MAHANAYAKE vs CHAIRMAN CEYLON PETROLEUM CORPORATION AND OTHERS

036-SLLR-SLLR-2005-V-2-MAHANAYAKE-vs-CHAIRMAN-CEYLON-PETROLEUM-CORPORATION-AND-OTHERS.pdf


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MAHANAYAKEVSCHAIRMAN CEYLON PETROLEUM CORPORATION AND OTHERSCOURT OF APPEALWIJEYARATNE J.
SRISKANDARAJAH J.
CA 1323/2002JANUARY 10, 2005MARCH 24, 2005
Writs of certiorari/Mandamus – on an order of the Human Rights CommissionDoes Writ lie ? – Termination – Contractual – Alternate remedy ? – availabilityof a Writ to reinstate – Natural Person holding public office – Recommendationof Human Rights Commission – Does it create a legal right ?
The petitioner sought a writ of Certiorari to quash the Order of the 2ndRespondent Corporation terminating her services and a writ of Mandamus tocompel the 01st and 02nd Respondents to reinstate the Petitioner as directedby the 03rd Respondent – Human Rights Commission.
HELD
The order arises out of a contract of employment and the terminationcomplained of is based upon a breach of her contract of employment.Where the relationship between the parties is purely contractual one ofcommercial nature neither Certiorari nor Mandamus would lie.
When a specific remedy is given by a statute (Industrial Disputes Act),deprives the person who insists upon a remedy of any other form of_remedy than that given by the statute.
A Writ of Mandamus could only issue against a natural person, whoholds public office. Petitioner cannot seek a writ of mandamus againstthe 03rd Respondent the Human Rights Commission is not a naturalperson, the Petitioner has failed to name the Members of theCommission to seek this remedy.
The Human Rights Commission is a body which can only make arecommendation. This recommendation neither creates a legal rightfor the Petitioner to claim re-instatement nor does it create a legal dutyfor Respondent Corporation to reinstate the Petitioner.
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Sri Lanka Law Repons
(2005) 2 Sri L. R.
Per Sriskandarajah J.
“A Writ of Mandamus would lie where a statute mandates certain action, indefined circumstances and despite the existence of such circumstances,the required action has not been performed.”
Cases referred to :
Jayaweera vs Wijeratne – 1985 2 Sri LR 413
Hendrick Appuhamy vs Johan Appuhamy – 69 NLR 32
Haniffa vs Urban Council, Navvalapitiya – 66 NLR 48
Mageswaran vs UGC 5 others – 2003 – 2 Sri LR 282, 285
Rohan Sahabandu for Petitioner.
Varuna Basnayaks P. C., with Ms Yamuna Kuruppu for 1st and 2ndRespondents
Ms Yuresha de Silva S. C., for 3rd RespondentMAY 25, 2005
cur adv vult
SRISKANDARAJAH J.
WIJAYARATNE J.
I agree.
Application dismissed.
S.SRISKANDARAJAH. J
The Petitioner in this application has sought a writ of Certiorari to quashthe order of the 02nd Respondent terminating the services of the Petitioneron 29.08.2000. The Petitioner has also sought a writ of mandamus tocompel the 01st and 02nd Respondents to reinstate the Petitioner withback wages or in the alternative to compel the 01 st and 02nd Respondentsto reinstate the Petitioner as directed by the 03rd Respondent or in thealternative to compel the 03rd respondent to this matter to Her Excellencythe President.
The Petitioner with a reference letter of Dr. Chandiama de Mel, the thenChairmen of the 02nd Respondent Corporation applied on 25.07.2000 for a
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Mahanayake Vs
Ceylon Petroleum Corporation & Others <■
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suitable job in the 02nd Respondent Corporation. The Petitioner wasinformed by P1 that her application would be considered when an .opportunityarises. Subsequently she was called for an interview and after an interviewon 11.08.2000, she was appointed as a Record Keeper, Grade B4 from15.08.2000 by the letter of appointment P3. Her service was terminatedby letter dated 29.08.2000 P4 on the basis that she has misrepresentedand misled the interview board by suppressing her personal data.
The Petitioner in this application is seeking to quash the aforesaidorder of termination of her employment P4. The order is arising out of acontract of employment and the termination complained of based upon abreach of her contract of employment. In Jayaweera v Wijeratne(1), G. P.S. de Silva J held where the relationship between the parties is a purelycontractual one of a commercial nature neither certiorari nor mandamuswill lie. On the other hand the petitioner had effective alternate remediessuch as seeking redress before a Labour Tribunal under the IndustrialDispute Act. In Hendric Appuhatnyy Johan Appuhamy*2* the court heldwhere a specific remedy is given by a statute thereby deprives the personwho insists upon a remedy of any other form of remedy than that given bythe statute. Under these circumstances a writ of certiorari will not beavailable to quash the order of termination dated 29.08.2000 or a writ ofMandamus to compel the 01st and 02nd Respondents to reinsate thePetitioner with back wages.
The Petitioner had decided to seek the intervention of the Human RightsCommission in this matter and the Human Rights Commission after aninquiry recommended that the Petitioner should be re-instated. The 02ndRespondent Corporation did not act upon this recommendation and thechairman of the 02nd Respondent by his letter dated 21.05.2001,2R14informed the Human Rights Commission as to why he was not implementingthe recommendation. The Petitioner by this application seeking a writ ofmandamus to compel the 01st and 02nd Respondents to reinstate thePetitioner as directed by the 03rd Respondent or in the alternative to compelthe 03rd respondent to refer this matter to Her Excellency the President tocompel the 01 st and 02nd Respondents to reinstate the Petitioner. A writ ofmandamus can only issue against a natural person who holds a publicoffice. In Haniffa vUrben Counsel Nawalapitiya13*, the Court held, that in an
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application tor a writ of mandamus against the Chairman of an UrbanCouncil the Petitioner must name the individual person against whom thewrit can be issued. Therefore The Petitioner in this application cannotseek a writ of mandamus against the 03rd Respondent the Human RightsCommission as it is not a natural person and the Petitioner has failed toname the members of the commission to seek this remedy. Further a writof mandamus may issue to compel something to be done under a statueit must be shown the statute impose a legal duty. In Magesivaran vUniversity Grants Commission and Othersthe court held “A writ ofmandamus only commands the person or body to whom it is directed toperform a public duty imposed by law. In other words a writ of mandamuswould lie where a statute mandates certain action in defined circumstancesand despite the existence of such circumstances, the required action hasnot been performed." The human rights commission is a body, which canonly make a recommendation. This recommendation neither creates alegal right for the petitioner to claim reinstatement in the 2nd RespondentsCorporation nor does it create a legal duty for the Respondent Corporationto reinstate the petitioner. For the reasons stated above the Court dismissthis application without costs.
P. WIJAYARATNE J.
Judge of the Court of Appeal.
I agree.
Judge of the Court of Appeal.