Petitioners and proceeded torejecrthe same.
While establishing that the 1 st, 2nd, 3rd, 8th, 11 th and 35th Petitionershave previously unsuccessully canvassed the identical issue presentlyarising in this case in another forum provided by law, the Arbitral Awardmarked R10 also precludes the said Petitioners from once again canvassingthe same relief before the Labour Department and subsequently beforethis Court. Be that as it may, the said Award also reveals that Udalamatte’scase has been considered and distinguished by the Arbitrator appointedunder the Industrial Disputes Act. More importantly the said Award alsodemonstrates that Udalamatte’s case was a fact within the knowledge ofthe Petitioners as far back as 1998. Therefore the Petitioners (some ofwhom were parties to the said arbitration) cannot be heard to state thatthey became aware of Udalamatte’s case only in 2001 through thenewspapers as claimed by them in the petition. The award therefore,comprehensively proves false the excuses offered by the Petitioners tojustify their delay in seeking relief.
It is necessary in this context to refer to the following passage from thejudegment of Pathirana J in W. S. Alphonso Appuhamy v L. Hettiarachchim
“The necessity of a full and fair disclosure of all the material facts to beplaced before the Court when, an application for a writ or injunction, ismade and the process of the Court is invoked is laid down in the caseof the King v. The General Commissioner for the Purpose of the IncomeTax Acts for the District of Kensington-Ex-parte Princess Edmorbd dePoignaPK Although this case deals with a writ of prohibition the jorinciplesenunciated are applicable to all cases of writs or injunctions. In thiscase a Divisional Court without dealing with the merits of the casedischarged the rule on the ground that the applicant had suppressed ormisrepresented the facts material to her application. The Court of Appealaffirmed the decision of the Divisional Court that there had been asuppression of material facts by the applicant in her affidavit and thereforeit was justified in refusing a writ of prohibition without going into themerits of the case. In other words so rigorous is the necessity for a fulland truthful disclosure of all material facts that the Court would not go
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into the merits of the application, but will dismiss it without further
examination”.
Similary, in Blanca Diamonds (Pvt) Ltd v Wilfred Van Else & Others<9),Jayasuriya; J. emphasized the duty a party owes to Court for a full andvfrank disclosure when initiating writ proceedings in the following rrianner-
"ln filing the present application for discretionary relief in the Court ofAppeal Registry, the petitioner company was under a duty to discloseuberrima tides and disclose all material facts to this Court for thepurpose of this Court arriving at a correct adjudication of the issuesarising upon this application. In the decision in Alponso Appuhamyv. HettiarachchP> Justice Pathirana, in an erudite judgment,considered the landmark decisions on this province in English Law,and cited the decisions which laid down the principle that when aparty is seeking discretionary relief from the Court upon an applicationfora writ of certiorari, he enters into a contractual obligation with theCourt when he files an application in the Registry and interims ofthat contractual obligation he is required to discolse uberrima tidesand disclose all material facts fully and frankly to this Court….”.
I hold that the Petitioners are in breach of this solemn covenant and are
therefore not entitled to any relief.
In view of the finding of this Court the Petitioners are guilty of undue andunexplained delay in invoking the jurisdiction of this Court and areadditionally guilty of violating their duty of uberrimae tides. It is notnecessary for this Court to deal with the questioin whether a convertedcompany which is not subject to government control is amenable to thewrit jurisdiction of this Court or to rule on the other preliminary objectionstaken up by learned Counsel for the 1 st Respondent. The application filedby the Petitioners is dismissed but without costs in all the circumstancesof this case
SRISKANDARAJAH, J.—I agreeApplication dismissed.