023-SLLR-SLLR-1999-V-1-JINADASA-v.-ASSOCIATED-NEWSPAPERS-OF-CEYLON-LTD.pdf
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Jinadasa v. Associated Newspapers of Ceylon Ltd.
197
JINADASA
v.ASSOCIATED NEWSPAPERS OFCEYLON LTD.
SUPREME COURTAMERASINGHE, J.,
PERERA, J.,
BANDARANAYAKE, J.
S.C. FR NO. 296/98OCTOBER 27. 1998.
NOVEMBER 12. 1998.
Fundamental rights – Article 12 (1) – Services terminated – Lost trust andconfidence – no rational explanation.
The petitioner was appointed Additional Secretary with effect from 03. 05. 1988and upon the retirement of the Secretary he was appointed Acting Secretary andSecretary in 1989. On 18. 08. 1995 he was appointed as 'General Manager'. On31. 03. 97 he was placed in the Special Grade, and his salary had been increasedwith effect from 01. 01. 1998. However, on 06. 04. 1998, his services – as thesecretary – were terminated on the alleged ground that the Board had lost trustand confidence in the petitioner.
Held:
Evidence does not show any reason to conclude that the decision by theBoard on 06. 04. 1998 was warranted. On the other hand there were lettersproduced in evidence that his work was commended by the presentChairman and the former Chairman.
The grounds for the action of the respondents cannot be regarded as thejustification for the respondents decision for they took place before theincrease of the petitioner's salary on 01. 01. 1998. Past charges were eithermistaken or lapses forgiven and therefore they were irrelevant when therespondent decided to terminate the petitioner's services.
Per Amerasinghe, J.
“The decision to terminate the petitioner's services was in my view thereforepurely dependent on the will and pleasure of the 1st respondent andcapricious and not restrained by considerations of impartial even-handeddealing."
APPLICATION under Article 126 of the Constitution.
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Romesh de Silva, PC, with Palitha Kumarasinghe and Sugath Caldera forpetitioner.
D. Wickremanayake with R. A. L Kumarawickrema for 1st-7th respondents.
Cur. adv. vult.
February 3, 1999.
AMERASINGHE, J.
The first respondent is the Associated Newspapers of Ceylon Ltd.Although in their statement of objections the respondents submittedthat the first respondent was "not a 'State instrument' whose actionsconstitute executive or administrative action within the meaning ofArticle 126 of the Constitution", learned counsel for the respondentsstated that he was not taking up that objection and would rest hiscase on the facts relating to the alleged discrimination which wereclaimed by the petitioner to have violated his fundamental rightsguaranteed by Articles 12 and 14 (1) (g) of the Constitution.
The secretary of the first respondent, was on extended service andon his way out. His post had to be filled, and when it was advertised,the petitioner was appointed Additional Secretary with effect from 03May, 1988. Upon the retirement of the Secretary, the petitioner wasappointed Acting Secretary and Secretary in 1989. In their statementof objections, the respondents stated: "the petitioner was selected foremployment by the 1st respondent because he was the only candidatewho turned up for the interview. He was recruited not on his meritsbut because the 1st respondent had no other choice".
The petitioner had a Bachelor's Degree in Economics (Special) fromthe University of Ceylon; he was an Attorney-at-law; a registeredcompany secretary under the Companies Act; the holder of a Master'sDegree in International Relations from the University of Colombo anda Certificate in Diplomatic Training from the Bandaranaike Instituteof Diplomatic Training; and he had been an external consultant inManagement for the National Institute of Business Management,Manager/Legal at the State Trading Corporation, Company Secretary/
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Legal Advisor, St. Anthony's Group of Companies. His work as AssistantSecretary of the Sri Lanka National Salt Corporation had been highlycommended by the Chairman of that Corporation. Documents FR1and FR2 produced by the respondents establish that only one of fivecandidates summoned for the interview "turned up". According to thosedocuments some person wished to see the petitioner, which hepresumably did and satisfied himself about the petitioner's suitability.There is a comment that "His spelling is not very good", but in anotherminute it is stated: "He seems good material, and will surely improveon his spelling".
The choice of the petitioner for appointment was, it seems,appropriate. On the 18th of August, 1995, the petitioner was, in termsof a "notice" issued under the hand of the Director/(Operationsand Legal) appointed General Manager, (see also the letter of theDirector/Operations and Legal dated the 18th of August, 1995).
On the 31st of March, 1997, the Chairman of the first respondentinformed the petitioner that the "Management" had decided to placehim in the "Special Grade" at a specified salary point "with effect from01st January, 1997". .
On the 5th of January, 1998, the Chief Executive Officer of thefirst respondent informed the petitioner, identifying him as "GeneralManager/Secretary", (vide P9) that the petitioner's salary had beenincreased with effect from the 01st of January, 1998.
I believe one's salary is ordinarily increased and a person isupgraded if an employee's work and conduct are, upon a properevaluation based upon laid down procedures, proved to be satisfactory.
According to the respondents, the Board of Directors of the 1strespondent decided at its Board meeting held on the 6th of April, 1998,to terminate the services of the petitioner as the secretary of the 1strespondent (vide P97), because, it was alleged, that the Board hadlost trust and confidence in the petitioner and were wary aboutallowing such an important post to be held by the petitioner. It wassaid that "the 1st respondent is a commercial establishment which
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cannot function with the petitioner as the company secretary who hasfailed to secure the trust and confidence of the Board of Directors.
It would appear that the only grounds for the alleged lack of trustand confidence were based on the following matters:
It is alleged that the petitioner was warned on the 2nd of August,1990, by the then General Manager for leaving the office withoutinforming anyone of his whereabouts. (7R9). There was an endto that matter, for subsequently on the 16th of August, 1995,the petitioner was appointed General Manager and on the 1stof January, 1997, he was promoted to the Special Grade inExecutive Group A and in January, 1998, he was given anincreased salary. The 1990 episode could in the circumstanceshardly be regarded a ground for a lack of trust and confidencein April, 1998, considering the intervening events.
It is alleged that on the 19th of April, 1991, the Director/FinancialConsultant alleged negligence and irresponsibility on the partof the petitioner. On the 26th of April, 1991, the petitionerexplained the circumstances of the matters on which the alle-gations of negligence and irresponsibility were based. It wouldappear that the Director/Financial Consultant was not satisfiedwith the petitioner's explanation and felt it necessary to referthe matter to the Board for disciplinary action. On the 23rd ofMay, 1991, the petitioner discussed the matter with the Director/Financial Consultant, offered him his apologies, requested himto explain matters to the Chairman and there was an end tothat matter for, as we have seen, the petitioner was subsequentlymade General Manager, promoted to the Special Grade andgiven salary increases.
The next matter relates to delay in taking action on a letterfrom the Labour Secretariat. The letter had been received at1400 hours on the 26th of August, 1991, by the GeneralAdministration Department and minuted to the petitioner who,however, did not recollect seeing the letter before he went onleave the next day. The letter related to a matter that was not
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within his purview. Nevertheless it was found that: "he shouldhave cleared his tray of all correspondence before ieaving officeon the 26th . . It was recommended that the petitioner "bereprimanded for his lack of responsibility". That was the endof that matter for, as we have seen the petitioner wassubsequently made General Manager, promoted to the specialgrade and given salary increases.
There was the Abeyratne case. It is alleged that on the 11thof July, 1996, the petitioner had been warned for misconduct.The matter arose from the interdiction of Mr. Anura Abeyratne.The petitioner's fault, it seems, was that he had instructedthe Manager/Personnel & Administration to fix a formal inquiryon the 28th of June, 1996, without reference to the Director/Operations & Legal and that the Inquiring Officer selected hadbeen from the Panel appointed by the previous management".It is said that: "the Board directed that the General Manager/Secretary, Mr. B. A. Jinadasa should be warned that he shouldrefrain from repeating such actions in the future". There isnothing to show why the petitioner was in any way guilty ofmisconduct by fixing an inquiry without reference to the Director/Operations and Legal or by referring the matter :to the Panelapproved by the previous management. It might also be mentionedthat although the case in the Labour Tribunal instituted byMr. Abeyratne was settled and he was reinstated at the instanceof the Chairman, yet there was nothing to show misconduct onthe part of the petitioner. It is pertinent to reproduce theobservations of Mr. Percy Wickremasekera, Director/LegalConsultant of the first respondent to its Chairman at that time,on his decision to settle Abeyratne's case: “I understand thatyou have called the Legal Officer and given her orders regardingthe Labour Tribunal case filed by Mr. Anura Abeyratne. Sinceyou are not the Director Legal nor even a person with anyknowledge or understanding of law or legal matters your actionis all the more damaging to the company's interests. Regardingthis case there is a decision of the Board and all you haveto do is to abide by the decision and not act in an indecenthaste. You must also know and understand that professionals
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such as lawyers cannot be ordered to act against their con-science. Therefore this is to request you not to interfere withthe work of the Legal Division as you are neither competentnor knowledgeable to do so". In any event, the Abeyratne matterwas at an end and the petitioner was subsequently promotedto the special grade and given salary increases.
The next matter related to a complaint in February, 1997, byMr. Anthony M. E. Fernando who had alleged that at an in-terview for the selection of a freelance advertising canvasserthe petitioner had asked Fernando whether he was trying tointimidate the panel by forwarding his application through theDeputy Minister of Media and Information and whetherhe hoped to obtain the support of the Deputy Minister’s peopleto sustain his canvassing programme (7R34).
It was also alleged that: "without the prior knowledge andauthority of the company and although he is not a journalist,Mr. Jinadasa had been a member of the Sri Lanka delegationto the Indian Journalists Association Congress held in Indiarecently" (7R15).
Although the Board had decided on the 22nd of January, 1997,to place the petitioner on the special grade and to increase his salary,on the 19th of March, 1997, the Board decided not to implement thedecision in view of the matters referred to at (5) and (6) above. Itwas recorded in the Board minutes that: "The Directors agreed thatgreater integrity is expected from a person holding the position ofGeneral Manager such as Mr. Jinadasa". In their statement ofobjections, the respondents stated that the petitioner's promotion andsalary increment were withheld for misconduct. In fact the halting ofthe promotion and the withholding of the salary increment were onlytemporary, for the Board, noting that the issue regarding the complaintby Fernando had been “settled" and that the newspaper which carriedan article alleging that the petitioner had been a member of thedelegation to India had been corrected by the newspaper, implementedthe decision of the Board dated the 22nd of January, 1997 (P138A).
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What was it that had happened since the petitioner's salary asGeneral Manager/Secretary had been increased on the 1st of January,1998, that warranted a conclusion that the petitioner's conduct leadto any loss of faith or confidence in the petitioner or want of relianceon what he said or did? What was there to doubt the credence ofwhat the petitioner had stated in his advice on various matters? Inmy view, the evidence does not show any reason to conclude thatthe decision of the Board on the 6th of April, 1998, was warranted.On the other hand, there were letters produced in evidencefrom former Chairman of the first respondent as well as from thepresent Chairman, commending the work of the petitioner.
The grounds for the action of the respondents as set out inparagraph 13 of the respondents' statement of objections cannot beregarded as the justification for the respondents' decision, for theyamong other things, took place before the increase of the petitioner'ssalary as General Manager/Secretary on 1st of January, 1998. Pastcharges were either mistaken or lapses forgiven and they weretherefore irrelevant when the respondents decided to terminate thepetitioner's services.
I can find no rational explanation for the conduct of the respondentsin terminating the petitioner's services as secretary of the AssociatedNewspapers of Ceylon Limited. Nor are there any reasonable groundsfor reversing its earlier decision to designate the petitioner as GeneralManager/Secretary. The decision to terminate the petitioner's serviceswas in my view therefore purely dependent on the will and pleasureof the 1st respondent and capricious and not restrained by consid-erations of impartial, even-handed dealing. I therefore declare that thepetitioner's rights guaranteed by Article 12 (1) of the Constitution havebeen violated by the termination of his services.
However, there is in my view no evidence to support the allegationthat Article 12 (2) of the Constitution has been violated. As pointedout by the respondents, the petitioner's appointment as GeneralManager/Secretary on the 16th of August, 1995, his promotion to ahigher grade on the 1st of January, 1997, and his salary increment
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on the 1st of January, 1998, took place under the present government.Moreover, the present Chairman had given him a letter of commen-dation on the 27th of November, 1997.
The decision of the Board of Directors of the first respondent datedthe 6th of April, 1998, terminating the appointment of the petitioneras secretary of the Associated Newspapers of Ceylon Ltd. is set aside.
I make order that the petitioner shall continue to be designatedas General Manager/Secretary although it was a matter within thecompetence of the Board of the first respondent for the sake of goodmanagement to decide whether there should additionally be a ChiefExecutive Officer and to allocate such duties to the Chief ExecutiveOfficer and to the General Manager/Secretary as the Board deemedfit.
The first respondent is ordered to pay the petitioner a sum ofRs. 75,000 as compensation and Rs. 25,000 as costs.
Before I part with this judgment, I should like to refer to the factthat the Brief in this case, as in many others, ran into many hundredsof pages. There was no orderly arrangement of the documents, and,therefore, it was necessary for much time to be taken to locatedocuments cited by counsel during the hearing. In such a situation,the adverse effect on the efforts of counsel in presenting his or hercase and the difficulty for judges in following submissions are obvious.I would respectfully recommend that due consideration be given tothe making of appropriate rules with regard to the preparation ofjudges' briefs prior to argument.
PERERA, J. – I agree.
BAND ARAN AYAKE, J. – I agree.
Relief granted.