FERNANDO AND OTHERS ASSSOCIATED NEWSPAPERS OF CEYLON LTD . AND OTHERS

019-SLLR-SLLR-2006-V-3-FERNANDO-AND-OTHERS-ASSSOCIATED-NEWSPAPERS-OF-CEYLON-LTD-.-AND-OTHERS.pdf


CA
Fernando and Others vs.
Associated Newspapers of Ceylon Ltd. and Others
141
FERNANDO AND OTHERSvs.ASSOCIATED NEWSPAPERS OF CEYLON LTD., AND OTHERSSUPREME COURTWEERASURIYA, J.
TILAKAWARDANE, J.
AMARATUNGA, J.
SC 274/2004.
FEBRUARY 24, 2005.
Fundamental rights-Constitution Articles 12(1). 12(2), 14(1)2, 126, 126(4)-Employed on contract – Absorption into permanent cadre assured?-Legallyenforceable right as opproved to Legitimate expectation – Is thatexpectation sufficient for constitutional relief? Relationship contractual ?differently treated – equal protection denied.
The Petitioners were employed on contract basis in the RespondentCompany – for a specific period of 6 months. Their services were dulyterminated at the end of the 6 month period. The petitioners' complainthat, the termination is in violation of their fundamental right to equalprotection of the law, as (1) the practice of the Respondent Company is toabsorb into the permanent Cadre and confirm in service all personsrecruited on temporary basis and (2) that the Chairman of the RespondentCompany had in writing assured them that they would be so absorbed-legitimate expectation.
HELD:
The Board decisions demonstrate that there was no practice toabsorb those in temporary/casual service into the pemanentCadre.
The petitioners have not shown any instance where permanentstatus has been granted to any employee in accordance with apast practice alleged by them.
The existence of a legitimate expectation as opposed to a legallyenforeable right is a relevant factor in considering the just andequitable relief that could be granted under Article 126(4) when itis shown that the action of the executive which frustrates thelegitimate expectation amounts to a denial of the right to equalprotection of the law guaranteed by the Constitution.
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Legitimate expectation could arise either from an express promisegiven on behalf of a public authority or from the existence of aregular practice which the claimant can reasonably expect tocontinue.
The contents of the letters sent by the Chairman to the petitionerscan give the reasonable expectation to his recipient that he wouldbe made permanent upon completing six months service.
Per Gamini Amaratunga. J.
“ That expectation also is not sufficient to make the petitioners entitledto the consititutional relief for the infringement of the fundamental rightsguaranteed by Article 12(1)”.
The disappointment of the petitioners expectation governed by thesaid letters cannot by itself bring the petitioners' case within Article12(2) without proof of the additional element that in deciding toterminate their services the management has treated themdifferently from those who are similarly circumstanced or that theyhave been denied the equal protection of the law.
APPLICATION under Article 126 of the Constitution.
Case referred to:
Council of Central Service Union (CCSU) vs. Minister of CivilService, 1984 3 All ER 935 at 944
J. C. Weliamuna with Shantha Jayawardena for petitioners in SC 274/04,277/04, 369/04, 370/04 and 373/04
Manohara R. de Silva with Shantha Jayawardane for petitioners in SC275/04. 276/04
A. A. de Silva PC with Lasitha Jayawardane for 1-3 respondents
Cur. adv. vult.
SC Fernando and Others vs. Associated Newspapers of Ceylon Ltd. 143
and Others (Gamini Amaratunga, J)
February 24th, 2005.
GAMINI AMARATUNGA, J.
In this application eleven petitioners who are employed on contractbasis in the Transport Department of the Associated Newspapers ofCeylon Ltd. (ANCL) seek relief under Articles 17 and 126 of theConstitution against the decision of the management to terminate theirservices with effect from 30.06.2004. According to their letters ofappointment marked P3A to P3E and P3G to P3K, the 1 st to 5th andthe 7th to 11th petitioners have been appointed to various posts suchas driver, mechanic and mate in the Transport Department of the ANCLwith effect from various dates in August 2003 on contract basis for aperiod of six months. The 6th petitioner’s appointment as a driver is onthe same basis for one year with effect from 02.05.2003. (P3F)
All letters of appointment specify the date of commencement of thesix months (one year in the case of the 6th petitioner) contract periodand the date on which the contract ends. All letters contain a clausethat the contracts would automatically expire on the dates specifiedtherein and an extension of the contract period would be made only inwriting at the discretion of the management. However the petitionershave stated that they were verbally informed that they would be absorbedinto the permanent cadre in the due course. There is no specificreference to the person or the official who gave such an undertaking.By letters marked P4A to P4J, the petitioners’ initial six months periodof service was extended by further three months with effect from March,2004. (In the case of the 6th petitioner by six months).
According to Gazette Notification P1, the ANCL is an institutionwhich comes under the Ministry of Information and Media. At the timethe petitioners were recruited the said Ministry was known as theMinistry of Mass Communication and Mr. Imthiaz Bakeer Marker wasthe Minister of Mass Communication. The ANCL came under hisministry. The petitioners have been recruited during his tenure of office.On 04.11.2003 the Ministry of Mass Communication was taken overby H. E. the President, On 05.11.2003 a new Chairman of the Board ofDirectors was appointed and subsequently a new Board of Directorswas also appointed. On 02.04.2004 the Parliamentary General Electionwas held and the United Peoples Freedom Alliance was returned to
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power. On 23.04.2004 the 2nd respondent was made the Chairman ofthe ANCL. On 25.05.2004, the letters of termination of services wereissued to the petitioners.
The petitioners allege that the termination of their services is inviolation of their fundamental rights guaranteed under Articles 12(1),12(2) and 14(1)(3) of the Constitution. They seek a declaration thatthe letters of termination of services served on them are null and voidand a direction to the 1st to 3rd respondents to absorb them into thepermanent cadre and to confirm them in their posts.
After considering the petitioners’ application, this Court has grantedleave to proceed for the alleged infringement of Article 12(1) of theConstitution. By way of interim relief, this Court has issued an orderrestraining the 1 st to 3rd respondents from giving effect to the noticesof termination dated 25.05.2004 marked P10A to P10K. Subsequentlythe 1 st to 3rd respondents have given an undertaking not to discontinuethe services of the petitioners until this application is finally disposedof. There are six other applications filed against the same respondentsby persons who have received letters of termination of services similarto those served on the petitioners of this application. At the hearing, itwas agreed by the parties that the decision of the present applicationwould apply to those applications bearing SC Application Nos. 275/2004, 276/2004, 277/2004, 369/2004, 370/2004 and 373/2004.
The letters of appointment issued to the peitioners contain a clausepermitting either party to terminate the contract with one months noticeto the other party or upon the payment of one month’s salary in lieu ofnotice. It appears that the letters of termination have been issued onthe basis of this clause. Although the relationship between thepetitioner’s and the ANCL is contractual, the petitioners seek reliefunder Article 126 of the Constitution on the basis that the decision toterminate their services is in violation of their fundamental right to theequal protection of the law. Their position is that the practice of theANCL is to absorb into the permanent cadre and confirm in servicethose persons recruited on temporary or on contract or on casual basisor as trainees upon completion of six months service subject to aprobation period of six months. The petitioners have further allegedthat by letters marked P9A to P9K dated 22.03.2004, the then Chairmanof the ANCL assured to them that they would be absorbed into the
SC Fernando and Others vs. Associated Newspapers of Ceylon Ltd. 145
and Others (Gamini Amaratunga, J)
permanent cadre in due course and accordingly they entertained alegitimate expectation that they would be absorbed into the permanentcadre and confirmed in their posts.
The petitioners allege that the decision to terminate their servicesis contrary to the practice of the ANCL with regard to those employedon contract basis and is arbitrary and unreasonable. Although there isreference in prayer (b) to the petition to Article 12(2)of the Constitution,there is no specific allegation in the petition that the petitioners havebeen singled out for discriminatory treatment due to political reasons.Leave to proceed was granted only for the alleged violation of Article12(1) of the constitution.
Before examining the legal basis upon which the peitioners seekrelief, it is pertinent to examine the objections filed on behalf of the 1stto 3rd respondents and especially the position taken up by thoserespondents with regard to the manner in which the petitioners cameto be employed at the ANCL. The third respondent, who is the Head ofthe Personnel and Human Resources Development Division of the ANCL,has filed an affidavit on behalf of the 1 st to the 3rd respondents. It isthe 3rd respondent who has signed the letters of appointment issuedto the petitioners and the subsequent letters extending the petitioners’period of service and also the letters of termination.
The petitioners in their petition and the affidavit have stated thatthey made applications for suitable posts in the ANCL and werethereafter called for interviews and after ascertaining their qualificationsand experience they were appointed to various posts in the TransportDepartment of the ANCL. The 3rd respondent in her affidavit has deniedthe averment that the petitioners were called for interviews on theapplications made by them. Her position is that at the time thepetitioners were called for interviews, the ANCL was well staffed tocarry out its functions but the management had to call the petitionersfor interviews due to the pressure brought upon the management bythe then Minister of Mass Communication Mr. Imthiaz Bakeer Marker.(Hereinafter referred to as the Minister) In support of this position the3rd respondent has produced marked R1 and R2A to R2K letters/memos sent by the Minister or on his behalf to the Chairman and theWorking Director of the ANCL nominating persons for employment atthe ANCL.
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Document R1 is a letter dated 18.07.2003, sent to the Chairman ofthe ANCL by the Co-ordinating Secretary to the Minister seekingemployment opportunity for the 2nd petitioner Devapriya as a motormechanic-at the ANCL. Document R2A is a letter dated 04.07.2003sent by the Minister to Mr. Somasiri, Working Director, recommendingthe names of eleven persons for employment. The names of the 1stpetitioner B. V. N. Fernando, the 5th Petitioner Ratnasiri and the 10thpetitioner Niroshan are in this letter. Document R2C is a letter sent bythe Minister to Mr. Somasiri, recommending the 3rd petitioner W. B.
F. Fernando (described as “my youth organizer”) for employment.Document R4A by which the 3rd petitioner was called for an interview,specifically refers to the Minister’s letter. Document R2D dated
sent to Mr. Somasiri by the Public Relations' Officer of theMinister, recommended employment opportunity for the 4th petitionerde Saa. Document R2F dated 22.04.2003, sent by the Minister to theChairman, ANCL, refers to employment opportunity for the 6th petitionerRefthi as a driver in the ANCL. Document R2G dated 02.07.2003 sentby the Public Relations Officer to the Minister to Mr. Somasiri containsthree names recommended for employment. The 9th petitioner Cooray’sname is in this list. Document R2K dated 22.07.2003, sent by theMinister to the Chairman, ANCL, refers to the 11th petitionerLiyanaarachchi. Some of the documents referred to above (R2C, R2Dand R2K) contain references to telephone conversations the Ministeror his Public Relations Officer had with the Chairman or the WorkingDirector of the ANCL before sending those letters.
Some of those letters (R1, R2A. R2C, R2D, R2F, R2G, R2I and R2K)contain endorsements made by the working Director to interview thepersons named in those letters. Appointment letters of the petitionershave been issued subsequent to the letters of recommendations/nominations referred to above. The 3rd respondent has further pointedout that except the 2nd petitioner, all the other petitioners are from theKalutara District from which the Minister was elected to the Parliamentas a Member of Parliament. As already pointed out in one letter theMinister has described his nominee as ‘my youth organizer”. Althoughthe petitioners have stated that they made applications to the ANCL foremployment, they have not produced at least a single copy of suchapplications to substantiate their version. The 1 st petitioner in his counteraffidavit has denied the 3rd respondent’s averments relating to the mannerin which the petitioners came to be employed at the ANCL,
SC Fernando and Others vs. Associated Newspapers of Ceylon Ltd. 147
and Others (Gamini Amaratunga, J)
but his bare denial is not sufficient to controvert the 3rd respondent’saverments supported by documents.
Thus it is clear that the petitioners have secured employment at theANCL as the selected nominees of the Minister under whose purviewthe ANCL came at that time. The petitioners, by stating in their petitionand affidavit that they made applications to the ANCL for suitable postsand were called for interviews have deliberately attempted to suppressthe manner in which they came to be recruited by the ANCL. By thisdeliberate suppression of a material fact, the petitioners have attemptedto give the impression to this Court that they came to be employedthrough the regular process set in motion by their applications.
The basis upon which the peitioners claim relief is that in decidingto terminate their services, the management of the ANCL has disregaredthe practice of the ANCL to absorb into the permanent cadre thosepersons recruited on contract basis upon completion of period of sixmonths service. They further contend that the written assurance givenby the then Chairman in his letter dated 22.03.2004 that the petitionerswould be made permanent in due course, gave them the legitimateexpectation that they would get permanent status in their employment.
The existence of a legitimate expectation, as opposed to a legallyenforceable right, is a relevant factor in considering the just andequitable relief this Court may grant under Article 126(4) of theConstitution when it is shown that the action of the executive whichfrustrates the legitimate expectation amounts to a denial of the rightto equal protection of the law guaranteed by the Constitution. “A personmay have a legitimate expectation of being treated in a certain way byan administrative authority even though be has no legal right in privatelaw". Halsbury’s Laws of England, 4th Ed. Vol. 1(1) P. 151, paragraph81. Lord Fraser in Counsel of Civil Service Union (CCSUO vs. Ministerof Civil Service(1) at 944, said that a legitimate expectation couldarise either from an express promise given on behalf of a publicauthority or from the existence of a regular practice which the claimantcan reasonably expect to continue.
An express promise or an undertaking can take the form of (i) ageneral representation issued either to the ‘world’ or to a particularclass of beneficiaries, or (ii) a specific representation addressed to a
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particular individual or individuals. Such specific representation maytake the form of a letter containing an assurance or a promise of abenefit or a course of action which the authority intends to follow. Seede Smith,. Woolf and Jowell's Principles of Judicial Review; 1999 Ed.p.p. 472 to 478. The petitioners rely on the practice of the ANCL withregard to those employed on contract basis as well as the assurancegiven by the former Chairman by his letter dated 22.03.2004 (P9).
In order to establish the practice followed by the ANCL with regardto those employed on contract, on casual/temporary basis or astrainees, the petitioners have produced, marked P5, P6 and P7, threedecisions of the Board of Directors of the ANCL. The relevant part ofthe Board Decision P5 dated 02.09.2003 is as follows.
“Appointments on contract or as trainees would be for a maximumperiod of six months at the end of which period such recruits would beabsorbed into the permanent cadre on probation for a minimum periodof six months”
This decision would be applicable to those who have already beenrecuited as well as future recruitments.”
The 3rd respondent referring to the above Board Decision has statedthat at the time the said decision was taken by the Board, there wasspeculation that the Ministry of Mass Communication was going to betaken over by H. E. the President and that the decision in P5 had beentaken in anticipation of a possible take over of the Ministry of MassCommunication and a consequent change in the administration of theANCL, in order to safeguard the interests of those who have beenrecruited after the Parliamentary General Election held on 02.12.2001.As already stated, the Ministry of Mass Communication was in facttaken over by the President on 04.11.2003.
The 3rd respondent’s assertion that the Board Decision P5 hadbeen taken to safeguard the interests of those recruited after theGeneral Election held in December, 2001 finds support from BoardDecisions P6 and P7, produced by the petitioners. By Board DecisionP6 dated 07.03.2003 (Prior to P5), the Board had decided to absorbinto the permanent cadre those who have been employed on contract,on casual basis or as trainees for a specific period during 16th
SC Fernando and Others vs. Associated Newspapers of Ceylon Ltd. 149
and Others (Gamini Amaratunga, J)
December, 2001 and 28th February 2003, if they have completed oneyear’s service (subject to probation for six months) or six months service(subject to probation for one year) by the 28th February, 2003.
On 05.11.2003, the day after the Ministry of Mass Communicationwas taken over by the President, schedules containing the names ofpersons who have been recruited on casual/temporary basis, oncontract or as trainees after 1st December, 2001 have been tabled atthe meeting of the outgoing Board of Directors. The Board had decidedto absorb all employees named in those schedules-into the permanentcadre and to confirm them in their posts, with effect from 01.11.2003(document P7). However the new Board of directors on 15.12.2003had decided to annul all appointments made by Board Decision dated
(P7) as those appointments had been made withoutadopting the proper procedure. (R6 and R7)
It is thus clear that Board Decisions P5, P6 and P7 had been takenfor the specific prupose of safeguarding the interests of those recruitedafter the General Election held in December, 2001. If there was aconsistent settled practice in the ANCL to confer permanent status tothose recruited on contract, on casual/temporary basis or as traineeafter they complete six months service, there was no necessity for theBoard to adopt the decisions P5, P6 and P7. Thus those BoardDecisions, instead of supporting the existence of a past practice,demonstrate that there was no such practice.
It was contended on behalf of the petitioners that since BoardDecision P5 remains unannulled and valid, the 2nd and 3rd respondentshave no authority to disregard it. The learned President’s Counsel forthe respondents contended that one Board of Directors cannot take adecision to bind a future Board of Directors and that a later Board isfree not to follow a previous Board Decision. Objections to thepetitioners’ application have been filed not only on behalf of the 2ndand 3rd respondents but also on behalf of the 1 st respondent ANCL.The objections therefore indicate that the present administration, headedby the present Board of Directors, is not inclined to implement theBoard Decision contained in P5.
The petitioners have stated that over 70 persons recruited afterDecember, 2001 have been absorbed into the permanent cadre. The
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3rd respondent in her affidavit has admitted that certain persons recruitedafter December 2001 have been absorbed into the permanent cadre.The petitioners have produced marked P8A and P8B, two letters ofappointment issued to two persons who were first recruited as trainees.One person was a trainee Assistant Store Keeper on 05.05.2003. Evenbefore he completed six months service, he has been absorbed intothe permanent cadre on 01.11.2003 as an Assistant Store Keeper onthe recommendation of the Chief Store Keeper. The other personrecruited in January, 2003 as a Library Clerk has been appointed asAssistant Librarian as she possessed a degree in Library andInformation Science. Both those persons have been absorbed into thepermanent cadre not on the basis of Board Decision P5 but for specialreasons set out in documents R8 and R9. Apart from those twoappointments the petitioners have not shown any other appointmentmade on the basis of Board Decisions P5 and P6.
The petitioners allege that in view of the then Chairman's letter dated
(P9) they entertained a legitimate expectation that theywould be absorbed into the permanent cadre in due course. All copiesof P9, individually addressed to the petitioners, are identical. Paragraphone of the letter indicates that it has been issued in response to therequests made frequently by the petitioners to the Chairman at hisoffice to confirm them in service and to an appeal handed over to theChairman for the same purpose. Paragraph three of the letter statesthat if the employee has completed a period of six months service oncontract or as a trainee, steps would be taken in accordance with theexisting Board Decisions to make him permanent subject to a sixmonths probationary period. It is stated in the fourth paragraph thatsince it is the election time, comfirmation of service is not grantedduring such periods. The letter goes on to state that once the electionis over, steps would be taken to confirm him (the employee) in service.
The 3rd respondent in her affidavit has stated that there is no recordof the former Chairman’s letter P9 in the Personnel Department andthat copies of the letters are not filed of record in the personal files ofthe petitioners in accordance with the normal practice. Those lettersare not addressed to the petitioners through the Personnel Division.Even in the Chairman’s Office a copy of that letter has not been filed ofrecord. The 3rd respondent has described P9 as a personalcommunication between the former Chairman and the petitioners.
SC Fernando and Others vs. Associated Newspapers of Ceylon Ltd. 151
and Others (Gamini Amaratunga, J)
However, there is no denial of the genuinness of P9. The contents ofP9 can give the reasonable expectation to the recipient that he wouldbe made permanent upon completing six months service. However, isthat expectation alone sufficient to make the petitioners entitled to theconstitutional relief for the infringement of the fundamental rightguaranteed by Article 12(1) of the Constitution?
The disappointment of the petitioners' expectations generated byP9 cannot by itself bring the petitioners’ case within Article 12(1)without proof of the additional element that in deciding to terminatetheir services the management has treated them differently from thosewho are similarly circumstanced or that they have been denied theequal protection of the law.
On the facts, the petitioners have failed to establish a past practiceof the ANCL to confirm contract basis employees when they completesix months service. The Board Decisions upon which the petitionersrelied demonstrate the absence of any such practice. When BoardDecision P5 is viewed in the light of Board Decision P6, it is clear thatBoard Decision P5 had been taken with a view to safeguard theinterests of those who have been recruited after the General Electionsheld in December, 2001. Confirmations hurriedly granted by theoutgoing Board of Directors to those who have been recruited after
(P7) on the very next day following the take over of theMinistry of Mass Communication by the President clearly demonstratethe motive behind Board Decisions P5 and P6 as well. Subsequentlythe new Board on 15.12.2003 has annulled the appoinments made byBoard Decision P7 dated 05.11.2003. The petitioners have not shownany instance where permanent status has been granted to anyemployee in accordance with the past practice alleged by them or onthe basis of Board Decision P5.
The two instances cited by the petitioners (P8A and P8B) relate totwo trainees. By its very nature the appointment as a trainee is differentfrom an appointment on contract. Those two trainees have beenabsorbed into the permanent cadre not on the basis of any past practiceor on the basis of Board Decision P5, but for reasons set out in R8and R9 referred to earlier. The petitioners in their counter affidavit havesubmitted lists of persons appointed in December, 2004 (after thisapplication was filed) on one year probation period to Security, Rotary
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and Dispatch Departments of the ANCL. However, there is nothing toindicate that they are persons first recruited on contract, temporary orcasual basis or as trainees or that their appointments have been madeon the basis of the Board Decision P5.
Thus the petitioners have failed to establish that the decision of themanagement to terminate their services in terms of a clause in theirletters of appointment is violative of their right to equality and to theequal protection of the law under the Constitution. The statementcontained in the former Chairman’s letter P9, issued during the electiontime, cannot by itself be of any avail to the petitioners, when theindispensable element to bring their case within Article 12(1) of theConstitution is lacking. The application of the petitioners is accordingdismissed without costs.
In view of this decision SC Applications bearing Nos. 275/2004,276/2004, 277/2004, 369/2004, 370/2004 and 373/2004 also standdismissed without costs.
WEERASURIYA, J.-1 agree.
TILAKAWARDENE, J. -1 agree.
Application dismissed.