S.L. Gunasekera with Indra Ladduwahetty for petitioner.
Sanjeewa Jayawardane with Priyanthi Gooneratne for 4th respondent.
Uresha de Silva, State Counsel for 1st and 2nd respondents.
Cur. adv. vult.
September 6th, 2004.
SRISKANDARAJAH, J.The petitioner who was the employee of the 4th respondent is 01seeking a mandate in the nature of a writ of certiorari to quash apart of the award of the 3rd respondent dated 11.2.2003 relating tothe determination that the non promotion of the petitioner to thepost of Senior Manager was justified. He is also seeking a mandatein the nature of a writ of mandamus directing the 3rd respondent tomake an award in favour of the petitioner in respect of the dispute 'relating to the non promotion of the petitioner to the post-of SeniorManager. The 1st and 2nd respondents are the Minister of Labourand the Commissioner of Labour respectively and the 3rd 10respondent is an arbitrator who was appointed by the Minister undersection 4 (1) of the Industrial Disputes Act to settle a dispute
20Sri Lanka Law Reports[2004] 3 Sri L.R
between the petitioner and the 4th respondent. The 4th respondentis the Sampath Bank Limited the employer of the petitioner.
The predecessor to the 1st respondent on 7.12.1993 referred adispute between the petitioner and the 4th respondent toarbitration.. The terms of reference contained two disputes. Firstly“whether the non employment of Mr. P.S.W, Kannagara, Manager,Finance and Services, by Sampath Bank Limited, after he soughtthe intervention of the Commissioner of Labour regarding his noppromotion to the grade of Senior Manager of Sampath BankLimited is justified and to what relief he is entitled.” Secondly“Whether the non promotion of Mr. P. S. W. Kannagara, Manager,Finance and Services, Sampath Bank Limited is justified and towhat relief he is entitled.” After leading evidence, documents andwritten submissions were filed before the arbitrator by both partiesand the arbitrator delivered his award on 11.2.2003. The arbitratorin relation to the first dispute held that the termination of thepetitioner’s services was unjustified and awarded the petitionerrelief in a sum of Rs. 2,916,000 as compensation • in lieu ofreinstatement. In relation to the second dispute the Arbitrator heldthat the non promotion of the petitioner was justified and did notgrant any relief to the petitioner. The petitioner accepted thepayment of a sum of Rs. 2,478,600 (excluding tax) from the 4threspondent as compensation in lieu of reinstatement awarded bythe 3rd respondent.
The petitioner filed this application on 25th September 2003seeking writs of certiorari and mandamus. The 4th respondentraised several preliminary objections and submitted that this courtshould uphold the preliminary objection and dismiss the petitioner’sapplication. The preliminary objections are substantial laches, noncompliance with Rule 04 of the Court of Appeal Rules; the gazettenotification of the award not being annexed to the petition, thequestion of non promotion of the petitioner not being a live issue,the relief prayed for being misconceived, futility and acquiescence.
One of the preliminary objections raised by the 4th respondentis that the relief sought by the petitioner to quash a part of theaward to the effect that the non promotion of the petitioner to thepost of the Senior Manager was justified, should not be granted asthe petitioner has ceased to be an employee of the 4th respondent
Kannangara v Minister of Labour and Others
CA(Sriskandaraiah. J.) 21
and the question of his non promotion is not a live issue.
The submission of the petitioner is that the issues of nonpromotion continues to be a live issue in that the petitioner has gotto go through life with the stigma of an award of the arbitrator, whichhe contends is erroneous on the face of the record, holding that hewas not a fit and proper person to be promoted.
At the time of making this application the petitioner had left theservices of the 4th respondent and had accepted the award ofCompensation in lieu of reinstatement. This shows that thepetitioner has abandoned the right to claim reinstatement in the sorespondent bank. Hence the question of non promotion hasbecome, academic.
Relief in relation to academic questions are dealt with in JudicialReview of Administrative Action by de Smith. Woolf & Jowel, 5thEdition, page 746, wherein it is stated;
“The Court regard their primary role as being to resolve existingdisputes between parties where their decisions will have immediateand practical consequences for at least one of the parties. Courtsat the present time are struggling to cope with their existingcaseload and judges naturally take exception as having to do so 7°only arises where the litigants are seeking a declaration. There isusually no question of any other remedy being granted in what willbe described here as a theoretical situation, which will be treatedas including a hypothetical situation, both words being regarded assynonymous.”
The dispute in this instant case has ceased, to be of practicalsignificance and there is no public interest in this issue'as well. Thetext referred to above illustrates that there is no question of grantingany other remedy other than a declaration in an issue of atheoretical nature. This remains the situation even if one of the soparties has the perfectly legitimate reason for seeking clarificationof the legal situation.
Besides the above compelling reason against the grant of writ ofcertiorari and mandamus the petitioner has invoked the jurisdictionof this court after a lapse of six months which could be consideredas substantial laches in certain circumstances.
Sri Lanka Law Reports
[2004] 3 Sri L.R
The petitioner submitted that the period of six months whichelapsed between the date on which the petitioners received theaward and made the application does not, particularly in the contextof this application, constitute a delay inasmuch as the award itselfwas made 9 years and 2 months after the date of reference toarbitration on 7th December 1993 during which period there were,as the brief would indicate extremely voluminousproceedings in which numerous documents were produced. Thus,the petitioner has submitted that he has not been guilty of unduedelay or laches, by taking six months from the date on which herecieved the order to file his application challenging a decisionmade 9 years and 2 months after the commencement ofproceedings by the referrals to arbitration.
The petitioner has further submitted that it is now settled lawthat mere delay would not bar an application for a prerogative writ,and that delay would deprive the petitioner of a remedy by way ofsuch a writ only if such delay could be construed as amounting toa waiver of his rights or if the adverse party was prejudiced andtaken by surprise by reason of such delay. In support of thiscontention the petitioner cited Ramasamyv Ceylon State MortgageBanW) at 514.,
In G.F.R.Samidon v Sirisena Cooray and Others (2) the courtheld that an application for writ should be filed within a reasonabletime. What constitutes reasonable and what constitutes unduedelay will depend on the facts of each case. The significance ofdelay is closely linked to the effect which the result of the courtintervening in proceedings for judicial review can have on thirdparties and the public administration.
In this application the court is requested to consider a decisionmade by the arbitrator on the issue of non' promotion. This issue isstrictly related to service criteria derived by the bank for granting ofpromotions, this criterion, is contained in the document issued on16.3.1993 by the 4th respondent and has been applied by the bankin respect of all personnel whose promotions were effected to thepost of Senior Manager. If this service criterion is revised orintervened by this court, prejudice might be caused not only, to thebank but also to the several personnel who have been promotedon the strength of that criteria and it will substantially affect the right
Kannangara v Minister of Labour and Others
fSriskandaraiah. J.)
of several persons. In these circumstances the delay of over sixmonths could be considered as an undue delay in the absence of.an explanation by the petitioner.
In Singer (Sri Lanka) Ltdv Basheed & Another®) the court held,there was ample opportunity for the respondent to have lodged anappeal from the first order of dismissal of the labour tribunal as he 130had notice of the order a few days after it was made. Instead ofdoing so he had, six months later? invoked the extraordinaryjurisdiction of the Court of Appeal. Although a six month delay is notby itself a ground for refusing relief, the circumstances of this casedid not warrant excusing the delay.
The court in granting prerogative writs have refused relief if thedelay frustrates the remedy, Sarath Hulangamuwa v Siriwardana,Principal, Visaka Vidyalaya, Colombo. 5 and Others (4) is a casewhere an application for a writ of certiorari was sought to quash anorder of refusal to admit a child to school. The court delivering its nojudgment held that certiorari being a discretionary remedy will notbe granted where there was such delay in seeking the remedy asit would frustrate the remedy even if it could be granted as the classhad reached the third term and the child herself was now overage.
Considering the facts and circumstances of this application thecourt upholds the preliminary objections that the issue is not a liveissue and there is substantial delay in filing this application. In thesecircumstances the petitioner is not entitled to seek thediscretionary remedy of this court and therefore the court dismissesthe application of the petitioner without cost.150
MARSOOF PC. J (P/CA) – I agree.
Preliminary objections upheld.
Application dismissed.