JAYAWARDENA AND ANOTHER v. PEGASUS HOTELS OF CEYLON LTD , AND OTHERS

007-SLLR-SLLR-2004-V-2-JAYAWARDENA-AND-ANOTHER-v.-PEGASUS-HOTELS-OF-CEYLON-LTD-AND-OTHERS.pdf


Jayawardena and another v Pegasus Hotels of Ceylon Ltd.,
(Saleem Marsoof. J. P/CA)
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JAYAWARDENA AND ANOTHERvPEGASUS HOTELS OF CEYLON LTD., AND OTHERSCOURT OF APPEAL
SALEEM MARSOOF PC, (P/CA) AND
SRIPAVAN, J.
C.A, 1871/2003JUNE 8, 2004JULY 5 AND 7, 2004
Termination of Employment of WorKmen, (Special Provisions) Act, No. 45 of1971, sections 2(2) (a-d) and 12 -Application to terminate services approvedsubject to payment of compensation – Commissioner acting aibitrarily-Computing compensation – Order unreasonable – No proper inquiry – Doeswrit lie? – Applicability of the preclusive clause read with section 22 ofInterpretation Ordinance, No 10 of 1972 – Ceiling on Housing Property Law,No. 1 of 1972, section 39(3) compared-Finality of order – Rules of Court ofAppeal, 1990, Rule 3 – Applicability – Who is a necessary party?
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The 1st petitioner (employee) and the 2nd petitioner (Union) sought to quashthe order made by the Commissioner giving approval to terminate the servicesof 36 employees subject to payment of compensation. It was contended thatthe Commissioner failed to apply the law correctly in computing compensation,acted arbitrarily, did not make “all inquiries” and the order was unreasonable.
The 8th respondent opposed the application and contended that all theemployees are not named, especially those 30 employees who have accept-ed compensation, and that the record has not been tendered to court.
Held :
Per Saleem Marsoof, J. P/CA.
‘There is no doubt that the 30 employees who have accepted compensationwill be affected but it appears that the majority of them were members of the2nd petitioner Union, which is entitled to represent them.”
There is not only failure to produce the “record” on the face of whichthe petitioners claim there is an error of law, but also non-compliancewith Rule 3(1 )(a), which justifies dismissal in limine.
The preclusive clause in section 2(2)(f) has to be interpreted in the lightof section 22 of the Interpretation Ordinance.
Per Saleem Marsoof, J. P/CA.
‘The petitioner has not shown that the impugned decision is ex-facienot within the power conferred with the Commissioner or that there hasbeen any failure to conform to the rules of natural justice or any manda-tory provision of any law which is a condition precedent to the makingof the award.
Application for writs of certiorari and mandamus.
Cases referred to:
Sukumaran v The Maharaja Organisation and two others CA No.1684/2003 – of 30.08.2004.
Ramasamy v Ceylon State Mortgage Bank – 78 NLR 510
Karunaratne v Commissioner of Co-operative Development – 79(2)NLR 193
Abeyadeera and 162 others v Dr. Stanley Wijesundara – ViceChancellor, University of Colombo and another- (1983) 2 Sri LR 267
Ravaya Publishers and others v Wijedasa Rajapakse, Chairman SriLanka Press Council and others – (2001) 3 Sri LR 213
Prabath Varma v State of Utara Pradesh – Al R (1983) SC 167
Hewagam Korale East Multipurpose Co-operative Society Ltd.,Hanwellav Hemawathie Perera and another – (1986) 1 CALR 535
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Jayawardena and another v Pegasus Hotels of Ceylon Ltd.,
and others fSaleem Marsoof. J. P/CA);
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Virakesari Ltd. v Fernando – 66 NLR 145
Baldwin & Francis Ltd., v Patents Appeal Tribunal and others – (1959)2 A11 ER 433
Wijerama v Paul – 76 NLR.241
Jayaweera v Asst: Commissioner of Agrarian Services, Ratnapura andanother – (1996) 2 SRI LR 70.
Brown & Co.Ltd., and others v Ratnayake, Arbitrator and others -(1994) 3 SRI LR 91
Blanca Diamonds (Pvt)Ltd., v Wilfred Van Else and others – (1997) 1SRI LR 360 at 362
Alphonso Appuhamy v Hettiarachchi – 77 NLR 131
Manickam v Permanent Secretary, Ministry of Defence and ExternalAffairs – 62 NLR 204
Samalanka Ltd., v Weerakoon, Commissioner of Labour and others-(1994) 1 SRI LR 405
Moosajees Ltd., v Arthur and others – (2001) 2 SRI LR 401
Wijewardena v People’s Bank, SL Appeal 3/80 Scm 20.05.1981.
Perera v Lokuge – (1996) 2 Sri LR 282
Sittamparanathan v Premaratne – (1996) 2 SRI LR 202
Edmund v D.S. Fernando – (1995) 1 SRI LR 407
Pure Beverages Company Executive Officers Association vCommissioner of Labour – (2001) 2 SRI LR 258 (Distinguished)
Anisminic Ltd., v Foreign Compensation Commission – (1969) AC 147
Abeywickrema v Pathirana and others – (1986) 1 SRI LR 120
N.D.R. Cassie Chetty for 1st and 2nd petitioners.
M.A. Sumarithiran with Vijula Arulanatham for 1st and 2nd respondents.
B.S. Mahendran State Counsel for 3rd respondent.
Cur.adv.vult
September 23, 2004
SALEEM MARSOOF, P.C.(P/CA)The 1st petitioner to this application admittedly was an employ-ee of the 1st respondent, Pegasus Hotels of Ceylon Ltd which ismanaged by the 2nd respondent, Carsons Management Services(Pvt) Ltd. The 2nd petitioner is a registered trade union which rep-
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resented the 1st petitioner and 35 other workmen of the 1 st respon-dent company at an inquiry conducted on the directions of the 3rdrespondent, Commissioner of Labour with respect to the applica-tion dated 4th July 2002 (P1) made by the 2nd respondent in termsof section 2(a) of the Termination of Employment of Workmen(Special Provisions) Act, No. 45 of 1971, as subsequently amend- ked. It is common ground, that the 2nd respondent, CarsonsManagement Services (Pvt) Ltd, managed the business of the 1strespondent Pegasus Hotels of Ceylon Ltd, and also made theaforesaid application for the approval of the 3rd respondent for thetermination of the scheduled employment of 60 employees of the1st respondent including the 1st petitioner. The said applicationwas supported by the affidavit of Deannath Jehan Kulatunge, aDirector of Carsons Management Services (Pvt) Ltd, a copy ofwhich affidavit has been produced marked P2. It appears from thesaid affidavit that the termination of the services of the workmen in 2Cquestion was sought on the ground that the business of PegasusHotel of Ceylon Ltd had run at a loss mainly by reason of thedestruction of the prime beach frontage of the Pegasus Reef Hoteldue to sea erosion. The said affidavit also states that the problemwas aggravated by the condition of the approach road to the Hoteland its surroundings. The accumulated loss of the Pegasus Hotelsof Ceylon Ltd as at 30th June 2002 amounted to Rs. 69,684,246which necessitated restructuring of the operations of the hotel. Thetermination of services .of the said employees of the Pegasus ReefHotel was sought to be justified by the 1st and 2nd respondents on 30the need to “downsize its operations to about 50 rooms”.
The 3rd respondent noticed the 1st petitioner and the 59 otheremployees to appear before him for an inquiry. The inquiry into thesaid application was conducted by the Assistant Commissioner ofLabour (Termination Unit) M.N.S. Fernando. The 2nd petitioner ini-tially represented most of the affected workmen at the inquiry, buttowards the end of the inquiry only 36 employees, including the 1stpetitioner, were interested in the proceedings as the others hadbeen either re-employed by the 2nd respondent or had died,retired from service or were dismissed for misconduct. In the 40course of the said inquiry a further affidavit from an Accountantemployed by the 2nd respondent, Chaminda Shalike Karunasena
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was tendered marked P4, and the said Karunasena gave evidenceregarding the financial position of the 1 st respondent. Although asstated in paragraph 6 of the 3rd respondent’s affidavit filed in theseproceedings, the said Accountant was “one among many other wit-nesses” called by the petitioners, only a copy of that part of the pro-ceedings containing the evidence given by the said Accountantwas produced marked P4A with the petition and affidavit of the peti-tioners. The entire record of proceedings containing all the evi-dence led at the inquiry and the recommendations made by thesaid M.N.S. Fernando to the 3rd respondent were not made avail-able to Court by any of the parties. By the letter dated 31st July2003 marked P8 the 3rd respondent gave his approval to the 1stand 2nd respondents for the termination of the services of theaforesaid 36 employees with effect from 15th August 2003 subjectto payment of compensation. Annexed to the said letter was a sep-arate schedule marked P8A indicating the compensation payableto the individual employees. The quantum of compensation wascomputed at the rate of 3 months salary for every completed yearof service subject to a ceiling of 50 months salary. The total com-pensation package exceeded Rs.3 Million. The 3rd respondent hasstated in his order his reasons for the said-approval, one of whichwas the loss caused by sea erosion to the business of the 1strespondent.
The learned Counsel for the 1 st and 2nd petitioners submitted thatthe petitioners are entitled to a mandate in the nature of certiorari toquash the impugned decision of the 3rd respondent contained in theletter marked P8 read with the schedule marked P8A, and an orderin the nature of mandamus to compel the 3rd respondent to use thepowers conferred by section 12 of the Termination of Employment ofWorkmen (Special Provisions) Act, and summon all witnesses andobtain all documents as may be necessary in order to arrive at a prop-er and reasonable decision and apply the law and the principlesembodied in the said Act. The petitioners have alleged in their petitionand affidavit that the evidence given by .the said AccountantKarunasena and the Financial Statements produced at the saidinquiry marked P5 did not bear out what the aforesaid affidavits ofKulatunge and Karunasena had stated, and the 3rd respondent failedto draw the necessary inferences from the testimony of the
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Accountant of the 2nd respondent. Learned Counsel for the petition-ers submitted that the document marked P8 shows that the 3rdrespondent has failed to apply the law correctly in computing the com-pensation for the termination of employment of the employees affect-ed. He submitted that evidence collected did not support the decisionof the 3rd respondent and the decision is one, which no reasonableperson could have made on the basis of the evidence that was led atthe inquiry held by the 3rd respondent. The main submission of thepetitioners is that the 3rd respondent has acted arbitrarily in arriving atthe quantum of compensation payable to petitioners without inquiring 90into the prospects of future employment of the workman and the lossthat would be sustained by the 1st petitioner and the 35 otheremployees.
Learned Counsel for the petitioners has further submitted that the3rd respondent failed or refused to summon as witnesses any of theagents who managed the hotel up to the 30th September 2002, espe-cially John Keels Hotel Management Ltd, whose contract was termi-nated on 30th September 2002 while the inquiry was in progress. Ithas also been contended on behalf of the petitioners that the 3rdrespondent failed or refused to summon as witness an officer from 100Carson Cumberbatch & Co.Ltd, which is the owner and directing andcontrolling mind of the 1 st respondent, especially after it was broughtto the notice of the Commissioner that the said Carson Cumberbatch& Co Ltd had expressed its intention or desire to sell or dispose of theHotel and in fact had taken steps to sell its controlling interest. Thelearned counsel for the petitioners also complained that the 2ndrespondent failed or refused to ascertain whether in fact and in law thesaid Carson Cumberbatch & Co.Ltd was the employer of the 1st peti-tioner and the other employees whose services were sought to be ter-minated. In this context it is necessary to observe that the 110Commissioner of Labour is not bound in the course of an inquiryunder the Termination of Employment (Special Provisions) Act to"make all such inquiries” like an Arbitrator to whom a dispute isreferred under section 4(1) of the Industrial Disputes Act whose rolewas examined by this Court recently in Sukumaran v The MaharajaOrganisation and two others.^) The Commissioner of Labour has toact on the evidence presented to him in the course of the inquiry. The
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grounds urged by the petitioners in their petition in support of the reliefprayed for may be briefly summarized as fbllows:-
The alleged failure of the 3rd respondent “to apply the law cor-rectly in computing the compensation” (Paragraph 14 of the'petition);
. ‘The 3rd respondent has acted arbitrarily in arriving at the com-
pensation payablewithout inquiring into the 1st petitioner’s
prospects of future employment, the loss that would be sus-tained by termination and other circumstances” (Paragraph
16 of the petition);
The alleged failure of “the evidence collected” to support thedecision of the 3rd respondent (Paragraph 15 of the petition);
The decision of the 3rd respondent “is one which no reasonableperson could have made on the basis of the evidence adduced”(Paragraph 15 of the Petition); and
The alleged failure of the 3rd respondent to “exercise his dis-cretion in determining whether the application dated 4.7.2002made by the 2nd respondent was in good faith or genuine”.(Paragraph 14 of the Petition).
Learned State Counsel appearing for the 3rd respondentCommissioner of Labour emphasized that as 30 of the 36 employ-ees mentioned in P8A have without protest withdrawn the com-pensation awarded to them, a fact which at least the 2nd petitionerwas bound to have disclosed in view of the discretionary nature ofthe relief prayed for by the petitioners, the petitioners are not enti-tled to maintain this application as the said 30 employees are notnamed as respondents to this application. Reference was made tothe decisions in Ramasamy v Ceylon State Mortgage Bankt),Karunaratne v Commissioner of Co-operative Development) andAbayadeera and 162 others v Dr. Stanley Wijeysundera, ViceChancellor, University of Colombo and another^) for the propositionthat the non-citing of necessary parties was a fatal irregularity. Infact in the later decision of Ravaya Publishers and other vWijedasa Rajapaksha, Chairman, Sri Lanka Press Council andothers (5) J.A.N. de Silva J. observed at 216 that-
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“In the content of writ applications, a necessary party is onewithout whom no order can be effectively made. A proper partyis one in whose absence an effective order can be made butwhose presence is necessary to a complete and final decision
on the question involved in the proceedingsIt has also
been held that persons vitally affected by the writ petition areall necessary parties. If their number is very large, some ofthem could be made respondents in a representative capacity(Vide Prabodh Verma v State of Uttara Pradesh(6) also seeEncyclopedia of Writ Law by B.M. Bakshi)”.
. There is no doubt that the 30 employees who have accepted thecompensation will be vitally affected by the decision in these pro-ceedings as the petitioners have prayed for the quashing of theorder marked P8 and P8A whereby the compensation was award-ed, but it appears that the majority of them were members of the2nd respondent trade union, which is entitled to represent them.Vide, Hewagam Korale East Multi-Purpose Co-operative SocietyLtd, Hanwella v H.Hemawathie Perera and another P).
Learned Counsel for 1st and 2nd respondents submitted that asthe petition and affidavit of the petitioners do not refer to anygrounds that nullify the order made by the 3rd respondent, the peti-tioners cannot canvass the findings of the 3rd respondent unlessthey establish that the impugned order is vitiated by error of law onthe face of the record. He further submitted that the petitionershave failed to place before this Court the impugned “record” in itsentirety. Learned Counsel referred to the decision in Virakesari Ltdv Fernando^ in which Weerasooriya, SPJ., having observed atpage 150 of the judgement that the order of an inferior tribunal “isliable to be quashed by writ of certiorari tor an error of law appear-ing on the face of the record” went on to quote with approval thedicta of Lord Denning in Baldwin & Francis Ltd. v Patents AppealTribunal and others (9> “there should be included in the record, notonly the formal order, but all those documents which appear there-from to be the basis of the decision – that on which it is grounded.”In that case, Weerasooriya SPJ., went on to hold that “the evidencetaken .at the inquiry held by the Authorized Officer is a documentforming part of the record, for the award on the first point in disputerefers to, and purports to be made on the basis of, such evidence”.
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QAJayawardena and another v Pegasus Hotels of Ceylon Ltd.,
and others (Sateem Marsoof, J. P/CA)
Learned Counsel for the 1st and 2nd respondents also referred tothe decision of the Court of Appeal in Wijerama v PauA10) in whichFernando, J. commented at page 255 that "if absence of evidenceto support the decision constitutes error of law, we find no little dif-ficulty in imagining how error of law on that ground can ever beestablished if the supervising court cannot look at the evidence,even where it is available.” Learned Counsel submitted that a sim-ilar position has arisen in this case too due to the failure of the peti-tioners to produce the original or a duly certified copy of the entirerecord of proceedings before the 3rd respondent.200
It must be mentioned that learned Counsel for the 1 st and 2ndrespondents did not rely on Rule 3 (1) (a) of the Court of Appeal(Appellate Procedure) Rules, 1990 which requires that every appli-cation made to the Court of Appeal for prerogative relief underArticle 140 of the Constitution (as in the instant case) shall be “byway of petition, together with an affidavit in support of the aver-ments therein, and shall be accompanied by the originals of docu-ments material to such application (or duly certified copies thereof)in the form of exhibits.” However learned State Counsel appearingfor the 3rd respondent relied heavily on Rule 3(1) (a) of the Court 210of Appeal (Appellate Procedure) Rules, and referred to the decisionof the Court of Appeal in the case of Jayaweera v Asst.Commissioner of Agrarian Services Ratnapura and Anothei<u) inthe context of an application to quash an order on the ground thatno notice of inquiry had been given, Jayasuriya, J. observed atpages 71 to 72 as follows:-
“If actually no notice was…. served, it was open to the peti-tioner, to file a certified copy of the entire proceedings with thejournal entries with a view to substantiate his assertion so thatthis court would be in a position to exercise its supervisory 220jurisdiction. It appears that the petitioner has with deliberatedesign and ingeniously resorted to the practice of not filingthese exhibits which are necessary for the exercise of super-visory jurisdiction by this court.”
Learned Counsel for the 1st and 2nd petitioners also referred toRule 3(1) (a) of the Court of Appeal (Appellate Procedure) Rules,
1990 and sought to compare it with Rule 3(1) (b) of these Ruleswhich provide that every application by way of revision or restitutio
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in integrum under Article 138 of the Constitution shall be made “inlike manner together with copies of the relevant proceedings 23C.
(including pleadings and documents produced)to which such
application relates.” It was the contention of the learned Counselfor the petitioners that with respect to an application for a mandatein the nature of a prerogative writ only originals or duly certifiedcopies of documents material to such application need to beannexed to the petition and supporting affidavit of the petitioners,and the entire record need not be produced. He also submitted thatP8 was a “speaking order” which can be challenged by itself.
In Brown & Co Ltd and others v Ratnayake, Arbitrator andothers (12) which dealt with Rule 46 of the Supreme Court Rules of 2401978, the forerunner to the Supreme Court Rules quoted above, inthe context of an application for certiorari, a preliminary objectionwas initially taken in the Court of Appeal on the ground that a cer-tified copy of the proceedings had not been filed as required by thesaid Rule. Counsel for the petitioner in that case (as did the learnedCounsel for the petitioners in this case) insisted that certified copiesof documents material to the case had been filed and that theywould stand or fall by those exhibits. The Court took the view thatit would become necessary for the Court to decide whether a par-ticular document was material to the case or not and to decide that 250the court had to enquire into the application as it can be decidedonly in the course of the hearing. However, when the matter wastaken up for argument on the merits, Counsel for the petitioner hadso.ught to refer to contents of proceedings and documents not ten-dered and strenuously opposed by respondents. In those circum-stances, the court dismissed the application for non-compliancewith Rule 46. In affirming the decision of the Court of appeal,Bandaranayake, J. observed as follows at page 102 of the judge-ment-
“In these circumstances the Court below was entitled to refuse 260to proceed further with the application. Appellant’s presentsubmission that he could proceed upon the 10 documents ten-dered is contradicted by the facts and circumstances placedbefore us. The order of dismissal was a proper order that theCourt could fairly have made.”
It has to be observed in this context that it is the view of thisCourt that none of the grounds of challenge taken up by the peti-
SC Jayawardena and another, v Pegasus Hotels of Ceylon Ltd., 49
and others (Saleem Marsoof, J. P/CA)
tioners in their pleadings can be established through the docu-ments they have chosen to place before this Court, and there is notonly a failure to produce the ‘record’ on the face of which the peti-tioners claim there is an error of law but also non-compliance withRule 3(1 )(a) of the Court of Appeal (Appellate Procedure) Rules,1990 which justifies the dismissal of this application in limine. Ashas been emphasized over and over again by our Courts, prerog-ative writs are discretionary remedies which require full disclosureon the part of those seeking to invoke these remedies. AsJayasuriya, J. observed in Blanca Diamonds (Pvt) Ltdv Wilfred VanElse & others (13)-
“In filing the present application for discretionary relief in theCourt of Appeal Registry, the petitioner company was under aduty to disclose (uberrima tides) all material facts to this Courtfor the purpose of this Court arriving at a correct adjudicationof the issues arising upon this application. In the decision inAlponso Appuhamyy Hettiarachchi O4) Justice Pathirana, inan erudite judgement, considered the landmark decisions onthis province in English Law, and cited the decisions which laiddown the principle when that a party is seeking discretionaryrelief from the Court upon an application for a writ of certiorari,he enters into a contractual obligation with the Court when hefiles an application in the registry and in terms of that contrac-tual obligation he is required to disclose uberrima tides anddisclose all material facts fully and frankly to this Court’’
There remains the argument advanced on behalf of the peti-tioners that the impugned order marked P8 is a ‘speaking order'which can be quashed on it being demonstrated that the purportedreason on which it is based is erroneous in law. In V. Manickam vThe Permanent Secretary, Ministry of Defence and External AffairsO5) the Supreme Court held that the order made by the prescribedofficer was a ‘speaking order’ on the face of which appeared theground in support of it. However, as the said ground was bad in law,the Court quashed the order for error of law on the face of therecord. In the instant case, the 3rd respondent has set out in P8several reasons for the decision to allow the application to termi-nate the services of the workmen in question on payment of com-pensation as per schedule in P8A. The main reason for approving
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the application to terminate the services of the workmen, as statedin the said order was the financial crisis faced by the employer onaccount of the business of Pegasus Hotel of Ceylon Ltd running ata loss due to the destruction of the prime beach frontage of thehotel due to sea erosion and the general reduction in tourist arrivals 31cfrom abroad. Learned Counsel for the 1st and 2nd petitioners hasnot been able to demonstrate that the said reasons set out in P8are bad in law.
It is necessary to add that there is a much more fundamentalflaw in the application of the petitioners to this Court. The impugneddecision of the 3rd respondent contained in P8 and P8A was madeunder section 2(2)(a) to (d) of the Termination of Employment ofWorkmen (Special Provision) Act, Section 2(2)(f) of the said Actexpressly provides that-
“Any decision made by the Commissioner under the preceding 320provisions of this subsection shall be final and conclusive, andshall not be called in question whether by way of writ or other-wise:-
in any court, or
in any court, tribunal or other institution established under theIndustrial Dispute Act.”
In view of the fact the petitioners have invoked the jurisdiction ofthis Court by way of a writ application, this Court will prima facie beprecluded from reviewing the decision of the 3rd respondentCommissioner of Labour. However the aforesaid provision of law 330has to be interpreted in the light of section 22 of the InterpretationOrdinance, No. 21 of 1901, as amended by section 2 of Act, No. 18of 1972. Section 22 of the Interpretation Ordinance provides as fol-lows:-
“Where there appears in any enactment, whether passed ormade before or after the commencement of this Ordinance, theexpression “shall not be called in question in any court" or anyother expression of similar import whether or not accompaniedby the words “whether by way of writ or otherwise" in relation toany order, decision, determination, direction or finding which any 340person, authority or tribunal is empowered to make or issue
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under such enactment, no court shall in any proceedings andupon any ground whatsoever, have jurisdiction to pronounceupon the validity or legality of such order, decision, determina-tion, direction or finding, made or issued in the exercise or theapparent exercise of the power conferred on such person,authority or tribunal:
Provided, however, that the preceding provisions of this sectionshall not apply to the Supreme Court or the Court of Appeal, asthe case may be, in the exercise of its powers under Article 140 350of the Constitution of the Republic of Sri Lanka in respect of thefollowing matters, and the following matters only, that is to say-
Where such order, decision, determination, direction or find-ing is ex facie not within the power conferred on such person,authority or tribunal making or issuing such order, decision,determination, direction or finding; and
Where such person, authority or tribunal upon whom thepower to make or issue such order, decision, determination,direction or finding is conferred, is bound to confirm to the rules
of natural justice, or where the compliance with any mandatory 360provisions of any law is a condition precedent to the making orissuing of any such order, decision, determination, direction orfinding, and the Supreme Court or the Court of Appeal, as thecase may be, is satisfied that there has been no conformity withsuch rules of natural justice or no compliance with such manda-tory provisions of such law:
Provided further that the preceding provisions of this section shallnot apply to the Court of Appeal in the exercise of its powers underArticle 141 of the Constitution of the Republic of Sri Lanka to issuemandates in the nature of writs of habeas corpus."370
This provision has been interpreted in several decision of ourCourts, but it would suffice if reference is made to the decision ofthe Supreme Court in Samalanka Ltdv Weerakoon, Commissionerof Labour and others^ and two more recent decisions of the Courtof Appeal. In the Samalanka case, an application was made for awrit of certiorari to quash the decision of the Commissioner ofLabour under section 2(2) of the Termination of Employment ofWorkmen (Special Provisions) Act on the ground that the award of
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15 months gross salary for each workman was unjustified as it wasfixed arbitrarily and no reasons were given. The Supreme Court 380refused to go into the question whether there was any error on theface of the record in view of the finality clause in section 2(2)(e) ofthe Act. Kulatunga, J. observed as follows at pages 411 to 412 ofthe judgement-
“I hold that the inquiry held by the 2nd respondent was undersection 2(2). At the conclusion of the inquiry the 1st respon-dent by his letter dated 22.10.84 approved the termination ofservices with effect from 31.10.1984 subject to the payment ofcompensation, i.n addition to gratuity payable in terms of thelaw. In terms of S. 2(2)(e) such order is made by the 390Commissioner “in his absolute discretion” and section 2(2)(f)provides that such decision “shall be final and conclusive, andshall not be called in question whether by way of writ or other-wise.” In view of this preclusive clause read with section 22 ofthe Interpretation Ordinance the appellant cannot impeach thedecision on the ground of ‘error of law on the face of therecord”.
In Moosajees Ltd v Arthur and others(17> Court of Appeal adopt-ed the same approach in the context of the preclusive clause foundin section 39(3) of the Ceiling on Housing Property Law, No.1 of 4001973 read with section 22 of the Interpretation Ordinance.Upholding the argument that the Court had no jurisdiction to reviewthe order of the Board of Review in the circumstances of that case,J.A.N. de Silva, J. made following pertinent observation at pages105 to 107 of the judgement-
Learned Counsel submitted without conceding that even if thereis an error in the decision of the Board of Review it is an 'intrajurisdictional’ error which precludes judicial review. Generallyspeaking preclusive clauses’are strictly construed and there is apresumption in favour of judicial review. As Professor Wade in 410his book Administrative Law states, there is a firm judicial policyagainst allowing the rule of law to be undermined by weakeningthe power of Court. Our Courts too have adopted this policy. InWjewardena v People's BanM18) Justice Sharvananda (as hewas then) considered the scope of section 22 of theInterpretation Ordinance as amended and stated that “in my
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view section 22 of the Interpretation Ordinance has no applica-tion when the question of jurisdiction to make the impugnedorder is in issue, when the order or determination is outside orin excess of jurisdiction of the tribunal.” However a more liberalview has been expressed in Perera v Lokuge(19) andSittamparanathan v Premaratne (2°) where it had been statedthat mere excess of jurisdiction is not sufficient to succeed butthere must be patent lack of jurisdiction. Again in Edmund v D.S.Fernando <21) the Supreme Court at 413 held as follows “TheCourt of Appeal could have granted the writ only if it was per-missible for that Court to act under the 1st Proviso to section 22
of the Interpretation Ordinance’’ In the instant case it was
not the contention of the Counsel for the petitioner that thedetermination of the Board of Review which was sought to bequashed was “ex facie” not within the power conferred on theBoard of Review under section 39 of the said law nor did thepetitioner contend that the Board of Review failed to conform tothe rules of natural justice.”
•These decisions have to be contrasted with the decision of thiscourt in Pure Beverages Company Executive Officers Associationv Commissioner of Labour (22>. The Pure Beverages Companysought to terminate the services of its employees attached to theKaduwela Factory. The petitioner had come to know that, a DeputyCommissioner of Labour, was inquiring into this matter and assome members of the Petitioners Association were named as per-sons whose employment was to be terminated, the DeputyCommissioner had noticed the Petitioners Association requesting itto participate, if so desired. The petitioner informed the DeputyCommissioner, that its members cannot participate without obtain-ing a legal opinion. However, the Commissioner of Labour hadapproved the termination of the services of all persons including themembers of the Petitioners Association, although the DeputyCommissioner did not recommend the termination of the membersof the Petitioners Association. It was contended on behalf of thePetitioners Association that the said decision is ultra vires and hasbeen made in violation of the principles of natural justice. Therespondent relied inter alia on the preclusive clause in section2(2)(f) of the Termination of Employment of Workmen (Special
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12004] 2 Sri L.R
Provisions) Act Rejecting this defence, Hector Vapa, J. observed atpage 271 to 272 of the judgement that-
“There is one other matter to be considered in this judgment. Thisarises from the submission of learned President’s Counsel for therespondent Company that the decision of the Commissioner isfinal and conclusive having regard to section 2(2)(f) of the 460Termination of Employment of Workmen Act. Learned Counselcontended that the legislature has left the discretion of the
Commissioner outside the jurisdiction of the CourtsHowever
it must be stated here that a decision made by the Commissionerwithout any regard to the available material and in violation ofnatural justice is a decision bad in law. Hence such a decision isin law a nullity and cannot stand. Therefore it is open to a court todeclare such a wrong decision as void. In the case of AnisminicLtd. v Foreign Compensation Commission <23) a majority ofjudges held that the wrong decision of the Commission on what 470they regarded as a “jurisdictional fact” vitiated the decision sincethe tribunal had exceeded its jurisdiction by this wrong decision.
The ouster clause, therefore, was not applicable as there was notrue determination by the tribunal as required by the statute.” Inthe same case at page 170 Lord Reid stated as follows. “If youseek to show that a determination is a nullity, you are not ques-tioning the purported determination – you are maintaining that itdoes not exist as a determination. It is one thing to question adetermination which does exitst: it is quite another thing to saythat there is nothing to be questioned.” Also vide the case of 480Abeywickrama v Pathirana and others (24>. Therefore this argu-ment of learned President’s Counsel has to fail.”
The reaisonirig adopted by Yapa, J. cannot be followed in the pre-sent case as I find that the petitioners have not averred in their petitionand affidavit, nor has their learned Counsel made any submissions tothe effect, that the impugned decision is ex facie not within the powerconferred on the Commissioner of Labour or that there has been anyfailure to conform to the rules of natural justice or any mandatory pro-visions of any law which is a condition precedent to the making of thesaid decision. Accordingly, the preclusive clause in section 2(2)(f) of the 490Termination of Employment of Workmen (Special Provisions) Act hasto be applied in the present case with the consequence that the appli-
CA
Ceylon Petroleum Corporation v Mashood
/Dissanavake. J.)
55
cation for certiorari has to be dismissed. In relation to the applicationfor mandamus all that is necessary to say is that as upon making theimpugned order P8 and P8A the 3rd respondent became functus offi-cio, he cannot be compelled to make any further inquiries. For the fore-going reasons the Court dismisses the application filed by the petition-ers with costs fixed at Rs.5,000/- payable by the 1st petitioner andRs. 12,500/- payable by the 2nd petitioner in equal shares to the 2ndand 3rd respondents.500
SRIPAVAN, J. – I agree.
Application dismissed.