JAYAKODY v. SRI LANKA INSURANCE AND ROBINSON HOTEL CO. LTD AND OTHERS

026-SLLR-SLLR-2001-V-1-JAYAKODY-v.-SRI-LANKA-INSURANCE-AND-ROBINSON-HOTEL-CO.-LTD-AND-OTHERS.pdf


JAYAKODY
v.SRI LANKA INSURANCE ANDROBINSON HOTEL CO. LTD AND OTHERS
SUPREME COURTFERNANDO, J.
WADUGODAPITIYA, J. ANDGUNASEKERA, J.
SC APPLICATION NO. 769/9801st MARCH, 2001
Fundamental rights – “Executive or administrative action’’ – Meaning of“state agency” – Whether acts of agents of “state agencies” may infringefundamental rights – Articles 12(1) and 126 of the Constitution.
The petitioner, an employee of Robinson Club Bentota Ltd. (the 2ndrespondent) complained that he had been suspended from his service bythe Company by a letter signed by the 11 ^ and 12th respondents as “ChiefAccountant” and “General Manager" respectively, on account of analleged fraud, in violation of his rights under Article 12(1) of theConstitution. A preliminary objection was taken that the applicationshould be dismissed in limine as the impugned act did not constitute“executive or administrative action”.
The 2nd respondent Company (a hotel enterprise) and the 1st respondentcompany were registered pursuant to a joint venture agreement betweenthe Sri Lanka Insurance Corporation Ltd. (SLIC), the successor to theInsurance Corporation of Sri Lanka (ICSL) which was a public Corporationand Robinson Hotel GMBH (“Robinson”), a Corporation registered inGermany. All the shares of the SLIC are held by the Secretary to theTreasury, for and on behalf of the State and its Chairman and Directorsare appointed by the State. In respect of the Is' and 2nd respondentcompanies ICSL was to have 80% of the issued share capital. Out of atotal of five Directors, ICSL was entitled to nominate (with the approvalof the relevant Minister) four Directors in the case of the 151 respondentand three Directors in the case of the 2nd respondent.
The joint venture agreement further provided that the lsl respondentwould, by a lease agreement, lease the hotel to the 2nd respondent for 20years and that the 2nd respondent would by a Management Agreemententrust the management of the hotel to Robinson. In terms of the
366
Sri Lanka Law Reports
120011 1 SriL-R.
Management Agreement (though not formally signed) "management"Included the hiring and discharge of employees.
Held :
The 2nd respondent is a State agency; that the petitioner’s suspensionwas by the 2nd respondent and therefore, “executive or administrativeaction" in character; that Robinson was an agent of the 2nd respondent;and even on the assumption that suspension was by Robinson, the actof Robinson was in law the act of the 2nd respondent on the principles ofthe law of agency, and was, therefore, "executive and administrative" incharacter.
Per Fernando, J.
“The State may set up a Corporation which it (in substance) owns andcontrols; that Corporation may set up a limited liability companywhich it (in substance) owns and controls: the company in turn mayset up another company or other entity . . . and so on. But howeverlong the chain may be, if ultimately it is the State which has effectiveownership and control, all those entities – every link in that chain -are State agencies" Samson v. Sri Lanka Airlines Ltd. SC 791/98 andSC. 798/98 SCM 11. 01. 2001 (D.B.) distinguished.
Cases referred to :
Samson v. Sri Lankan Airlines Ltd. SC 791 /98 and SC 798/98 SCM11. 01. 2001 (D.B.)
Hewamailikage v. People’s BankS.C. 291/93 SCM 14. 10. 1994
Carson Cumberbatch & Co. v. Nandasena (1973) 77 NLR 73
Rafaratne v. Air Lanka (1987) 2 SRI LR 128
APPLICATION for relief for infringement of fundamental rights(Preliminary objections)
Manohara de Silva for petitioner.
E.D. Wickremanayakewith LLA. Najeemfor 1“, 2nd, 3rd, 5th, 7lh, and 9th, to12th respondents.
K. Srtpavan. Deputy Solicitor-General for 4th, 6th. 8th and 13th respondents.
Cur. adv. vult.
sc
Jayakody u. Sri Lanka Insurance and .
Robinson Hotel Co. Ltd. and Others (Fernando. J.)
367
July 13, 2001.
FERNANDO, J.The Petitioner alleges that his suspension from servicewas in violation of his fundamental right under Article 12(1).He was granted leave to proceed. At the commencement ofthe hearing a preliminary objection was taken that theapplication should be dismissed in limine as the impugnedact did not constitute “executive or administrative action”.
FACTSThe following facts are not disputed. The Sri LankaInsurance Corporation Ltd. (“SLIC”) is a private limited liabilityCompany, being the successor to the Insurance Corporationof Sri Lanka (“ICSL”), which was a public Corporation; all theshares of SLIC are held by the Secretary to the Treasury, forand on behalf of the State; and its Chairman and DirectorsEire appointed by the State. Robinson Hotels GMBH & Co. KG(“Robinson”) is a Corporation registered in Germany. ICSLand Robinson entered into a Joint Venture Agreement dated
03. 80 for the purpose of establishing “a holiday club typehotel" (“the Hotel”) at Bentota. That Agreement provided forthe incorporation of two private limited liability companies inSri Lanka: the “Sri Lanka Insurance and Robinson Hotel Co.Ltd.” (the 1st Respondent) for the purpose of building, owning,furnishing and equipping the Hotel, and the “Robinson ClubBentota Ltd.” (the 2nd Respondent) for the purpose of operatingthe Hotel. In respect of both companies, ICSL was to have80% of the issued share capital. Out of a total five Directors,the ICSL was entitled to nominate (with the approval of therelevant Minister) four Directors in the case of the 1stRespondent, and three in the case of the 2nd Respondent.
The 3rd Respondent is the Chairman, and the 5th to 9thRespondents are the Directors of SLIC. The 3rd Respondent isthe Chairman, and the 5th, 7th and 9th Respondents are theDirectors, of the 1st and 2nd Respondent companies, of whichthe 10th Respondent is an alternate Director.
368
Srt Lanka Law Reports
1200111 Sri L.R.
The Joint Venture Agreement further provided that the1st Respondent would, by a Lease Agreement, lease the Hotelto the 2nd Respondent for 20 years, and that the 2nd Respondentwould, by a Management Agreement, entrust the managementof the Hotel to Robinson. The Respondents produced a copyof the Joint Venture Agreement, to which was annexed a draftManagement Agreement, which did not appear to have beensigned. The original Joint Venture Agreement was latersubmitted for our perusal, and it then became clear that theManagement Agreement was never signed. The draft includedthe following:
“(The 2nd Respondent) hereby appoints ROBINSON asManager of the Club Hotel and authorises ROBINSON tomanage (the) affairs of the Club Hotel in accordance withthe terms and conditions agreed below . . . (The 2ndRespondent) hereby authorises ROBINSON to undertakeand conclude all the legal transactions necessaiy in thisAgreement for and on behalf of (the 2nd Respondent) . . .(and) agrees to give any specific authority and power . . .as shall be necessary… to enable ROBINSON to completeall such legal contracts and enter into any agreement withany person for the purpose of carrying out the dutiesentrusted to ROBINSON . . .
(The 2nd Respondent) will not directly encroach upon theday to day management of the Club Hotel or interfere intoany matter of usual and ordinary operation and take partin its management only in the manner stipulated expresslyunder the terms of this Agreement . .(Article 1)
“Throughout the Management Period (the 2nd Respondent)shall entrust to ROBINSON the exclusive management ofthe Club Hotel and ROBINSON shall discharge fullresponsibilities to the Board for the management of (the2nd Respondent’s) Club Hotel. . .
Subject to the terms of this Agreement ROBINSON shallhave absolute control and discretion in the management
sc
Jayakody v. Sri Lanka Insurance and
Robinson Hotel Co. Ltd. and Others (Fernando, J.)
369
of the Club Hotel. The control and discretion by ROBINSONshall include the use of the Club Hotel for all customarypurposes, terms of admittance, charges for rooms andcommercial space, entertainment and amusement, foodand beverages, labour policies (including wage rates, thehiring and discharging of employees), and all phases ofpromotion and publicity relating to the Club Hotel withinthe general terms of the approved annual budget. . .
In the course of its management ROBINSON’s particularduties shall be (a) to select and provide the necessarystaff and personnel for the conduct of the hotel business,to conclude the contracts of employment, staffand personnel in case of necessity . . (Article 11)(emphasis added throughout)
Although that Agreement was never signed, it is likely -and I will assume – that the 2nd Respondent and Robinsonacted on the basis set out in that Agreement.
PRELIMINARY OBJECTIONIn the written submissions filed on behalf of the 1st to 3rd,5th, 7th and 9th to 12th Respondents (whom I will refer to as“the first set of Respondents”) it was contended :
“It is an admitted fact that the Petitioner was employedby ROBINSON and he was suspended by P5 which issigned by the 11th and 12th Respondents who were theChief Accountant and the General Manager respectivelyof the 2nd Respondent. . .
. . . the suspension of the Petitioner’s employment cannotbe treated as an ‘executive or an administrative’ action .. .since ROBINSON is responsible for the day to daymanagement of the Hotel including hiring and dischargingof the Petitioner in terms of the Management Agreement.
. . . although the Petitioner’s suspension wascommunicated to him by the letter head of the 2nd
370
Sri Lanka Law Reports
12001] 1 Sri L.R.
Respondent, factually the said suspension was effectedby ROBINSON in the course of its managementdecision. Therefore this decision cannot be termed as‘executive or administrative action’ since the 2ndRespondent did not participate at all in taking such adecision. Further ROBINSON is neither an agency nor aninstrumentality of the State . . ."
On behalf of the other Respondents, too, it was claimed :
“. .. the said termination (suspension ?) of employment ofthe Petitioner by the aforesaid management companynamely Robinson Hotels GMBH & Co. KG, cannotconstitute executive and administrative action
Both sets of Respondents relied on the decisions of a benchof five judges in Samson v. Sri Lankan Airlines Ltd,1".
WHOSE EMPLOYEE WAS THE PETITIONER ?It is necessary to determine whether the Petitioner wasan employee of the 2nd Respondent or of Robinson.
The Management Agreement provides that Robinson mayengage and nominate the “Hotel Manager" subject to the priorapproval of the 2nd Respondent; and that his annual salary(and other benefits such as airfares, free accommodation, etc,for himself and his family) is to be charged to the 2ndRespondent (Article VII). Article XII provides that Robinsonshall be responsible for “all travelling and other expensesincurred by its executives and experts except all costs incurredat the Club Hotel itself; and that Robinson may charge the2nd Respondent “with the real staff costs … of those Robinsonemployees that replace an employee of the Club Hotel for alimited or unlimited period”.
Clearly, there were two categories of employees: “Robinsonemployees”, whose remuneration had to be borne by Robinson;and “employees of the Club Hotel", whom the 2nd Respondent
sc
Jayakody v. Sri Lanka Insurance and
Robinson Hotel Co. Ltd. and Others (Fernando. J.)
371
had to remunerate and the latter Included the “Hotel Manager”(presumably, this meant the General Manager).
It is admitted that the 11th and 12th Respondents werethe Chief Accountant and the General Manager, respectively,of the 2nd Respondent. They cannot therefore be regarded asemployees of Robinson.
As for the Petitioner, he averred that “in January 1996 hejoined the 2nd Respondent Company and holds the post ofCost Controller”; that on 9. 11. 98 he was served with a letter.dated 6. 11. 98 informing him of his suspension from serviceon account of an alleged fraud; and that no preliminaiyinvestigation had been held. That letter is on a printedletter head, which has in small type “Robinson Club BentotaLtd.” both at the top and the bottom, and in large type“Robinson Club Bentota” on top. It is addressed to thePetitioner as “Cost Controller”; and is (admittedly) signed bythe 11th and 12th Respondents as “Chief Accountant” and“General Manager" respectively.
In the statement of objections filed on behalf of the firstset of Respondents, and in the sole supporting affidavit of the11th Respondent, reference was made to the Petitioner’semployment in the 2Dd Respondent; that the Petitioner wasoffered employment by the expatriate former Chief Accountantof the Hotel and was assigned as an assistant to the ChiefAccountant; that the Petitioner was involved in the AccountsDepartment of of the 2nd Respondent; that the Petitioner’sbalance salary for November 1998 was available with the 2ndRespondent for collection; and that the 11th and 12thRespondents took the impugned decision. There was nosuggestion that Robinson employed the Petitioner, or that the11th and 12th Respondents were acting on the instructions of,or on behalf of,. Robinson.
Among the documents produced by the 11th Respondentwere two letters, dated 27. 2. 96 and 11.3. 96, allegedly sent
372
Sri Lanka Law Reports
(200111 Sri L.R.
by the “Personnel Manager" to the Petitioner reminding himto submit the originals of his certificates. These were on aprinted form, headed “Robinson Club Bentota". Those twoletters and the letter of suspension made no referencewhatsoever to “Robinson Hotels GMBH & Co. KG", or to thePetitioner being a Robinson employee.
Article 11 which empowered Robinson “to select andprovide the necessaiy staff is capable of two interpretations:that' the selected persons would thereupon become Robinson'semployees, OR that they would become employees of the 2ndRespondent; or perhaps it gave Robinson an option. Whateverthe correct interpretation of Article 11, there is not a scrap ofevidence which suggests that the Petitioner was in fact engagedas a Robinson employee; or that Robinson (or its agents,representatives, or employees) took any part in the decisionto suspend the Petitioner.
1 hold that, whatever the process by which he was selected,the Petitioner was throughout an employee of the 2ndRespondent, and not of Robinson. Likewise, the 1 l,h and 12thRespondents were also employees – high-ranking employees -of the 2nd Respondent; and it is not suggested that they hadno disciplinary authority over the Petitioner. They signed theletter of suspension as Chief Accountant and General Managerof the 2nd Respondent. The suspension was in law the act ofthe 2nd Respondent, for which the 2nd Respondent alone isliable.
Bowstead (Law of Agency, 15th ed) refers to two relevantprinciples recognized by the Law of Agency :
“An agent may be appointed for the purpose of executingany deed, or doing any other act on behalf of the principal,which the principal might himself execute, make or do;except for the purpose of executing a right, privilege orpower conferred, or of performing a duty imposed, on the
sc
Jayakody v. Sri Lanka Insurance and
Robinson Hotel Co. Lid. and Others (Hernando, J.)
373
principal personalty, the exercise or performance of whichrequires a discretion or special personal skill, or for thepurpose of doing an act which the principal is required,by or pursuant to any statute, to do in person." (Article 6)
“In the absence of other indications, when an agent makesa contract, purporting to act solely on behalf of a disclosedprincipal, whether named or unnamed, he is not liable tothe third party on it. Nor can he sue the third party on it.”(Article 104)
IS THE 2nd RESPONDENT A STATE AGENCY?The 2nd Respondent was owned, as to 80%, by the State -through the ICSL and its successor SLIC; and it was likewisecontrolled by the State, which was assured of a majority onthe Board – through nominee directors of ICSL and SLIC,appointed with the approval of the Minister. The chain ofownership and control may extend indefinitely: e. g. the Statemay set up a corporation which it (in substance) owns andcontrols; that corporation may set up a limited liabilitycompany which it (in substance) owns and controls; and thatcompany in turn may set up another company or other entity… and so on. But however long the chain may be, if ultimatelyit is the State which has effective ownership and control, allthose entities – every link in that chain – are State agencies.
I hold that the 2nd Respondent is a State agency. Even if itwas performing purely commercial functions, it wouldnevertheless be a State agency, albeit a State agencyperforming commercial functions.
It is pertinent to mention that according to the 11thRespondent’s affidavit the Petitioner was suspended becauseof alleged irregularities in regard to the encashment of foreigncurrency under a permit issued by the Central Bank to the2nd Respondent.
374
Sri Lanka Law Reports
/2001J 1 Sri LR.
IS APPOINTMENT, DISCIPLINARY CONTROL ETC OFEMPLOYEES OF STATE AND STATE AGENCIESEXECUTIVE OR ADMINISTRATIVE ACTION?
The jurisdiction of this Court under Article 126 is confinedto “executive or administrative” action. What did theConstitution contemplate by that phrase? Did it intend toinclude appointment, transfer, dismissed, and disciplinarycontrol?
The answer to that question is given by Article 55(5). Thatwas the very provision which sought to restrict judicial reviewof orders and decisions in regard to the appointment (etc) ofpublic officers. However, the ouster of jurisdiction wasexpressly made subject to the fundamental rights jurisdictionof this Court under Article 126. If such appointment (etc) didnot constitute “executive or administrative action”, thatreservation would have been meaningless. That reservationhas meaning only if such appointment (etc) is “executive oradministrative action”. Article 55(5) confirms that theConstitution so intended.
I must stress that Article 55(5) preserves the jurisdictionof this Court in respect of all public officers – regardless of thenature of their functions. It cannot be said in relation to apublic officer that his functions relate to commercial orbusiness activities, and that therefore his appointment (orhis transfer, dismissal or disciplinary control) is not "executiveor administrative action”. So
So much for public officers. What about employees of Statecorporations, agencies and instrumentalities – employees whoare not regarded as falling within the Constitutional definitionof “public officers”? It is pertinent to cite the observations ofIsmail, J. In Samson v. Sri Lankan Airlines, where he referredwith approval to an Indian Supreme Court decision (dealingwith the definition of “the State” as including “other authoritiesunder the control of the Government of India”) :
sc
Jayakody v. Sri Lanka Insurance and
Robinson Hotel Co. Ltd, and Others (Fernando. J.)
375
. if agencies and instrumentalities of the State werenot held to be “other authorities”, it would be the easiestthing for the government to assign to a plurality ofcorporations almost every State business or economicactivity and thereby cheat the people of thefundamental rights guaranteed to them.”
The power of appointment (etc) of employees of the Stateis intrinsically executive or administrative in nature. Thus inHewamdllikage v. People’s Bank,(2>, I held (with Amerasinghe,J. and Goonewardene,/J. agreeing) that “making anappointment is an act which is intrinsically administrative innature”. If the State decides to carry on, directly, somefunction, business or economic activity, the person employedfor that purpose would enjoy the protection of the fundamentalrights jurisdiction of this Court, whatever the nature of thatfunction or activity: because their appointment (etc) wouldbe “executive or administrative action". If the State decidesinstead to carry on that same function, business or activityindirectly, through a State corporation or agency, it couldhardly be said that the appointment (etc) of the employeesneeded would not be “executive or administrative action” :that would be to cheat such employees of their fundamentalrights. I hold that the appointment, transfer, dismissal, anddisciplinary control of employees of the State and Stateagencies constitute “executive or administrative action” withinthe meaning of Article 126.
WHAT IF ROBINSON HAD SUSPENDED THE PETITIONER?
The Respondents claimed that it was Robinson whichemployed, and thereafter suspended, the Petitioner. Relyingon the undisputed fact that Robinson was not a State agency,they contended that the suspension was therefore not“executive or administrative” action (citing Samson v. SriLankan Airlines Ltd.).
It is necessary to clarify the status of Robinson vis-a-visthe 2nd Respondent. The effect of the Management Agreement
376
Sri Lanka Law Reports
12001] 1 Sri L.R.
was to confer authority on Robinson to manage the Hotel, onbehalf of the 2nd Respondent, on agreed terms and conditions.Accordingly, Robinson was no more than the 2nd Respondent’sagent. Furthermore, there was no agreement that Hotel staffwould automatically become Robinson employees. Indeed,insofar as the Petitioner is concerned, the facts demonstratethat he was an employee of the 2nd Respondent. Even ifRobinson had been involved in the selection of the Petitioner(as to which there is no evidence), the contractual relationshipof employer and employee was only between the 2ndRespondent and the Petitioner (cf. Carson Cumberbatch & Co.v. Nandasena
The impugned letter of suspension was not issued byRobinson, but by the 11th and 12th Respondents. Even if Iwere to assume that they acted on the instructions of Robinson(as to which, too, there is no evidence), and that therefore thesuspension was by Robinson, nevertheless Robinson was nomore than the 2nd Respondent’s agent, and the principles ofthe Law of Agency (cited above) would apply : Robinson’s actwas in law the act of the 2nd Respondent.
Had the 2nd Respondent directly suspended the Petitioner,that would have constituted “executive or administrative”action. If the 2nd Respondent had suspended the Petitioner,indirectly, i. e. by acting through an admittedly “private”agent, would the suspension cease to be “executive oradministrative” – although it was still, in law, the act of the2nd Respondent? I think not. I hold that action in relation tothe appointment, transfer, dismissal and disciplinary controlof the 2nd Respondent’s employees was “executive oradministrative" action – and it made no difference whethersuch action was taken by the 2nd Respondent itself directly,or indirectly through its officers, agents and servants. Theliabilities which direct action would attract, could not beevaded by resorting to indirect action.
sc
Jayakody v. Sri Lanka Insurance and
Robinson Hotel Co. Ltd. and Others (Fernando, J.)
377
It is relevant to illustrate the grave consequences ofholding otherwise. A State department may engage a privateagency to provide security services, or the Police may contractwith a detective agency to conduct investigations into offences,or a State corporation may employ a managing agent to recruitstaff. If such agencies arrest, torture or detain citizens, ordeny equal treatment to them, contrary to Articles 11, 12 or13 can the State or State corporation claim that those are notits own acts, but are the acts of a private body and thereforenot “executive or administrative”? The State, and Statecorporations and agencies must necessarily act throughofficers and agents, and the acts of such officers and agentsare the acts of the State, for which it is liable. As Bowsteadsays (p 16) :
“the ruling notion of agency law may be said to be thatthe acts of a person (the agent) authorised or to be treatedas authorised by another are in certain circumstances tobe treated as having the same legal effect as if they hadbeen done by that other (the principal). This is sometimesexpressed by the idea that the agent’s acts are those ofthe principal: qui Jacit per alium facit per se.”
That is true both in the sphere of contract and public
law.
I hold that even if Robinson had suspended, or directedthe suspension of the Petitioner, such suspension would bethe act of the 2nd Respondent, and therefore “executive oradministrative” action.
Does the judgment in Samson v. Sri Lankan Airlines
Ltd. affect that question? That judgment dealt with twoapplications. The petitioner Samson :
“sought a declaration that the letter dated 17. 11. 98 ofthe Chief Executive Officer of Sri Lankan Airlines Limited
378
Sri Lanka Law Reports
1200111 SriLR.
terminating his services is null and void and that it is inviolation of his fundamental right to equality under Article12(1)." (emphasis added)
The petitioner in the other case made a similar complaintabout a transfer order dated 23. 11. 98.
The Court upheld the preliminary objection taken bySri Lankan Airlines that “the impugned acts of its management. . . do not constitute "executive or administrative action”.
The background to that case may be summarized thus.Air Lanka Ltd. had been held, in Rajaratne u. Air Lanka,141 tobe a State agency or instrumentality. It was not suggestedthat that decision was wrong. In 1998 changes were effectedin regard to the ownership and management of the Company,by means of a share sale agreement and a shareholders’agreement, between the Government of Sri Lanka, theCompany, and Emirates, an airline company incorporated inthe Emirate of Dubai. The Government retained a majorityshareholding as well as a majority on the Board of Directors,while Emirates became the holder of 26% of the issued sharecapital. (In 1999, Air Lanka changed its name to Sri LankanAirlines Ltd.)
Ismail, J. held that in consequence of these changes theGovernment had ceased to have effective control of the Boardof Directors, and that :
“the management, power, control, authority over andresponsibility for the business and affairs of the Companyis vested with Emirates for the implementation of anapproved business plan . . . and certain managementdecisions (are) vested exclusively in (Emirates) . . .(emphasis added)
He held that the decisions complained of in that case“(remained) that of Emirates and the Government has no
sc
Jayakody v. Sri Lanka Insurance and
Robinson Hotel Co. Ltd. and Others (Fernando. J.)
379
control over the Board of Directors even if such decisions needthe prior consent of the Board”; that Emirates was not aGovernment agency or instrumentality; that the Governmenthad lost the “deep and pervasive” control exercised by it overthe Company earlier; and that the action taken by Sri LankanAirlines cannot now be designated “executive or administrativeaction”.
It is clear that in both cases the petitioners were employeesof Sri Lankan Airlines Ltd. There is no suggestion that theywere ever employees of Emirates. The Company havingappointed Emirates as the managers of the business andaffairs of the Company, Emirates probably did have the powerto dismiss, transfer, and exercise disciplinary control over theemployees of the Company. But the judgment did not considerwhether Emirates was acting as the agent of the Companyand whether its acts (in regard to dismissal, etc,) were theacts of the Company. If the Company itself had dismissed onepetitioner, and transferred the other, clearly the Company’sactions would have been “executive or administrative". Thefact that, instead of doing so directly, the Company did soindirectly through its agent made no difference. When thisaspect of the matter arose in the course of the oral argumentin the present case, my brother Gunasekera, J. (Who was oneof the members of the bench in Samson's case) observed thatthat aspect of the matter had not been brought to theirattention in the course of the oral arguments in that case.
I must add, further, that (as the judgment states) thepetitioner Samson had been dismissed by the “Chief ExecutiveOfficer of Sri Lankan Airlines Limited”. In fact, therefore,dismissal was not by Emirates or its officers or employees.The act of the Chief Executive Officer of the Company was theact of the Company.
In Samson v. Sri Lankan Airlines Ltd. the Court did nothave the occasion to consider whether Emirates was merely
380
Sri Lanka Law Reports
1200111 SriLR.
the agent of the Company (having regard to the Memorandumand Articles of Association, and the relevant ShareholdersAgreement), and that decision is in any event distinguishable.
ORDERI hold that the 2nd Respondent is a State agency: that theexercise by the 2nd Respondent of the power of appointment,transfer, dismissal and disciplinary control of its employeesinvolved “executive or administrative action”: that thePetitioner was an employee of the 2nd Respondent; that hissuspension was by officers of the 2nd Respondent; that theiract was in law the act of the 2nd Respondent, and therefore“executive or administrative” in character; that Robinson wasan agent of the 2nd Respondent; and that even on theassumption that suspension was by Robinson (or its officers),the act of Robinson was in law the act of the 2nd Respondent,and was therefore “executive or administrative” in character.
I therefore overrule the preliminary objection, with costsin a sum of Rs 5,000 payable by the 2nd Respondent to thePetitioner.
The matter will be resumed, for hearing on the merits, ona date next term to be fixed by the Registrar.
WADUGODAPITIYA, J. I agree.GUNASEKERA, J.- I agree.
Preliminary objection overruled.