023-SLLR-SLLR-2003-V-3-GAWARAMMANA-v.-TEA-RESEARCH-BOARD-AND-OTHERS.pdf
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GAWARAMMANAv
TEA RESEARCH BOARD AND OTHERSCOURT OF APPEALSRIPAVAN, J.
CA 809/99JUNE 27, 2003AUGUST 29, 2003
Writ of Certiorari – Termination Challenged – Does the petitioner's contract ofemployment have a statutory flavour? – Employment contractual – Does cer-tiorari lie? – Public Office.
The services of the petitioner who was employed as a Transport Officer of the1st respondent was terminated after Inquiry. A writ of certiorari was sought to. quash the decision to terminate his services and a writ of mandamus to com-pel the respondents to re-instate him.
Held :
The employment of the petitioner under the Tea Research Institute wascontractual and as such no writ lies to remedy grievances from analleged breach of contract or failure to observe the principles of natur-al justice.
Powers derived from contract are matter of private law. The fact thatone of the parties to the contract is a public authority is not relevantsince the decision sought to be quashed by way of certiorari is itselfwas not made in the exercise of any statutory power.
APPLICATION in the nature of writ of certiorari/mandamus..
Cases referred to:
Rv Electricity Commissioner – 1924 1 KB 171 at 204.
Chandradasa v Wijeratne – 1982 1 Sri LR 412 at 415.
U.S. de Silva v National Water Supply and Drainage Board andAnother – 1989 2 Sri LR 1
R v British Broadcasting Corporation ex p. Lavelle – 1983 1 WLR 23
R v Lord Chancellor’s Department ex. p. Nangle – 1992 1 ALL ER 897.
Ariyaratne v Sri Lanka Institute of Architects – 2001 3 Sri LR 288.
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Nanayakkara v Institute of Chartered Accountants 1981 2 Sri LR 52.
Jayaweera v Wijeratna 1985 – 2 Sri LR 413.
Hemantha Situge with S. Sawaad for petitioner.
Ms. M.N.B. Fernando, S.S.C. for 1-16th respondents.
17th and 18th respondents absent and unrepresented.
Cur.adv. vult
October 7, 2003SRIPAVAN, J.
The petitioner was employed as a “Transport Officer” of the 01Tea Research Institute with effect from 1st July 1996 by the secondrespondent. The said appointment of the petitioner was subject toa probationary period of three years as evidenced by the letter ofappointment marked P1. On or about 17th December 1997 thepetitioner received a letter of interdiction signed by the secondrespondent dated 11th December 1997 marked P6. Thereafter thepetitioner received a charge sheet dated 27th January 1998marked P7 preferring ten charges levelled against him. When theinquiry commenced on 4^ March 1998, upon a preliminary objec- 10tion raised by the defence counsel, an amended charge sheetsigned by the second respondent was served on the petitionermarked P8. Thereafter, the inquiry commenced on the amendedcharge sheet by the seventeenth respondent and concluded on 8thMay 1999.
The basis of petitioner’s challenge in these proceedings are as fol-lows:—
That the petitioner was not given an opportunity of beingheard and an unbiased, free and fair inquiry has been denied
to him.20
That the seventeenth respondent, namely, the inquiry officercould not have performed his functions in the districts ofNuwara Eliya and Ratnapura where the disciplinary inquirieswere held.
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That the inquiry officer acted without jurisdiction.
That the letter of termination marked P13 was not signed by
the disciplinary authority and therefore void ab initio.
Thus, the petitioner seeks to quash the decision to terminatehis services from the Tea Research Institute dated 8th July 1999marked P13 and a writ of mandamus compelling the first to six-teenth respondents to re-instate the petitioner with back wagesand all other benefits.
The learned Counsel for the petitioner was unable to showany statutory provisions or any rules made by the Tea ResearchBoard which advert to the powers or duties attached to the post of“Transport Officer” and the procedure for termination of servicesfrom the Tea Research Institute. In the circumstances, the prima-ry issue for determination is that in the event of a dispute arisingwith regard to the termination of the services of the petitioner, canhe seek relief by way of certiorari or mandamus? In Rv ElectricityCommissioned) at 204 the writ of certiorari was said to be avail-able against “any body of persons having legal authority todetermine questions affecting the rights of subjects and hav-ing the duty to act judicially”. Accordingly, the person deter-mining the questions must have legal authority to do so. This beingso, it is necessary to ascertain in the first instance whether the deci-sion. sought to be quashed was made in the exercise of any statu-tory power.
In the case of Chandradasa v Wijeratne <2> at 415 where thepetitioner sought to quash the order of dismissal on the grounds ofmala tides, bias and also on the ground of not being given a fairopportunity of being heard, Thambiah. J succinctly stated as fol-lows; “No doubt the competent authority was established bystatute and is a statutory body. But the question is, when therespondent as competent authority dismissed the petitioner,
did he do so in the exercise of any statutory power?The
Act does not deal with the question of dismissal of employeesat all. It does not specify when and how an employee can bedismissed from service – the grounds of dismissal or the pro-cedure for dismissal. So that, when the respondent made hisorder of dismissal, he did so in the exercise of his contractu-
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al power of dismissal and not by virtue of any statutory powerIf the petitioner’s dismissal was in breach of the terms
of the employment contract, the proper remedy is an action fordeclaration or damages. The Court will not quash the decisionon the ground that natural justice has not been observed.”
The case of K.S. De Silva v National Water Supply andDrainage Board and another (3) referred to by the learned SeniorState Counsel is also relevant to consider. In this case, the peti-tioner sought a writ of mandamus on the General Manager of the ?orespondent Board on the basis that he has failed to carry out thedirections of the said Board and has failed to appoint the petitionerto the post of Accountant, Grade IV. G.P.S. de Silva, J. (as he thenwas) commented thus; “Mr. Perera referred us to Sec. 68 and 69of the National Water Supply and Drainage Board Law No. 2 of1974. But these two Sections refer only to the powers and dutiesof the General Manager of the Board and the powers of the Boardto appoint to its staff such officers and servants as the Board maydeem necessary and determine their terms of remuneration andother conditions of employment. We were not referred to any rules somade under the said Law No. 2 of 1974 which speak of powers orduties attached to the post of Accountant. In my opinion, the officeto which the petitioner is seeking admission is not a “public office”of the kind which attracts the remedy of mandamus. It is an officeessentially of a contractual or private character. Accordingly, as amatter of law, the writ of mandamus does not lie and the applica-tion must fail.”
An employee of the British Broadcasting Corporation failed inher application for certiorari to quash her dismissal by theCorporation since the ordinary contractual obligations of master 90and servant had never been within the prerogative orders of man-damus, prohibition and certiorari (Vide R v. British BroadcastingCorporation ex. p Lav'e//e(4). A civil servant failed in attempting tohave a disciplinary penalty quashed since his proper course wasto sue for breach of contract. The Queens’ Bench Division in thecase of R v Lord Chancellor's Department ex. p Nanglei5) held that“the internal disciplinary procedures of the applicant’s depart-ment arose out of his appointment and were consensual,domestic and informal unlike an appeal to an independent body
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set up under the prerogative. As such, judicial review would not 100be an appropriate remedy since there was an alternative andmore effective remedy available from an industrial tribunal. Theapplication for judicial review would therefore be dismissed.”
Learned Counsel for the petitioner strenuously contendedthat the petitioner’s contract of employment has a statutory flavourand heavily relied on the judgments of Ariyaratne v Sri LankaInstitute of Architects<6) and Nanayakkara v Institute of CharteredAccountants ,(7) In Ariyaratne’s case (supra) the petitioner sought awrit of mandamus directing the respondents to admit/enroll thepetitioner as a Corporate Member. The Court upheld the argument 110put forward by the learned Counsel for the petitioner that Sec. 8 (1)of Law No. 1 of 1976 lays down the disqualifications precludingmembership and the petitioner was not disqualified in any mannerwhatsoever from the membership as set out in Sec. 8 (1). InNanayakkara’s case, (supra) the Court observed that an exami-nation of the regulations framed under the statute, namely theManual of Procedure showed that the petitioner’s employment hada statutory flavour which differentiated from ordinary relationshipof master and servant.
The aforesaid two cases cited by the learned Counsel for the 120petitioner have no application to the case in hand. No statutory pro-vision or regulations made by the Board giving statutory flavour tothe post of “Transport Officer” were brought to the notice of court.Therefore, the petitioner has no powers and duties statutorily vest-ed in him. The powers derived from contract are matters of privatelaw. The fact that one of the parties to the contract is a publicauthority is not relevant since the decision sought to be quashed byway of certiorari is itself was not made in the exercise of any statu-tory power. (Vide Jayaweera v Wijeratna)S8'>
For the reasons stated, I am inclined to agree with the sub- 130missions made by the learned Senior State Counsel that theemployment of the petitioner with the Tea Research Institute wascontractual and as such neither certiorari nor mandamus would lieto remedy grievances arising from an alleged breach of contract orfailure to observe the principles of natural justice. The argument ofthe learned Counsel for the petitioner that the letter of termination(P 13) was not signed by the disciplinary authority, namely the sec-
Gawarammana v Tea Research Board and others
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ond respondent does not hold water. It was issued under the handof the second respondent and countersigned by the DeputyDirector (Administration). It is also observed that the petitioner at nostage objected to the jurisdiction of the inquiry officer. Having par-ticipated at the inquiry without raising any objections, the petitioneris now estopped from challenging same at the eleventh hour.
The petitioner’s application is therefore dismissed. There willbe no costs.
Application dismissed.
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