JANSZ V. AIR LANKA LIMITED AND OTHERS

010-SLLR-SLLR-1983-2-JANSZ-V.-AIR-LANKA-LIMITED-AND-OTHERS.pdf


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Jansz v. Air Lanka Limited and Others (Ratwatte, J.J
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JANSZ
V.
AIR LANKA LIMITED AND OTHERS
SUPREME COURT
SAMARAKOON. Q.C . C.J.. WANASUNDERA. J.. RATWATTE. J..
RANASINGHE. J. AND ABDUL CADER. J.
SUPREME COURT APPLICATION NO. 45/83AUGUST 29 AND 30. 1983
Fundamental Rights — Application under Article 126 of the Constitution —Article 14(1) (d) and 14(1) (g) of the Constitution — Infringment by executive oradministrative action.
The Petitioner, the Chief Flight Engineer of Air Lanka was also the Secretary ofthe Flight Engineers' Union. It was alleged that the rights guaranteed to him byArticle 14(1) (d) and 14(1) (g) of the Constitution of the Democratic SocialistRepublic of Sri Lanka had been infringed by executive or administrative action.The Petitioner prayed for an order directing the Respondent not to proceed withthe disciplinary inquiry against him and also to withdraw the order ofinterdiction.
Held –
The Petitioner has failed to establish that he has been victimized on account oftrade union activities.
APPLICATION under Article 1 26 of the Constitution.
S. Nadesan. Q.C. with S.H.M. Reeza for Petitioner.
E. S. Amerasinghe S.A. with L.C. Seneviratne and S.L. Gunasekera for 1stRespondent.
K. ■ N. Choksy. S.A. with Mark Fernando and Miss I. R. Rajapakse for 2ndRespondent.
Cur.adv.vult
August 30. 1983.
RATWATTE, J.
At the conclusion of the arguments of learned Counsel for thePetitioner in this case on 30.08.1 983 we made order dismissingthe Petitioner's application with costs and indicated that wewould deliver our reasons later. We now give our reasons.
The Petitioner filed this Application on 13.07.1983 invokingthe jurisdiction of this Court under Article 126 of the
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Constitution. The Petitioner is the Chief Flight Engineer in AirLanka, and is presently under interdiction. He is also theSecretary of the Flight Engineers' Union of Sri Lanka (referred tohereinafter as the Union), the Trade Union of the Flight Engineersof Sri Lanka formed in the year 1978. The Petitioner complainsthat the fundamental rights guaranteed to him by Article 14( 1 )(d)and Article 14(1 )(g) have been infringed by executive oradministrative action. The fundamental rights guaranteed bythese Articles respectively are : The freedom of association,the freedom to form and join a trade union and the freedom toengage by oneself or in association with others in any lawfuloccupation, profession, trade, business or enterprise.
The 1st Respondent is Air Lanka Ltd., a public companyincorporated under the provisions of the CompaniesOrdinance. The 2nd Respondent is the Chairman andManaging Director of the 1st Respondent Company and the3rd Respondent is the Attorney General. The averments inparagraphs 6 and 7 of the petition show that the Governmentof Sri Lanka holds more than 90% of the shares in the 1stRespondent Company. The balance shares are held by threeState Corporations. In terms of the Articles of Association ofthe Company the Government appointed the first Board ofDirectors and as long as the Government holds, whetherdirectly or through any Government Institution or Corporation,not less than 60% of the issued capital, the Government shallbe entitled to nominate the majority of the Board. Theseaverments have been admitted by the 2nd Respondent in hisaffidavit.
The Petitioner's case briefly is as follows: On 16.09.1982the Petitioner was a member of the crew flying the aircraftTristar 4R —A1M. The Captain of the aircraft was CaptainSumerol and the other members of the operating crew werethe Petitioner. Flight Officer Vajirapani. and Cadet PilotSenanayake. While the aircraft was cruising on theHongkong/Bangkok sector Captain Sumerol attempted toassault the Petitioner in the cockpit. The details of the incidentare set out in the letter P4 dated 15.10.1982 sent by thePetitioner to the 2nd Respondent requesting that an inquiry be
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held. It appears from P4 that the incident arose as a result ofcertain questions put by Captain Sumerol to Cadet PilotSenanayake who was undergoing training. The Petitioner isstated to have interceded on behalf of Senanayake as he felt thatcertain unfair questions were being put to Senanayake. ThePetitioner's union had also sent the letter P5 dated 25.10.1982to the General Manager (Technical) Captain Carroll (hereinafterreferred to as Captain Carroll) also complaining about the sameincident and asking for an immediate inquiry. Captain Carrollsent the letter P6 dated 09.1 1.1982 to the Petitioner informinghim that he held an inquiry into the Petitioner's complaint P4 andhad interviewed Captain Sumerol. Vajirapani and Senanayake.Captain Carroll states in P6 that "all agreed that there was someargument and discussion in the cockpit but that there was noloss of control by Captain Sumerol" and that the Petitioner wasnot in danger of physical violence at any time. Captain Carrollsuggests that there may have been a lack of understanding byboth parties due to language difficulties. He stated that "noevidence exists on which any action can be taken and we mustconsider this matter closed". He also stated that the Captain incommand had the legal right to query anyone on board and wasresponsible for the safety of the aircraft. The union reiterated itsrequest for an impartial inquiry by its letter of 30.12.1982addressed to Captain Carroll (a copy of this letter has not beenmarked). Along with that letter the union had forwarded twoaffidavits from Cadet Pilot Senanayake and Flight OfficerVajirapani marked P7 and P8 respectively. On 03.01.1983Captain Carroll is said to have met the Petitioner and given thePetitioner an "ultimatum" to resign from his union. The Petitionerrefused to do so saying that it was his fundamental right to join atrade union of his choice. The Petitioner states that this "verbalultimatum" was followed by the circular P9 dated 10.01.1983which according to ’ the Petitioner required the Petitioner'sresignation from the union. Sometime later when the Petitionerhad arrived from a flight, he had been informed by the AssistantManager Flight Operations Captain Baladharan (hereinafterreferred to as Captain Baladharan) that he had been directed byCaptain Carroll to suspend the Petitioner from all duties untilCaptain Carroll's return. This was confirmed by the letter P10
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dated 27.01.1983 addressed to the Petitioner by CaptainBaladharan. By the letter P11 dated 01.02.1983. the ManagerFlight Operations Captain Pink (referred to hereinafter as CaptainPink) informed the Petitioner that the suspension referred to inP10 "ceased" from 10.30 p.m. on 29.01.1983 on CaptainCarroll's return to Colombo. Thereafter when the Petitioner metCaptain Carroll and Captain Pink regarding the suspension.Captain Pink had informed the Petitioner that the suspension wasnot made in persuance of any disciplinary action against thePetitioner, but that it was only a method of ensuring that thePetitioner stayed in Colombo until Captain Carroll's return toColombo. That this was the reason for the Petitioner'ssuspension was confirmed by the letter P12 dated 10.02.1983from Captain Pink to the Manager Personnel. P1 2 further statedthat the "use of the word suspended was perhaps unwise". TheManager Personnel was requested to ensure that all reference to"suspension" be removed from Petitioner's personal file.
On 07.02.1983 the Petitioner wrote the letter P13 to CaptainCarroll in reply to the latter's letter P6. controverting thesubstance of the letter P6. In regard to the inquiry referred to inP6 the Petitioner expressed surprise that he had not been givenany notice of such an inquiry and had therefore been preventedfrom placing his side of the story. The Petitioner again requestedthat an impartial inquiry be held summoning all parties. TheUnion too also by its letter P14 dated 10.02.1983 raised thisquestion again. On 22.02.1983 the Petitioner was informed byCaptain Ratnayake by the Notice P1 5 that an inquiry will be heldat 1 2.30 p.m. on the same day regarding the incident that tookplace on 16.09.1 982. The Petitioner received PI 5 at 12.40 p.m.and therefore was unable to attend the inquiry because thenotice was received late. The Petitioner so informed Captain Pinkby his letter P16 of the same date.
The Circular P17 dated 04.03.1983 from Captain Pinkaddressed to the Manager Personnel set out a new scheme of“Re-organisation in the Flight Operations Department". Copies ofP17 had been sent to the Petitioner. Deputy Chief FlightEngineer, the 2nd Respondent and Captain Carroll. Inconsequence of the new scheme set out in P17 all Flight
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Engineers were to be given training to enable them to obtainPilot's Licences, so that they could be appointed as SecondOfficers with prospects of promotions as First Officers. As andwhen the new programme is implemented the posts of ChiefFlight Engineer and his deputy would be discontinued.
By P18 of 10.03.1983 the Manager Personnel informed thePetitioner that an inquiry would be held on 24.03.1983 into thePetitioner's complaint against Captain Sumerol. The Petitionerwas requested to be present. P18 further states that the inquirypanel will also look into the following aspects of the Petitioner'sconduct on 16.09.1982 "which transpired at the preliminaryinvestigations": (1) For having authorized Cadet Pilot Senanayaketo occupy the seat which he was not qualified to occupy andfurther allowing him to do ramp checks which he was notcompetent to do; and (2) for having left the cockpit without thepermission of the Captain. The Petitioner states that he was notaware of any preliminary investigations and that no copy of anycomplaints made against him was given to him. The inquiry washeld on 25.03.1983 and in paragraph 24 of the petition thepetitioner complains about the manner in which the inquiry washeld and the procedure that was followed. Further inquiry wasfixed for 05.04.1983. The Petitioner by his letter P19 dated
addressed to the Manager Personnel complainedabout the manner in which the inquiry was conducted.
In paragraph 25 of the petition the Petitioner states that on
the 2nd Respondent summoned the Petitioner tothe office. When the Petitioner met the 2nd Respondent the lattertried to persuade the Petitioner to withdraw his complaint againstCaptain Sumerol. The Petitioner was prepared to do so providedCaptain Sumerol apologized to him and the inquiry against thePetitioner was withdrawn. The 2nd Respondent informed thePetitioner that he would be out of the Island for 3 or 4 weeks andthat he would consider the matter on his return. In themeanwhile the 2nd Respondent gave instructions to theManager Personnel to postpone the inquiry fixed for thefollowing day.
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The union sent the letter P20 dated 06.06.1983 addressed tothe 2nd Respondent regarding "Excess Expatriate FlightEngineers". In this letter the Union alleged that the managementof Air Lanka was keeping on its payroll several redundantexpatriate Captains and Flight Engineers wasting several lakhs ofSri Lankan funds. The Manager Personnel by letter P21 dated
replied to P20. What P21 in effect stated was thatthe union had no right to interfere in the administration of theCompany.
In paragraph 28 the Petitioner states that on 12.06.1983Captain Pink informed him on the telephone that the 2ndRespondent wanted the Petitioner to be interdicted because hewas a member of the Union. On the following day when thePetitioner met Captain Pink in the latter's office, the Petitionerwas informed that the 2nd Respondent was adamant that thePetitioner should be dismissed. On the same day by letter P22Captain Pink informed the Petitioner as follows: "Dependent on adecision on your future by the Board of Management of AirLanka, will you please cancel the trip you were to do onTuesday14th June 1983." By P23 of 14.06.1983 addressed toCaptain Pink, the Petitioner lodged his strong protest. In P23 thePetitioner also states that on the previous day at the discussionCaptain Pink had agreed that "that reason the Chairman had inmind did not warrant interdiction". By the letter P24 dated
the Manager Personnel informed the Petitioner thathe had been interdicted with effect from 14.06.1983 withoutpay. By the letter P25 dated 15.06.1983 addressed to thePetitioner, Captain Pink confirmed P24. In the said letter CaptainPink denied the statement made by the Petitioner in P23 thatCaptain Pink had agreed that the reason urged by the Chairmandid not warrant the Petitioner's interdiction. By the letter P26dated 19.06.1983 the Manager Personnel informed thePetitioner that he will be entitled to receive his pay pending theoutcome of the Disciplinary Inquiry. The Petitioner was furtherinformed that a Charge Sheet would be sent. By the letter P27dated 23.06.1983 addressed to Captain Pink the Petitioner setout the sequence of events which culminated in his interdiction.Captain replied to this letter by P28 of 28.06.1983 in which he
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denied certain statement made by Petitioner in P27. ThePetitioner thereafter received the Charge Sheet P29 dated
setting out five charges against the Petitioner. ThePetitioner was requested to show cause within two weeks. On
the Petitioner sent the show cause letter P30. Threedays later the Petitioner filed this application.
The Petitioner states that the acts of the Respondentsenumerated in his petition are in violation of his fundamentalrights guranteed to him by the Constitution and that he fears thatthe Respondents will terminate his services because of hismembership in the Union. The Petitioner prays for a declarationthat the steps taken by the Respondents in taking disciplinaryaction are in violation of his fundamental rights, particularly therights set out in Articles 14(1)(c). (d) and (g); for an orderdirecting the Respondents not to proceed with the disciplinaryinquiry against the Petitioenr and also to withdraw the order ofinterdiction; for compensation at Rs. 15.000/- per month; andfor costs.
The Petitioner filed a further affidavit on 18.07.1983. In thisaffidavit the Petitioner states that he received the letter P33 dated
983 from Captain Carroll offering to send the Petitionerabroad for Pilot training. The letter further informed the Petitionerthat if he obtained the training he could move up to the post of1st Officer. Captain and even a higher position. If he acceptedthis offer he would have been detached from flight operationsfrom 01.02.1983. Petitioner did not accept this offer. By letterP34 dated 22.04.1 983 from Captain Carroll a similar offer wasmade to Petitioner. By P35 dated 03.05.1983 addressed toCaptain Carroll, the Union set out the conditions on which theFlight Engineers were prepared to accept the offer made by P34.Captain Carroll sent the reply P36 dated 05.05.1983 that theterms offered by the Company were exceedingly generous andthat the Company was not prepared to negotiate on them. The2nd Respondent too wrote to the union in similar terms; videP37 dated 06.05.1983.
The 2nd Respondent filed his affidavit on behalf of himself and .on behalf of the 1st Respondent, to which was attached a
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number of documents including affidavits by the followingpersons; Captain Carroll-R 11; Captain Pink-R 1 2; Flight EngineerKumar Singh-R13; Captain Baladharan-R14; Assistant ManagerFlight Operations Ratnayake R15; Deputy Chief Flight EngineerJayasuriya-R16; and First Officer Bibile-R 1 7.
At the hearing before us learned Counsel for the Petitioner Mr.Nadesan after setting out the sequence of events whichculminated in the interdiction of the Petitioner and the serving ofthe Charge Sheet, contended that everything flowed from thefact that the Petitioner refused to resign from the Union. Thequestion that therefore arose for our consideration was whetherthe Petitioner was victimized on account of his union activities. Itis accordingly necessary to examine the material directly relevantto this issue. According-to the Petitioner the first time that thequestion of his membership of the union was raised was on
when Captain Carroll gave the Petitioner an"ultimatum" to resign from the union. Captain Carroll inparagraph 10 of his affidavit R11 gives his reply to this allegationof the Petitioner. According to Captain "it was normal Airlinepractice to consider it unhealthy for those holding managerialposts to be active members of their unions since there wasalways the possibility that in a dispute between a Trade Unionand the Management a conflict of interests could arise betweensuch persons holding managerial appointments and theCompany". Captain Carroll explained this position to thePetitioner and told him that it was his view that it would bedesirable for Air Lanka also to adopt a similar practice and thatthere would not be any objection to such an officer being anassociate member of a Trade Union. Captain Carroll denied thathe gave an ultimatum to the Petitioner to resign from the unionand further denied that the Petitioner refused to do so saying thatit was his fundamental right to be a member of a trade union.Captain Carroll states that the Petitioner did tell him that at thetime of the Petitioner's appointment as Chief Flight Engineer hewas not told that he could not be a full member or an official ofhis Union. Captain Carrol then replied that the Petitioner "was
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not in anyway being compelled to resign either the office held inthe Union or his membership", but that it was desirable forpersons holding managerial posts to cease to be activemembers.
The next step according to the Petitioner was the sending ofthe Circular P9 dated 10.01.1 983. This Circular which is signedby Captain Carroll is addressed to Captain Pink. The contents ofP9 are as follows:
‘To avoid any conflict of interest. Air Lanka, in line withnormal airline practice, expects all management staff tocease all union activities during the period of theManagement appointment. This will necessitate theirresignation from all Union positions and cessation of fullmembership of their Union. Would you please inform thefollowing personnel, and obtain agreement from them onthis issue preferably in writing;
Assistant Manager Flight Operations — Captain L.Ratnayake
Assistant Manager Flight Operations — Captain BaladharanChief Flight Engineer — G.A.L.B. Jansz (The Petitioner)Deputy Chief Flight Engineer — S. J. S. Jayasuriya."
Copies of P9 have been sent to the 2nd Resondent the ManagerPersonnel. As regards this Circular the 2nd Respondent states inhis affidavit that it was not issued as a result of a decision takenby the Board or by the 2nd Respondent, but was issued byCaptain Carroll. He further states that the circular was consistentwith normal airline practice but that compliance with it was notinsisted upon. Captain Carroll in his affidavit states that it was hewho circulated P9. There are three other officers mentioned inP9. Two of them viz. Captain Baladharan and Captain Ratnayakein their affidavits R14 and R15 respectively, state that they aremembers of the Airline Pilots Guild of Sri Lanka, which is theregistered Trade Union for pilots. The fact that they weremembers of the Trade Union had been disclosed by them to AirLanka when they joined its service. They both state that inspite oftheir membership of the Union they received their respective
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promotions in due time. Though they received the Circular P9they did not resign from their Union. They both affirm that theyhave not been discriminated against in any manner whatsoever.The 4th officer referred to in P9 Jayasuriya states in his affidavitR16 that at the time he joined Air Lanka he was the AssistantSecretary of the same Union of which the Petitioner wasSecretary. Though he continued to be a member of the Union hereceived all his due promotions. At no time was any ultimatumgiven to him, nor was he discriminated against at anytime.Though he received P9 he did not resign from the Union. Hecontinued to be a member till 06.07.1983 when he resignedfrom the union as he was dissatisfied with certain actions takenby the Union. First Officer Bibile in his affidavit R17 states thatwhen he joined Air Lanka in April 1 979 as a First Officer he wasa member of the Airline Pilots Guild. He was confirmed as FirstOfficer in Air Lanka in April 1 980. He is at present the Secretaryof his Union, but he has never been victimized in any mannerwhatsoever.
As regards the Petitioner's allegation that on 12.06.1983Captain Pink informed him on the telephone that the 2ndRespondent wanted the Petitioner to be interdicted because ofhis membership of the Union, there is the affidavit of CaptainPink — R12. Captain Pink confirmed that the 2nd Respondentinstructed him to interdict the Petitioner but specifically deniesthat the 2nd Respondent instructed him to do so because thePetitioner was a member of the Union. He further denies that heconveyed to the Petitioner any such statement as having beenmade by the 2nd Respondent.
As regards the letter P27 sent by the Petitioner to Captain Pinkon 23.06.1983 in which the Petitioner refers to the statementalleged to have been made by Captain Pink that the 2ndRespondent wanted the Petitioner to be interdicted because ofhis Union membership there is the denial by Captain Pink both inhis reply P28 and in his affidavit. Captain Pink only expressed theview to the Petitioner that being an active official of the Trade
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Union was not compatible with the Petitioner holding amanagerial position in the Company.
The Petitioner also replied on the letter P20 dated 20.06.1983sent by the Union to the 2nd Respondent regarding ExcessExpatriate Flight Engineers. But by the date P20 was sent aninquiry against the Petitioner had already commenced, i.e. on
During the course of his argument learned Counselfor the Petitioner Mr. Nadesan stated that he was unable to saywhether P20 was the cause for the Charge Sheet P29.
Apart from these items. Mr. Nadesan also relied strongly onwhat he referred to as certain irregularities in the procedureadopted by the Management to initiate disciplinary proceedingsagainst the Petitioner and manner in Which the inquiry wasconducted. The Petitioner had referred to these matters in hisletter P19 to the Manager Personnel. Mr. Nadesan referred toP31 a copy of the Disciplinary Rules of Air Lanka and argued thatthe rules had been flouted. Even assuming that the rules havebeen flouted, we are not concerned in the instant proceedingsunder Article 126 of the Constitution, with the propriety of thesteps taken and irregularities if any, in the conduct of the inquiry.The Petitioner may have other remedies.
It was Captain Carroll and Captain Pink who took up with thePetitioner the question of his membership of the Union and notthe 2nd Respondent. It is quite clear that neither Captain Carrollnor Captain Pink took seriously the allegations that were madeagainst the Petitioner in consequence of the incident that tookplace between the Petitioner and Captain Sumerol on16.09.1982. These allegations were conveyed to the Petitionerfor the first time by letter P18 dated 10.03.1983 which I havealready referred to above. Even the Manager Personnel did notseem to have considered the conduct of the Petitionerreprehensible. It was the 2nd Respondent who has taken theallegations seriously. The 2nd Respondent in his affidavit deniesthat he summoned the Petitioner on 04.04.1983. He states thatit was the Petitioner who came to his office and sought aninterview and though he had a very busy schedule he granted the
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Petitioner an interview. The 2nd Respondent further states thathe told the Petitioner that as he and Captain Sumerol have to flytogether they should resolve their dispute. The Petitioner agreedto do so. The 2nd Respondent denies that the Petitionerindicated that Captain Sumerol should apologise to him. The 2ndRespondent informed the Petitioner that he was aware that aninquiry was being held into the conduct of Captain Sumerol onthe Petitioner's complaint but that he was unaware of an inquirybeing held against the Petitioner. The 2nd Respondent furtherstates that on his return from America at a discussion with theManager Personnel he was informed that the differencesbetween the Petitioner and Captain Sumerol had not beenresolved. It was only on that occasion that the 2nd Respondentlearnt about the two allegations made against the Petitioner.These are the two allegations referred to in P18. The 2ndRespondent states that after consideration he decided that aCharge Sheet ought to be served on the Petitioner and that thePetitioner be interdicted pending inquiry. He accordingly issuedinstructions to the Manager Personnel. He had also directedManager Personnel that the Petitioner's allegation againstCaptain Sumerol should be further inquired into. The 2ndRespondent denied that the decision to interdict the Petitionerwas taken by him because the Petitioner was a member of theUnion or that he told anyone that that was the reason for thePetitioner's interdiction. Mr. Nadesan in the course of hisargument stated over and over again that he was not alleging anymalice against the 2nd Respondent or attributing any motives tohim.
In view of the denial of the Petitioner's allegations by the 2ndRespondent and the others, there remains only the Petitioner'saffidavit. On the material available before us we were of the viewthat the Petitioner has failed to establish that he was beingvictimized on account of his trade Union activities. For thesereasons we dismiss the Application with costs.
SAMARAKOON, C. J. — I agreeWANASUNDARA. J. — I agreeRANASINGHE, J. — I agreeABDUL CADER, J. — I agree
Application dismissed