039-NLR-NLR-V-66-L.-KULATUNGE-Petitioner-and-THE-BOARD-OF-DIRECTORS-OF-THE-CO-OPERATIVE-WHOLE.pdf
Kulatunge v. The Board of Directors of the Co-operative Wholesale
Establishment
169
1968Present: Sansoni, J., and H. N. G. Fernando, J.It. KULATONGE, Petitioner, and THE BOARD OF DIRECTORSOF THE CO-OPERATIVE WHOLESALE ESTABLISHMENTand another, RespondentsS. C. 326}63—Application for a Mandate in the nature of a Writ ofCertiorari under Section 42 of the Courts Ordinance
Certiorari—Employer and employee—Appointments and dismissals—Dismissal ofpersons holding office at pleasure—Employee of a statutory body■—Right ofemployer to terminate an employee's service without holding an inquiry—Natural justice—Principle of audi alteram partem—Co-operative WholesaleEstablishment Act {Cap. 126), s. 11—Interpretation Ordinance, s. 14 (/).
Where a statutory body is merely given a power to dismiss a member of itsstaff, without any specification of the grounds of dismissal and/or of theprocedure to be followed prior to dismissal, that body is not bound to actjudicially in reaching its decision. In suoh a case, therefore, the dismissedemployee is debarred from obtaining a writ of Certiorari.
“ The principle audi alteram partem must be observed in cases of dismissalonly where the power of dismissal is limited in one of two modes, that is tosay, where the procedure prior to the act of dismissal is prescribed and requiresnotice of the charges and an inquiry, or where the grounds for dismissal arespecified. In this latter instance, the dismissing authority must, beforedeciding that a specified ground of dismissal in fact exists, consider what theofficer concerned has to say in his defence ; in other words, the duty to act in ajudicial manner arises by implication from the specification of the grounds fordismissal. ”
On the 21st March, 1963, the petitioner was appointed to the staff of theCo-operative Wholesale Establishment in terms of section 11 of Act No. 47of 1949 (Cap. 126). The letter of appointment issued to him provided that hisemployment would be terminable on one month’s notice on either side or onpayment of a month’s salary in lieu of notice. On the 22nd June, 1963, theBoard of Directors of the establishment terminated bis employment statingthat it was not possible to continue him in service because he had been foundguilty by the Bribery Commission which made its report in June, 1949. Inthe present application for a writ of certiorari to quash the order of dismissalthe petitioner submitted that the Board acted in breach of the rules of NaturalJustice in that the Board did not afford to the petitioner an opportunity ofdefending himself or of showing cause against his dismissal.
Held, that the Board, in the absence of any express provision in»the statute(Cap. 126) specifying either the grounds of dismissal or the procedure to befollowed prior to a decision to dismiss, had no duty to inform the petitionerof the grounds of his dismissal or to give the petitioner an opportunity ofbeing heard, or to act judicially in reaching its decision.
LX VI—8
B 1084S— 1,855(7/64)
170
H. N. G. FERNANDO, J.—Kulatunge v. The Board of Directors of
the Co-operative Wholesale Establishment
Application for a writ of certiorari against the Board of Directors• and General Manager of the Co-operative Wholesale Establishment.
M. Tiruchelvam, Q.G., with B. J. Fernando, for the Petitioner.
H. L. de Silva, Crown Counsel, for the Respondents.
Cur. adv. vult.
December 2, 1963. H. N. G. Fernando, J.—
The Petitioner was on 21st March 1963, appointed to the staff of theCo-operative Wholesale Establishment constituted under Act No. 47of 1949 (Cap. 126). On the 22nd June 1963, the Board of Directorsof the Establishment wrote to the Petitioner informing him that hisappointment (as Security Officer in the Establishment) i3 terminatedwith effect from the same date. In this letter, the Petitioner was informedthat it was not possible to continue him in service because he had beenfound guilty by the Bribery Commission, meaning thereby the KeunemanBribery Commission which made its Report in June 1949.
The present application is for a mandate in the nature of a Writ ofCertiorari quashing the order of 25th June terminating the Petitioner’semployment. In asking for this order the Petitioner submits inter alia,that the Board of Directors of the C. W. E. was aware before theyappointed him in March 1963 of his previous history and also that theorder of dismissal was not made bona fide by the Board, but was dictatedby directions given by the Minister of Agriculture, Food & Co-operativesupon representations made to the latter by a Member of Parliament.The legal ground of the petition is that the Board acted in breach of therules of Natural Justice in that the Board did not afford to the Petitioneran opportunity of defending himself or of showing cause against hisdismissal. The Board does not now aver that such an opportunity wasin fact afforded to the Petitioner.
At the argument, Counsel for the Petitioner relied heavily on the recentdecision in the case of Linus Silva v. University Council of the VidyodayaUniversity et al.1 Section 18 of the Vidyodaya University and the Vidya-lankara University Act No. 45 of 1958 empowered the Council of eachUniversity, “ to suspend or dismiss any officer or teacher oh the groundsof incapacity or conduct which, in the opinion of not less than two-thirdsof the members of the Council, render him unfit to be an officer or teacherof the University. ”
T. S. Fernando j., in considering the question whether the Councilis required to act judicially, pointed out that, “ that question mustultimately rest on the construction of the relevant words of the StatuteFor present purposes it is sufficient for me to observe that he refers to
* {1961) 64 N. L. B. 104.
H. N. CL i'ERNAlsTDO, J.-—Kulatunge v. The Board of Lirectots of
the Co-operative Wholesale Establishment
i7i
several English and Ceylon decisions upon statutes, the language ofwhich require certain facts to be established before the statutoryauthority may make administrative orders, and he held that when theUniversity Council is given the power of dismissal of a teacher “ on thegrounds of incapacity or conduct which renders him unfit ” that powercan be exercised only where incapacity or misconduct exists, whateverbe the extent of that incapacity or misconduct. “ Although ” he said,“ the Council is the judge of the extent of the incapacity or misconduct,in deciding whether incapacity or misconduct exists, the Council isrequired to act not administratively but judicially The decisionis not authority for the proposition that in a case where a statutory bodyis merely given a power to dismiss, without any specification of thegrounds of dismissal and/or of the procedure to be followed prior todismissal, the body would be bound to act judicially in reaching itsdecision. And that precisely is the situation in the present case. Sofar as Cap. 126 affects the Petitioner the only provision in the Act isthat in Section 11 :—“ Every appointment to the staff of the Boardshall be made by the Board. ” There is no provision as to dismissal of aperson in the position of the Petitioner, and if any statutory provision doesapply it is to be found in the Interpretation Ordinance (section 14 (f))which declares that the power to appoint shall include the powerto dismiss. The letter of appointment issued to the Petitioner providesthat his employment will be terminable on one month’s notice on eitherside or on payment of a month’s salary in lieu of notice. The letterof termination was in conformity with this condition.
In my opinion the mere fact that a person is an employee of a statutorybody does not per se have the consequence that his employment will begoverned by conditions different from those which obtain in an ordinarycontract of employment between master and servant, or that as acondition precedent to his dismissal the employer will be held by theCourts to be bound to follow any procedure involving the holding of aninquiry or the opportunity to the employee to be heard. As I read it,the judgment in the case of Linus Silva v. University Council of theVidyodaya University decided only that when the statute specifies thegrounds of dismissal, the employing authority had the duty to act judi-cially, i.e. with observance of the principles of Natural Justice, in reachingits decision that the grounds are established in a particular case.
The principles of the English law on this matter have been muchclarified in a recent decision of the House of Lords in the case of Ridgev. Baldwin1.
That case concerned the dismissal from office of a Chief Constable bya watch committee which had power by statute to “dismiss anyborough Constable whom they think negligent in the discharge of hisduty or otherwise unfit for the same ”. The judgment of Lord Reid isof great interest because of the analysis which it contains of the different
H1963) 2A.E. B. 66.
172 H. N. G. FERNANDO, J.—Kulaiunge v. The Board of Directors of
the Co-operative Wholesale Establishment
classes of cases in which the principle audi alteram partem has beenapplied. The first class dealt with are cases of dismissal and this classis shown to have 3 subdivisions :—
The pure case of master and servant, where (in the words of Lord
Reid) the contract can be terminated “ at any time and forany reason or for none ”, and where the only remedy wouldbe damages for breach of contract if there is termination notwarranted by the contract. In such cases there is no questionof a need to hear the servant in his defence, and the principleaudi alteram partem does not apply.
The case of an office held at pleasure in which it has always been
held that such an officer has no right to be heard before he isdismissed, this because the person having power of dismissalis not bound to disclose his reasons.
The case of dismissal from an office where there must be something
against a man to warrant his dismissal. It is in this case thatthe principle of audi alteram partem applies.
In considering the third category mentioned above, Lord Reidexamines a series of decisions concerning dismissal.
Ex parte Ramshay1 was one in which the Lord Chancellor wasempowered by statute to dismiss a County Court Judge “ if he shouldthink fit to remove on the ground of inability or misbehaviour ” and itwas held that this power of removal “ was only on the implied conditionprescribed by the principles of eternal justice ”.
In Osgood v. Nelson 2, there was statutory power for the Corporation ofthe City of London to dismiss the clerk to the Sheriff’s Court “ in caseof inability or misbehaviour or for any other cause which may appearreasonable”. It was held that there arose a duty before exercising thepower of dismissal to give the officer an opportunity of knowing thecharges and of the evidence in support of them and of producing suchevidence as he desired to produce.
Lord Reid refers also to the case of Fisher v. Jackson3 where the powerto remove the master of an endowed school depended on inefficiencyor failing to set a good example, and where it was held that he mustfirst be afforded an opportunity of being heard.
In Ridge v. Baldwin, Lord Morris was also of the opinion (at page 107)that if the Police authority in the exercise of powers given them bythe statute contemplated dismissing the appellant on the ground ofneglect of duty, they would have been under obligation to give himan opportunity to be heard and would have had to consider anythinghe had to say :—“ I cannot think that the dismissal of the appellant
1 (1852) 18 Q. B. 173.* (1872) 5. B. L. 638.
8 (1891) 2 Chancery D. 84.
H. N. G. FERNANDO, J.—Kulatunge v. The Board of Directors of 173
the Co-operative Wholesale Establishment
can be regarded as an executive or administrative act if based on neglectof duty : before it has been decided that there has been neglect of duly it isprerequisite that the question should be considered in a judicial spirit. Inorder to give the appellant an opportunity to defend himself against acharge of neglect of duty he would have to be told what the alleged neglectof duty was.” These several references to “ Neglect of duty ”, whichis the ground for dismissal specified in the statute, satisfy me that the' need for hearing the appellant arose because the ground for dismissalwas specified in the statute. Lord Hodson (at page 114) expressedhimself to the same effect:—“ The matter which to my mind is relevantin this case, is that where the power to be exercised involves a chargeagainst the person to be dismissed, by that I mean a charge of misconduct,the principles of Natural Justice have to be observed before the poweris exercised.” I should add that the decision in Ridge v. Baldwin isbased also on certain regulations made under the Police Act of 1919which require a special procedure (which involved an inquiry) to befollowed before the dismissal of Police Officers, and that one ground forholding in favour of the dismissed Chief Constable was the fact thatthe prescribed procedure was not followed.
It seems perfectly clear from the judgment in Ridge v. Baldwinand from the cases relied upon by Lord Reid in particular, that theprinciple audi alteram partem must be observed in cases of dismissal, onlywhere the power of dismissal is limited in one of two modes, that is tosay, where the procedure prior to the act of dismissal is prescribed andrequires notice of the charges and an inquiry, or where the grounds fordismissal are specified. In this latter instance, the dismissing authoritymust, before deciding that a specified ground of dismissal in fact exists,consider what the officer concerned has to say in his defence ; in otherwords, the duty to act in a judicial manner arises by implication fromthe specification of the grounds for ‘dismissal.
t
Neither of the two modes of limitation just mentioned are specifiedin the Statute now under consideration (Cap. 126), and hence the presentcase does not fall within the third sub-division of cases of dismissal inregard to which the principle audi alteram partem applies. It maywell be that we have here the simple case of master and servant andnot one of an “ officer But even if the petitioner, by virtue of hisappointment under a statutory power, can claim to hold an “ office”,his case falls within the second sub-division mentioned by Lord Reidin which category of cases the principle does not apply. “ I entirelyaccept the reasoning of the Lords Justices (the Court of Appeal) thatif a statute gives an unfettered right to dismiss at pleasure without more,there is an end of the matter ” (Lord Hodson in Ridge v. Baldwin atp. 112). For reasons which I am about to state, the Board of the C. W. E.had at the least the right to dismiss the petitioner by virtue of provisionin section 14 (/) of the Interpretation Ordinance, and that provision gavethe Board an unfettered right to dismiss.
2*—B 19343 (64/7)
174
H. 1ST. G. FERNANDO, J.—Kulatunge v. The Board of Directors of
the Go-operative Wholesale Establishment
.. In dealing with the claes of cases relating to the removal of persons.holding office at pleasure, Lord Reid refers not only to decisions affecting■Public Officers who in English Law held office “ during pleasure ” in,.the strict and well understood sense of that expression. He mentions.also the case of B. v. Governors of Darlington School1 as a leading caseon the matter. In that case the Charter of a school empowered thegovernors of the school, according to their sound discretion, to removea, master appointed to the school. It was held both in the Queen’s Bench■and in the Exchequer Chamber on appeal that the discretion to removecan be exercised without summons or hearing and although no charge-is exhibited. Both Courts went even further than this ; for they heldthat by-laws made by the governors, which provided for a charge to be•framed and furnished before removal, were void as being contrary to.the-discretion conferred by the Charter. It will be seen therefore that■in the view of Lord Reid a provision which confers a power of removal■simpliciter, and does not prescribe either grounds for removal or the•procedure to be followed, is regarded as being equivalent to the power.to remove from an office held at pleasure. With much respect, I cannotthink of any consideration which is in reason opposed to this view.
Counsel for the petitioner has argued that the act of dismissal is onewhich affects the rights of a subject, and that the Board had thereforea duty to act judicially in deciding to dismiss him. I think the trueanswer to this argument is stated by Lord Reid in the same judgment,;when (at p. 73) he points out that the cases of decisions which adversely.affect property rights and privileges are cases dealing with a differentsubject-matter from those of dismissal, and when (at p. 74) he refers toyet another distinct class of cases—those dealing with deprivation ofmembership of a professional or social body. The distinction thus drawnshould be of great assistance, particularly in view of the modem trend toestablish statutory institutions for the conduct of commercial activities. ^It is unreasonable to suppose that the Legislature, merely because itby Statute provides (perhaps otiosely) for the appointment of officersto such institutions, intends that such an officer should be accorded bythe Courts a greater measure of protection in his employment than aperson employed in a similar capacity by a private employer, or than apublic officer holding high office in the State. There is on the other handlittle or no resemblance between the decision of the Board of the C.W.E.to dismiss the petitioner from his office or employment, • and dieisionsor orders for the demolition of private buildings (Cooper v. WordsworthBoard of Works l 2), or for the prevention of erection of buildings on privateproperty within building lines (Spackmor v. Plumstead Board of Works*)or for the denial of the right to practice on the Stock Exchange (Wein-berger v. Ingli&h4) or for the deprivation of a right to a pension (1908 A.C.535), or for the cancellation of the registration of a medical practitioner{General Medical Council v. Spackman5) or for the compulsory taking over
l(l844) 6 Q. B. 682.
218 G. B. N. S. 180.
1886 10 A. G. 229.* (1919) A. G. 606
5 (1943) A. C. 62
BASNAYAKE, C. J.—Sally v. Woor Mohamed
175
of a private school ( Vadamaradchy Hindu Educational Society v. TheMinister of Education x). The fact that the present petitioner wasemployed by the C. W. E., albeit that he was “ appointed ” by theBoard, did not in my opinion clothe him with any property right orwith any privilege, whether professional or social, of which a subjectmay not be deprived except by a determination reached in a judicialmaimer.
I hold that the Board, in the absence of any express provision in theStatute (Cap. 126) specifying either the grounds of dismissal or theprocedure to be followed prior to a decision to dismiss, had no duty toinform the petitioner of the grounds of his dismissal or to give the peti-tioner an opportunity of being heard, or to act judicially in reaching itsdecision.
The application is dismissed, with costs fixed at Rs. 250/-.
Sansoni, J.—I agree.
Application dismissed.