KEGALLE PLANTATIONS LTD.,V.
SILVA AND OTHERS
COURT OF APPEALSENANAYAKA, J.
C. A. 686/94TEU/A 102/93JULY 06, 1995.
Termination of Employment of Workmen (Special Provisions) Act No. 45 of1971 – Inquiry – Finality clause – Applicability of S22 of the InterpretationOrdinance (amendment) – Reliefs granted by Commissioner – Final andConclusive – S5, 6(A) 6(B) – Restrictive Interpretation – Reasons – ShouldReasons be given – Natural Justice.
The 1st Respondent was employed by the JEDB; the Petitioner companytook over the functions of the JEDB. The 1st Respondent reached the ageof Retirement – 55 yrs – on 14.1.93. The Petitioner on 25.1.1993 gave Noticethat the 1st Respondent would be retired from service with effect from1.8.93. The 1st Respondent made an application to the 2nd Respondentand complained that the said act of retirement of service was in violation ofthe T.E. Act No. 45 of 1971.
After inquiry the impugned order was made by the 2nd Respondent.
Held:Finality does not attach only to acts done in terms of S.2(1) only. Thepowers conferred on the Commissioner are interwoven and interlinkedwith the other provisions of the TE Act.
It is a condition precedent that the Employer cannot terminate the servicesof a workman of the Scheduled employment firstly without the prior consentin writing of the workman and if the workman had given prior consent inwriting the Commissioner is functus, otherwise the Employer would obtainthe prior written approval of the Commissioner and where theCommissioner gives approval he could grant any particular terms andconditions relating to the payment of gratuity or compensation for thetermination of such employment. The said reliefs are granted at theabsolute discretion of the Commissioner.
The Commissioner should give reasons for its decisions.
PerSenanayake, J.'The present trend which is a rubric running throughout public law is thatthose who give administrative decisions where it involves the public whoserights are affected should give reasons for its decision.The actions of thePublic Officer should be transparent and they cannot make Blank Orders.In my view it is implicit in the requirement of a fair hearing to give reasonsfor its decisions, the failure to do so amount to a failure to be manifestlyseen to be doing justice.’
Per Senanayake, J.‘I am of the view, unless the party can discover the reasoning behind thedecision he may be unable to say whether it is reviewable or not, so hemay be deprived of the protection of the faw. It’s my view that it is a healthydiscipline for all who exercise power over others to give reasons, thoughthe statute does not spell out that reasons should be given.’
Proviso to S22 of the Interpretation Act clearly envisage a situation ofthis nature where there is a breach of natural justice.
AN APPLICATION for a Writ of Certiorari.
Cases referred to:M. P. Industries v. Union of India AIR 1966 S.C. 67
Express Newspapers (Wage Board) AIR 1958 SC 578.
Paddy-field v. Minister of Agriculture 1968 AC P 997.
R. Lancashire Country Council, exparte Hyuddleston – (1968) 2 AllER 941 at 945.
R. v. 14 (London West) Legal Aid Area Committee ex parte Bunting1974 – Times 4.
R. v. Sykes 1875 1 QBD 52.
D. C. Felician Silva v. M/s. Aztee Industries Ltd., and Mr. S.
Weerakoon in CA 260/93 CAM 8.2.1995.
’ 8. H. J. H. Perera v. H. C. Ebert, Deputy Commissioner of Co-operative,AMM Amarasinghe and Kolonnawa MPCS CA 460/84 CAM 02.04.93.
Breen v. Amalgamated Engineering Union and Others – WLR02.04.1971 at 742.
Doody R v. Secretary of State for the Home Department ex. p. Doody1993 3WLR 154
Gomin Dayasiri with M. Wickramasinghe for Petitioner.
V. W. Kularatne with Ms. Amanda Ratnayake for 1st and 4th Respondents.Adrian Pereira, SC. for 2nd and 3rd Respondents.
Cur. adv. vult.
August 28, 1995.
W. SENANAYAKE, J.
The Petitioner filed, this application for a mandate in the nature ofa Writ of Certiorari to quash the order P12 dated 22.08.94 made by the2nd Respondent.
The relevant facts briefly are as follows: The Petitioner was anincorporated Company which took over the functions to carry on thebusiness of the parts of the Janatha Estate Development Board. ThePetitioner was subject to the directions and control of the PlantationsRestructuring Unit of the Ministry of Finance inter-alia in all mattersconcerning the management of the said Estate R. P. K. ManagementServices (Private) Limited and was appointed by the Petitioner tomanage its business in terms of the Management Agreement P2. Theemployees of the Janatha Estate Development Board were deemed tobe employees of the Petitioner on the same terms and conditions ofthe contracts of service as they had with the Janatha EstateDevelopment Board. The 1st Respondent was employed by the saidJanatha Estate Development Board in terms of contract of employmentdated 15.12.1977 P3 where in Paragraph 9 of the said contract ofemployment provided the age of retirement of the 1 st Respondent tobe 55 years. The Petitioner relied on the documents P4 and P5 datedrespectively 07.09.92 and 23.12.92 where the retiring age to be 55years except in cases where the letter of appointment of the employeein question explicitly indicated that the retirement age is higher than55 years. Extension beyond the retirement age were to be grantedsolely at the discretion of the Management.
The 1st Respondent reached the age of 55 years on 14th January1993. The Petitioner by letter dated 25.01.1993 marked P7 informedthat as he had reached the age of 55 years on 14.01.93, he was givennotice that he would be retired from service with effect from 01.08.93.The 1st Respondent made an application to the 2nd Respondentcomplaining that the said act of retirement of service was in violation oftheTermination of Employment of workmen (Special Provisions) ActNo. 45 of 1971 (hereinafter referred to as T.E. Act) The 3rd Respondenton the direction of the 2nd Respondent proceeded to inquire into theapplication. The 4th Respondent a Registered Trade Union appearedfor the 1 st Respondent. After inquiry the impugned order P12 was madeby the 2nd Respondent.
The learned Counsel for the Petitioner’s first submission was thatthe finality clause in reference to Section 2(6) only attaches to Section2 and it cannot be extended to any other provisions of the T.E. Act. Hisposition was that the wording of the provisions of 2(b) only relates to adecision made by the Commissioner under the Section 2(1) (2) ‘a’ to‘e’ are matters that makes the decision of the 2nd Respondent theCommissioner final and conclusive and cannot be called in questionby way of writ or otherwise in any Court.
In my view it most apposite to examine Section 2 and thesubsections of the T.E. Act.
Section 2(1) reads as follows: “No Employer shall terminate thescheduled employment of any workman without
the prior consent in writing of the workman or
the prior written approval of the Commissioner And subsection(2) grants the power to the Commissioner.
(a) approval may be granted or refused on application In thatbehalf made by such employer.
The Commissioner may in his absolute discretion grant orrefuse such approval.
The Commissioner shall grant or refuse such approval within3 months from the date of the receipt of application.
The Commissioner shall give notice in writing of his discretionon the application to both the Employer and the workman.”
In my view the most vital provision is (c) which reads as follows“The Commissioner may in his absolute discretion decide the termsand conditions, subject to which his approval should be granted,including any particular terms and conditions relating to the paymentof by such employer to the workman of a gratuity compensation for thetermination of such employment.”
This subsection spells out the extensive relief that could be grantedby the Commissioner and any of the reliefs that are granted are finaland conclusive. I am unable to agree with the submission of the learnedCounsel that finality attaches only to the acts done in terms of theprovisions of Section 2(1). One cannot take the Sections to be inwatertight compartments in my view the powers conferred on theCommissioner are interwoven and interlinked with the other provisionsof the T.E. Act. It is a condition precedent that the Employer cannotterminate the services of a workman of the scheduled employmentfirstly without the prior consent in writing of the workman and if theworkman had given prior consent in writing the Commissioner is functus.Otherwise the Employer should obtain the prior written approval of theCommissioner and where the Commissioner gives approval he couldgrant any particular terms and conditions relating to the payment ofgratuity or compensation for the termination of such employment. Thesaid reliefs are granted at the absolute discretion of the Commissioner.One cannot dissociate the provisions of Section 5 and Sections 6-Aand 6-B of the T.E. Act. In my view finality attaches not only to Section2 and its Subsections. Such a restrictive interpretation would be doingviolence to the Act. In my view Section 2 and its Subsections areinterlinked and interwoven with the other Section of the Act. I am of theview that his first submission is not tenable in law.
His second submission is that the Commissioner had failed to givereasons for its decision of the order. There is some force to this
submission.This Court had held in number of decisions that theCommissioner should give reasons for its decisions.
The learned Counsel for the Respondent referred to the Judgmentof this Court in C.A. 703/90 the minutes of 16.09.92 where the Courttook the view that a failure to give reasons for_an administrative orderdid not make the order null and void. I am now of the view that thedecision in that Case is not the correct exposition of the law. The presenttrend which is a rubric running throughout public law that those whogives Administrative decision where it involves the public whose rightsare affected should give reasons for its decisions. The action of thepublic officer should be transparent and they cannot make Blank Orders.As Lord Denning says “that the giving of reasons is one of thefundamentals of good administration.” In my view it is implicit in therequirement of a fair hearing to give reasons for its decision. The presenttrend is to give reasons and that a failure to do so amount to a failure tobe manifestly seen to be doing justice. I am of the view that it is only inspecial circumstances that reasons should be withheld otherwise astatutory body or a domestic Tribunal should give reasons to itsdecision.The T.E. Act is silent and the Commissioner being a creatureof the statute who is performing a public function it is not only desirablebut necessary to give reasons for its decisions.
In my view the attitude of the 2nd Respondent the Commissionerstating that he is not bound to give reasons for its decision is untenablein law. Perhaps he must be following the advice given by Lord Mansfieldto a Governor of a West Indian Island who also sits as a Judge “Be ofgood cheer – take my advice and you will be reckoned a greatJudge as well as a great Commander-In-Chief. Nothing is moreeasy only hear both sides patiently – then consider what you thinkjustice requires and decide accordingly. But never give yourreasons, – for your Judgment will probably be right but yourreasons will certainly be wrong.”
Lord Mansfield’s words are a denial of any system of adjudicationbased on rules except in a system of palm tree justice.
The present trend is to give reasons and it has veared off from theold concept of not adducing reasons by Administrative bodies for theirdecisions. In U.S.A. Section 8 (6) of the Administrative Procedure Actenjoins that all administrative decisions should be accompanied by>findings and conclusions as well as the reasons therefore on all thematerial issues of law, facts or discretion giving of reasons is the onlysafeguard against arbitrary decisions. In France the FrenchAdministrative laws has made the reasons for the order mandatory.
In the case of M. P. Industries v. Union of lndiam Justice K SubbaRao observed:
“In the context of a Welfare State, administrative tribunals havecome to stay – But arbitrariness – in their functioning destroys theconcept of a Welfare State itself – The least that a tribunal can do is todisclose its mind. The compulsion of disclosure guaranteesconsideration. The condition to give reasons introduces clarity andexcludes or at any rate minimises arbitrariness. It gives satisfaction tothe party against whom the order is made.”
Reasoned Orders are the sine qua non of administrative justice.Even if the statutes are silent that the decisions should contain reasonsit is in the interest of the Public Officer to give reasons for its ordersotherwise his action would lack Transparency and amount toarbitrariness.
In my view the law cannot be static it must be dynamic and progresswith the social changes in society otherwise we would be bound to anarchaic legal system that existed in the Victorian Era.
In the Case of Express Newspapers (Wage Boards N. H.Bhagawati, J. observed
“It was no doubt not incumbent on the Wage Board to giveany reasons for its decisions. Prudence should however havedictated that it gave reasons which it ultimately reachedbecause if it had done so we would have been spared thenecessity of trying to probe into its mind and find out anyparticular circumstances received due consideration and itshands in arriving at its decisions.” In the said case the Courtheld even if no reasons were given them was sufficientindication of the Wage Board Chairman’s mind in the notewhich he made on 30.04.56 which is contemporaneous recordexplaining the reasons for the decision of the majority.
In the Case of Paddyfield v. Minister of Agriculture the Ministerwhose decision (given without stating reasons) was challenged,furnished abatement of reasons to Court. There reasons were foundto be bad in law and the Petitioners were granted relief by an order ofMandamus. In appeal, it was contended by the State that since thereis no requirement to give reasons, the reasons that were furnished tocourt cannot be attacked on the ground of an error of law. Lord Reid (atpage 1032), Lord Pearce (at page 1053,1054) Lord Up John (at page1061) made clear observations that if there is prima facie material thatthe Minister has acted contrary, to the intentions of Parliament in failingto take steps as required by law and no reasons are furnished to courtby the Minister in his defence, the court will infer that the Minister hadno good reasons for the impugned action, in deciding the matter. Thusif the Commissioner fails to disclose his reasons to the court exercisingjudicial review, and inference may well be drawn that the impugneddecision is ultra vires and relief granted on this basis. In this regard Ihave to also cite the observations made by Sir John Donaldson MR inthe case of R. v. Lancashire Country
Counsel for the Council also contended that it may be anundesirable practice to give full, or perhaps any reasons toevery applicant who is refused a discretionary grant, if onlybecause this would be likely to lead to endless furtherarguments without giving the applicant either satisfaction ora grant. So be it. But in my judgment the position is quitedifferent if and when the applicant can satisfy a judge of thepublic law court that the facts disclosed by her are sufficientto entitle her to apply for judicial review of the decision.Thenit becomes the duty of the Respondent to make full and fairdisclosure. Notwithstanding that the courts have for centuriesexercised a limited supervisory jurisdiction by means of theprerogative writs, the wider remedy of judical review and theevolution of what is in effect, a specialist administrative orpublic law court is a post-war development. This developmenthad created a new relationship between the courts and those
who derive their authority from the public law, one ofpartnership based on a common aim, namely themaintenance of the highest standards of publicadministration.”
In the Case of R. v. 14 (London West) Legal Aid Area Committee ex
The Committees decision was ‘Your appeal against thedecision of the local committee has been dismissed’. TheDivisional Court said that this complied with statutoryregulations which did not require reasons to be given, butcommented that this was unsatisfactory for applicants forlegal aid to have to rely on such generalised statements.Elementary justice required that they give particularisedreasons. The law Society was invited to reconsider theregulations.
In the case of R. v. Syke&6) a statute provided that “noapplication for a certificate… in respect of a licence to sell… shall be refused, except upon one or more of the followinggrounds…” Four grounds were then listed; if the applicationwas refused on the fourth ground, reasons had to be given inwriting. The justices did not state the ground on which theyrejected the application, and the Divisional Court issuedmandamus to compel them to hear and determine inaccordance with law.
QUAIN, J. observed I am of the same opinion. “The legislaturehas expressly enacted that such a licence as this shall berefused on four grounds only. The Justices, by refusing alicence sub silentio, and refusing to state on which of thegrounds they acted, might practically evade the enactmentaltogether, and refuse licences arbitrarily and on othergrounds than the four mentioned in the section.They cannotbe said to have “heard and determined” the application untilthey have stated on which ground their fourth ground, thejustices are bound to specify to the Applicant in writing thegrounds of their decision; and this right he would practicallybe deprived of if the justices were at liberty to refuse thelicence without saying on which of the four grounds it wasrefused. The Mandamus must go to the justices to hear anddetermine the application.’’
This Court has held in D. C. Felician Silva, v. M/s. Aztec IndustriesLtd., and Mr. S. Weerakoon,(7) and H. J. H. Perera v. H. C. C. Ebert,Deputy Commissioner of Co-operative, A. M. M. Amarasinghe andKolonnawa Multi-purpose Society, that there is an obligation on thepart of the 2nd Respondent to Commissioner to give reasons for itsdetermination. In the Case of Breen v. Amalgamated Engineering UnionAnd Others<9)
Lord Denning in his dissenting Judgment had held thatreasons ought to be given as a case depend. He observedat Page 750 The giving of reasons is one of the fundamentalsof good administration. Again take Padfield’s case (1968)
A.C. 997. The dairy farmers had no right to have theircomplaint referred to a committee of investigation, but theyhad a legitimate expectation that it would be. The Housemade it clear that if the Minister rejected their request withoutreasons, the court might infer that he had no good reason:and, that if he gave a bad reason, it might vitiate his decision.”
I n the recent case of Doody, R. v. Secretary of State for the HomeDepartment ex p Dooc/yi0) H. L. Doody, Pierson, Smart and Pegg wereconvicted murderers sentenced to life imprisonment. The HomeSecretary’s adopted practice in relation to mandatory lifers invokedConsultation with the trial Judge and the Lord Chief Justice (the Judges)in setting a penettariff of minimum custody. The prisoners applied forJudicial Review seeking declarations that the Home Secretary was not
. not entitled to depart from the Judges recommendations (2). notentitled to delegate his tariff setting powers to a junior minister and (3)obliged to afford a lifer (a), disclosure of the Judges recommendationsand comments (b). an opportunity to make representations and reasonsfor departing from those recommendations. The House of Lord heldthat declarations (1). and (2). should be refused but granted the reliefunder (3). being required by the minimum standard of fairness.
The trend now appears to be reasons to be a “sui quanorf for a fairhearing and to be within the ambit of natural justice.”
In view of the above circumstances, I am of the view, unless theparty can discover the reasoning behind the decision he may be unableto say whether it is reviewable or not so he may be deprived of theprotection of the law. It is my view that it is a healthy discipline for allwho exercise power over others to give reasons, though the Statutedoes not spell out that reasons should be given.
The learned Counsel for the Respondent relied on that the findingsof the 2nd Respondent cannot be canvassed in court. The proviso toSection 22 of the Interpretation Act clearly envisage a situation of thisnature where there is a breach of natural justice. There is a continuingmomentum in administrative law towards transparency of decisionmaking. It is my considered view that Public Officers should give reasonsfor their decisions.
In the circumstances, I allow the application in terms of the prayer(a) of the Petitioner and quash the said order marked P12.1 refrainfrom making an order for costs.
KEGALLE PLANTATIONS LTD. SILVA AND OTHERS