Mrs. W.M.K De Silva v. Chairman, Ceylon Fertilizer Corp.
MRS. W. M. K. DE SILVA
v.-CHAIRMAN, CEYLON FERTILIZER CORPORATION
SUPREME COURTJAMEEL, J.
S.C. APPLICATION No.7/88
NOVEMBER 9,11,22 AND 24, 1988 & DECEMBER 12, 1988
Fundamental Rights – Cruel, inhuman or degrading treatment or punishment – Mentaltorture – Freedom to engage in any lawtul occupation ol one's choice – Articles 11and I4(l)(g) of the Constitution.
The first respondent was the Chairman of the Fertilizer Corporation and the petitionerwas the Secretary. The Fertilizer Corporation had contracted with a foreign supplier forthe supply of urea in three deliveries. In September 1985 the supplier requested thathe be permitted to do the supply in two deliveries. The Purchase Review Committee. of the. Corporation recommended the request subject to a reduction of one dollar permetric ton. Later a rebate of 50 US cents per metric ton was accepted on a purporteddecision of the Board of -29.11 :.1.985 of which the petitioner had no record in theminutes. The petitioner's position was that no such decision had .been made. Howeverat the meeting of 29.4.86 the 1st respondent wanted the 'omission' rectified. Thepetitioner agreed to make an amending minute but refused to authenticate it with hersignature. From here began the eventual souring of relations between the petitionerand the first respondent. The petitioner made a statement to the C.I.D. Unit of thePresidential Commission about this and put the- first respondent under investigation.Subsequently the petitioner was sent on compulsory leave. Later she was recalled with
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effect from 01.01.1988 but she was-not allowed the use of her old cubicle or allocatedany work. The treatment meted out to her gradually deteriorated. She was made to sitin the verandah at a broken table on a broken chair and even totally locked out andlife in the office was made humiliating for her and conditions became intolerable. Inrespect of the treatment meted out to her between 01.01,1988 to 19.01.1988 shecomplained to the Supreme Court that she had been subjected to cruel, inhuman ordegrading treatment or punishment in violation of her fundamental rights under Article11 and that she had been denied continuity of employment and the freedom to beengaged in a lawful occupation of her choice in violation of her fundamental rightsunder Article 14(1)(g).
While the treatment meted out to the petitioner would undoubtedly amount to agrossly unfair labour practice, it does not constitute torture or cruel, inhuman ordegrading treatment or punishment.
Per Amerasinghe, J. "In my view Article 11 of the Constitution prohibits any act bywhich severe pain or suffering, whether physical or mental, is. without lawful sanctionin accordance with a procedure established by law, intentionally inflicted on a person(whom I shall refer to as the 'victim') by a public official acting in the discharge of hisexecutive or administrative duties or under colour of office, for such purposes asobtaining from the victim or a third person a confession or information, suchinformation being actually or supposedly required for official purposes, imposing apenalty upon the victim for an offence or breach of a rule he or a third person hascommitted or is suspected of having committed, or intimidating or coercing the victimor a third person to do or refrain from doing something which the official concernedbelieves the victim or the. third person ought to do or refrain from doing, as the casemay be."
"Article 11 is a species belonging to a certain genera. It belongs to that classwhich protects life and personal freedom. It belongs to the same family as thefundamental rights of freedom from arbitrary arrest, detention and punishment andretroactive penal legislation.”
"Article 11 is not concerned with the conduct of public officials in relation to suchmatters as one's contractual rights in a place of work."
Article 14(1 )(g) ensures the freedom to engage in any lawful occupation of one'schoice; but this provision does not extend to a right to be employed by a particularmaster or in a particular place of work.
Article 14 confers the right to certain freedoms upon citizens of Sri Lanka. There is nodoubt "that the petitioner is a Sri Lankan. However, in an application for relief underArticle 14(1 )(g). the Petitioner must also show that her right to engage in any lawfuloccupation, profession, trade, business or enterprise was. unreasonably’obstructed.The Petitioner must go further still'and establish that the right claimed was (a) a legalright and that (b) it is a fundamental' right.
Rer Amerasinghe,' J: "That. Article (Article I4(i)(g). recognizes the right' of everycitizen to use his powers of body and mind in any lawful calling: to pursue anylivelihood and avocation. It confers no obligation to give any particular kind of work or■indeed any right to be continued in employment at all."
Mrs. W.M.KDe Silva v. Chairman, Ceylon hertilizerCorp-.
Cases referred to:
Elmore Perera v Major Montague Jayawickrema  1 Sri LR-285, 300, 301.323
Wijeratne v People's Bank (1984) 1 Sri LR 1
Roberts and another v Ratnayake and others  2 Sri LR 36, 45 ..
Thadchanamoorthi v Attorney-General and others (1980) 1 FRD 129, 140
Velmurugu v Attorney-General and another (1981) 1 FRD 180, 215, 241
Jeganathan v The Attorney-General (1982) 2 FRD 257
Mariadas Raj v The Attorney-General (1983) 2 FRD 397
Vivienne Goonewardene v Perera (1983) 2 FRD 426
Kapugeekifana v Hettiarachchi and two others (1984) 2 Sri LR 153
Amal Sudath Silva v Kodituwakku  2 Sri LR 119
Saman v Leeladasa etal- S.C.'Application 4/88 -'S'C. Minutes of 12.12.1988.
Re vis v Smith (1856) 18 CB 126, 141
Marrinan v Vibart  1 QB 234, 239
Eshugbayi v Government of Nigeria AIR 1931 PG 248; 252
The State of Jammur. and Kashmir v Ghulam Rasool AIR 1961 SC 1301
Wijesinghe v Attorney-General (1984) 2 FRD 40•
Wijetunge v Aluwatuvala and others – S.C. Application 89/84 – S.C. Minutes of30.10.84
Colliery Sunday Referee Publishing. Co Ltd  2 KB 647
Mar be v George Edward. Daily Theatre Ltd  1 KB 269
Herbert Clayton & Jack Waller Ltd v Oliver  AC 209
Hall v British Essence Co Ltd (1946) 62 TLR 542
Titmus & Titmus v Rose & Watts  1 All ER 599
Dunk v George. Watter & Sons Ltd.  2 All ER 630 CA
Langston v Amalgamated Union of Engineering Workers . 1 All ER 980
Breach v Epsylon Industries Ltd [1976)1 CR 316
Turner v Liwdon  K B 153
Bosworth v Angus Jowett & Co. Ltd.  1 RLR 374 EAT
28: R.P. Jayasena and others v K. R. S. Soysa and another (1980) 1 FRD 97. 102
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APPLICATION against infringement of fundamental rightsM. A Mansoor with K. S. Tillekeratne lor petitioner.
K. N. Choksy, PC with Rohitha Bogollagama and Nihal Fernando for 1st and 2ndrespondents.
Shibly Aziz, PC, Additional Solicitor-General 3rd respondent
Cur. adv. vult.
March 31, 1989.
The Petitioner joined the Ceylon Fertilizer Corporation (the 2ndRespondent) in 1969, as a clerk. In April 1981, when Noel Fernando,the Secretary to the Board, went on overseas leave, the Petitionerwas appointed Secretary to the Board and Personal Assistant to theChairman. The Secretary to the relevant Ministry and theAttorney-General have been made parties to this application for thepurpose of giving them notice.
The Petitioner’s grievance relates to the treatment meted out to herin consequence of statements made by her in February 1987 to the
I.D. Unit of the Special Presidential Commission of Inquiryconcerning a rebate obtained by the Corporation in late 1985 inrespect of a contract for the supply of 35,000 m.t. of urea byPetrochemical Industries Ltd of Kuwait (“the supplier”).
In January 1985, soon after the 1st Respondent assumed office asChairman, the Petitioner informed him of her grievance relating to adecision of the former Chairman that she had to account to anotherofficer in respect of payments for telex bills. The 1st Respondent tookprompt action to redress this grievance. In October 1986, the Boardacceded to her request that her post be upgraded, as "she shouldershigh responsibility”.'I mention these two matters as they indicate that,upto October 1986, the Chairman and the Board had no reservationsabout the Petitioner s work, and did not have any animus against her.
In September 1985, the supplier requested that it be permitted toadvance the deliveries under the contract, and in two shipmentsinstead of three as stipulated. The Purchase Review Committee ofthe Corporation considered, and favourably recommended thisrequest, subject to a price reduction of US $ 1 per m.t. It appearsthat this figure was intended to cover the estimated additional costs
Mrs. W.M.K De Silva v. Chairman, Ceylon Fertilizer Corp. (Jameel, J.)
of warehousing and storage. The Board approved, the Ministry wasinformed, and a letter was written to the supplier on this basis.Advance delivery was made, but there was-no reply to that letter,until the local agents of the supplier wrote on 21.11.85. That letter"confirmed” the discussion between the principal and Corporationofficials, including the 1st Respondent, and while acknowledging thatit was the supplier’s problems that rendered it necessary to advancethe deliveries, asserted that the arrangement was even morebeneficial to the Corporation; and suggested a price reduction of US$ 10000. ' – "
That letter bears the date stamp of the Purchasing Division of theCorporation-, indicating that it was received in: that Division on.3.12.85; Counsel for the Petitioner has expressly stated that this isnot challenged. It bears ah endorsement, dated. 2.12.85, admittedlymade by the 1st, Respondent to the> Purchasing Manager, "Boardapproved 50% recovery. PI. get this expedited”. It is thus clear thatthe 1st Respondent had received this letter not later than 3.12.8?.There is nothing to indicate how and when the supplier agreed toadvance his offer from US $ 10,000 to US $ 17,500, and there musthave been some communication between the parties of which we areunaware. In fact, the refund ultimately received by the Corporationwas the rupee equivalent of US $ 17,500 (or US $ 0.50 per m.t.). Theexistence of this letter came to the, knowledge of the Petitioner, shesays, only in or about April 1986 when the Auditors queried thequantum of the price reduction, for which they could find no Boardauthority. Having made a search, she failed to find any Boarddecision, whereupon the Auditors had: given her the date 29.11.85and informed her of the existence of this letter in the PurchasingDivision. The Board meeting immediately prior to 2:12.85 was thatheld on 29.11.85, and neither the agenda nor the minutes of thatmeeting made any reference to this letter or that subject-matter; norhas any reference been .made thereto when the minutes of thatmeeting were confirmed at the subsequent meeting. She says thatthe 1st Respondent then dictated a statement for submission by herat the Board meeting of 29.4.86, which,, she refused to sign; thatdocument was typed, but not signed, by her, and was treated as aBoard paper;, this was discussed, and the Board recorded that byinadvertence the decision in regard to this letter had not beenminuted, and proceeded to make a full record of that decision. Thisconstitutes the casus belli in this case: was that decision in fact taken
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on 29.11.85, and an inadvertent omission in the minutes rectified on
or was such a decision not taken, and were the proceedingsof 29.4.86 no more than a cover-up, with the Petitioner as theunfortunate scapegoat?
However, the relationship between the Petitioner and the 1stRespondent apparently continued to be cordial until about October1986 when her. post was upgraded. Learned President's Counsel forthe 1st and 2nd Respondents relied heavily on this circumstance asjustifying the inference that what occurred on 29.4.86 was merely therectification of an omission. However, this is not conclusive, for it isequally possible that the Petitioner was an unwilling participant – orperhaps, spectator – insofar as the events of 29.4.86 wereconcerned, having only discharged the stenographic function ofrecording the minute without involving herself in an admission as toits truth; and through concern for her livelihood, refrained from stirringup' controversy. On that view, upgrading her post could be the rewardfor acquiescence.
A Commission had been appointed, by the Minister in charge ofthe Corporation, to inquire into various irregularities alleged againstthe 1st Respondent, and in October 1986 the Petitioner testified interalia about this price reduction. She also made a statement to the
I.D. Unit of the Special Presidential Commission of Inquiry on
At a Board meeting held on 19.2.87, the Petitionersomission (in April 1986) to sign the statement acknowledging herresponsibility for the ‘incorrect” minute was again referred to, andupon her continued refusal to take responsibility, she was asked toleave the Board room, and recalled about two hours later to takedown the minutes. At the next Board meeting held on 25.2.87, theBoard took the view that she had become a tool in the hands ofpersons conspiring to make allegations against the'1st Respondentand the:Board, and decided that they lacked confidence in her, andplaced her on compulsory leave pending inquiry. Thereafter, chargeswere’levelled against the 1st Respondent by the Special PresidentialCommision; these were not inquired into, as the proceedings of thatCommission terminated in December that year. (However, theShipping Manager of the Corporation had been dealt with, by thisCourt, for contempt of that Commission, by reason of his havingattempted to dissuade the Petitioner from giving evidence before thatCommission.)
Mrs. W. M. K De Silva v. Chairman, Ceylon Fertilizer Corp. (Jameet, J.)
On 23.12.87, the Board of the Corporation resolved to recall her towork on 1.1.88, and to take disciplinary action in respect of thematters which led to her being placed on compulsory leave. A letterrecalling her was served on her at 8 p.m. on 31.12.87. However,upon her reporting for work on 1.1.88, she found that she was notassigned the work previously carried out by her. Further, even herformer cubicle was not available, and she was reqoested to occupyanother; on the next few working days, even that cubicle was notavailable, and she had to sit on a Visitor’s chair in a verandahoutside the Secretarial Unit. On 8.1.88, she,was directed to use abroken chair and a broken desk just outside the 1st Respondent’soffice. On the next day, the 1st Respondent’-s office was locked, andshe could not even reach her broken chair and table: Throughout thisperiod she was not assigned any work. Although in the 1stRespondent’s affidavit it is claimed that the Board decided "also torelieve her of her duties as Secretary to the Board of Directors", andthat the Corporation "has accordingly assigned her the duties ofAssistant Administratioon Manager”, there is nothing to that effecteither in the relevant Board minute or in the letter recalling her towork.
The 1 st Respondent’s conduct in relation to the price reduction andthe letter of 21.11.85 would properly have been a matter for inquiryby the aforesaid Commission. However, extensive oral and writtensubmissions have been made on that topic, as the 1st Respondent'sconduct towards the Petitioner is alleged to have been influencedthereby. There appear to be two possibilities:
That letter was in fact tabled at the Board meeting, and adecision was taken:
That letter was not tabled, a price reduction not discussed, andthe smaller price reduction was only duly approved in April 1986; the1st Respondent, decided upon the smaller price reduction prior to3.12.85, without formal Board approval;
If the letter was formally tabled at the Board meeting, it shouldhave been handed to the Petitioner for the purpose of her secretarialduties; instead, it ^appears to have been retained by the 1st
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Respondent over the intervening weekend, and sent to thePurchasing Manager on Monday (2.12.85). The Petitioner's versionthat this letter did not then come to her notice thus seems moreplausible, despite the affidavits of other Directors that the 1stRespondent “submitted" this letter. It may well be that the 1stRespondent made a passing reference to the contents of the letter,and without discussion obtained approval for the smaller pricereduction. On the material available to us, it does not seem probablethat the letter was tabled and that a full discussion took place. Whileno finding on that matter is necessary, it is important to stress thatthe omission in the minutes is not the lapse of the Petitioner: sinceadmittedly the letter was not handed to her at any stage. Thesubsequent events have thus to be viewed on the basis that therewas a lapse or irregularity on the part of the 1st Respondent, and notthe Petitioner; and that there appear to have been some matters fitfor inquiry by the aforesaid Commission.
In that background, thereafter the Petitioner refused to acceptresponsibility for the omission; this was not fatal, because the Boardminute of 29.4.86 was sufficient for the audit query. Her subsequentconduct between October and February 1987 would inevitably havecaused alarm to the 1st Respondent; her insistence that there hadbeen no Board decision on 29.11.85 could have had seriousconsequences.
While a host of minor irritants have been dealt with by learnedCounsel for the Petitioner, the real issue in this case is whether thetreatment meted out to her between 1.1.88 and 19.1.88 (when thispetition was filed) constitutes a violation of her fundamental rights. Allthe other matters relate to quite different periods, and are relevantonly to support Counsel’s submission that the 1st Respondententertained a personal animus against the Petitioner; arising from the1st Respondent's lapse, or irregular conduct, in regard to the pricereduction, and the Petitioner’s refusal to accept responsibilitytherefor.
It is clear that the Petitioner has been degraded and humiliated, bybeing made to mope in front of her colleagues and subordinates,isolated on a verandah, and at times locked out, even without herbroken chair. She would naturally view this as the culmination of acourse of conduct commencing in February 1987, after her statementto the C.I.D. While this treatment would undoubtedly amount to a
Mrs. W.M.K De Silva v. Chairman, Ceylon Fertilizer Gorp. (Jameel, J.)
grossly unfair labour practice, it does not constitute “torture, or cruel,inhuman or degrading treatment or punishment”; the acts complainedof are clearly not 'torture" or ’’punishment"; they fall far short of thedegree of mental or physical coercisiveness or viciousness requiredto constitute “cruel, inhuman or degrading treatment". This Courtwhen considering the Essential Public Services Bill (Decisions of theSupreme Court on Parliamentary Bills, 1978-1983, page 65) rejectedthe contention that Article 11 is confined to “some wrongful andwicked application of physical force”; a mandatory forfeiture of allproperty and removal from the register of any profession, regardlessof the nature of the offence and the degree of blameworthiness, washeld to be a cruel and inhuman punishment and thus unconstitutional,but permissible if left to the discretion of a Court. Thus ill-treatmentper se, whether physical or mental, is not enough; a very high degreeof mal-treatment is required.
It was further contended that, insofar as it was linked to heroccupation, this treatment was in violation of her fundamental rightunder Article 14(1 )(g); that she had a right to continuity ofemployment, and that the 1st Respondent was attempting to coerceher to leave the Corporation. Article 14(1 )(g) ensures the freedom toengage in any lawful occupation of one’s choice, but this provisiondoes not extend to a right to be employed by a particular master orin a particular place of work. In Elmore Perera’s case(1)Sharvananda, C.J., expressed the opinion (semble) –
“Article 14(1 )(g) recognises a general right in every citizen to dowork of a particular kind and of his choice. It does not confer theright to hold a particular job or to occupy a particular post ofone’s choice. The compulsory retirement complained of, may, atthe highest affect his particular employment, but it does notaffect his right to work as a Surveyor.”
Hence there is no infringement of the fundamental right under Article14(l)(g).
Learned President’s Counsel has submitted that the Corporation isa trading Corporation which imports, mixes and sells fertilizer, incompetition with several other public and private organisations; andthat the acts of the Corporation do not constitute executive oradministrative action. In Wijeratne v People’s Bank (2), a securityofficer was placed in a lower grade, after a re-organisation; he was
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employed in connection with the commercial activities of the Bank,and not in connection with any State activity. It was held that theapplication was not maintainable as there was no infringement by“executive or administrative action’’. Here, too, the Petitioner hasfailed to establish that the conduct complained of falls within thatdescription.
All the grievances of the Petitioner, including non-payment ofincrements and other dues, if established, would constitute violationsof her contract of employment; as was observed in Roberts' case (3)
“where the rights and obligations of the parties to such contractfall to be determined by the ordinary law of contract, then theprovisions of Article 12(1) of the Constitution have noapplication, and cannot be invoked.’’
I would accordingly dismiss this application, but having regard to allthe circumstances, without costs.
FERNANDO, J. – I agree with the judgments of my brothers Jameel,
J., and Amerasinghe, J.
The delay in arriving at .a decision in this case was due to theunfortunate fact that learned Counsel for the Petitioner, troubled ashe was by illness, was constrained to request a postponement of theoral hearing from 24 November to 12 December. Although heundertook to complete his submissions in writing by 26 December1988, he was able to do so only on 22 February 1989. ThereafterCounsel for the Respondents placed his further written submissionsbefore us on 2 March 1989.
I have had the advantage of reading the judgment of my brotherJameel, J. and I entirely agree with his comprehensive statement ofthe facts. I am also in agreement with his conclusion that thePetitioner’s application should be dismissed on account of her failureto establish that her fundamental rights under Articles 11,12 and 14have been violated, but that, in the special circumstances of thiscase, this Application should be dismissed without costs.
Article 11 of the Constitution guarantees freedom from torture,cruel, inhuman or degrading treatment or punishment. The words of
Mrs. W.M.K De Silva v. Chairman, Ceylon Fertilizer Corp. (Amerasinghe, J.)
the Constitution are in terms indentical to those in Article 5 of theUniversal Declaration of Human Rights which was adopted by theGeneral Assembly of the United Nations on 10 December 1948.Article 5(2) of the American Convention on Human Rights andPeoples' Rights, Article 3 of the European Convention for theProtection of Human Rights and Fundamental Freedoms and Article7 of the International Convention on Civil and Political Rjghts (Cf.also Article XXV of the American Declaration of the Rights and Dutiesof Man) are also in similar terms.
There are several decisions of this Court arising out of applicationsfor relief based upon the violation or alleged violation of thefundamental right to be free from torture, or cruel, inhuman Ordegrading treatment or punishment. (E.g. see Thadchanamoorthi v.Attorney-General and Others (4); Veirhurugu v. Attorney-General andanother (5); Jeganathan v. The Attorney-General (6); Mariadas Raj v.The Attorney-General (7); Vivienne Goonewardene v. Rerera (8);Kapugeekiyana v. Hettiarachchi and two others (9); Amal SudathSilva v. Kodituwakku (10) and AS.Saman v. Leeladasa et a/.(11).
The acts in question in those cases were all done by lawenforcement officers of the State including members of the defenceservices who, in the special circumstances of the times, wereengaged in law enforcement in addition to the task of the defence ofthe Republic. They were all cases in which physical violence formedthe basis of the complaint. In the application before us, however, thealleged cruel, inhuman or degrading treatment or punishmentcomplained of is psychical in nature. It is, therefore, a novel claim forrelief and it may raise a presumption against its validity. We mayremark that the world has gone on very well without applications suchas this and we doubt whether it would continue to do so if suchthings were allowed. (Cf. per Creswell, J. in Revis v. Smith (12),followed with approval in Marrinan v. Vibart (13). Yet, this Courtundoubtedly has power to recognize a novel claim if justice .sorequires. We shall not shrink from doing our duty to advancefundamental rights as we are required to do by Article 4(d) of theConstitution. (Cf. Eshugbayi vs. Government of Nigeria (14).
I am of the opinion that the torture or cruel, inhuman or degradingtreatment or punishment contemplated in Article 11 of our
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Constitution is not confined to the realm of physical violence. It wouldembrace the sphere of the soul or mind as well. Lord Denning inFreedom Under the Law. The Hamlyn Lectures, 1949 at p. 26, afterstating that torture is “usually for the sake of getting people toconfess their guilt or to implicate others", goes on to say as follows:
“Brutality is not used today but some other means not known to usis used. Take the cases of Cardinal Mindzenty and Mr. Rajk. Thosemen actually made full confessions in open court with all appearanceof telling the truth. Yet most people outside the concerned countriesthink that they have been induced by some means or other to saywhat is untrue. The most credible theory', says The Times, is thatSoviet Psychologists have perfected methods of mental aggressionwhich can be applied with success to a great variety of victims….'The same method, with suitable variation in approach might beapplied to a Communist Cabinet Minister and a Catholic Cardinal."
The fact that mental aggression should be looked upon in thesame manner as we contemplate physical attack is supported byResolution 3452 (XXX) which was adopted by the General Assemblyof the United Nations at its 30th session in 1975. The Resolutionstates as follows in Article 1 :
“1. For the purpose of this" Declaration, torture means any actby which severe pain or suffering, whether physical ormental, is intentionally inflicted by or at the instigation of apublic official on a person for such purposes as obtainingfrom him or a third person information or confession,punishing him for an act he has committed, or intimidatinghim or other persons. It does not include pain or sufferingarising only from, inherent or incidental to, lawful sanctionsto the extent consistent with the Standard Minimum Rulesfor the Treatment of Prisoners.
2. Torture constitutes an aggravated and deliberate form ofcruel, inhuman or degrading treatment or punishment.”
Ralph Beddard in his book, Human Rights and Europe, SecondEdition, 1980 at p. 102 says that “inhuman treatment" was definedby the European Commission of Human Rights in, what is popularlyknown in this country – see Thadchanamoorthi v. Attorney-General
Mrs. W. M. K De Silva v. Chairman, Ceylon Fertilizer Corp. (Amerasinghe, J.)405
(4), Velmurugu v. A.G.& Others (5), as well as elsewhere as, “theGreek case’’,
“as an aggravated form of inhuman treatment which treatment orpunishment may be said to be degrading if it grossly humiliates theindividual before others or drives him to act against his will orconscience.’’
In my view Article 11 of the Constitution prohibits any act by whichsevere pain or suffering, whether physical or mental is, without lawfulsanction in accordance with a procedure established by law,intentionally inflicted on a person (whom I shall refer to as ‘thevictim’) by a public official acting in the discharge of his executive oradministrative duties or under colour of office, for such purposes asobtaining from the victim or a third person a confession orinformation, such information being actually or supposedly requiredfor official purposes, imposing a penalty upon the victim for anoffence or breach or a rule he or a third person has committed or issuspected of having committed, or intimidating or coercing the victimor a third person to do or refrain from doing something which theofficial concerned believes the victim or the third person ought to door refrain from doing, as the case may be.
I do not think that the facts of this case fall within the terms of theprohibitions contained in Article 11 of the Constitution. Mr. Mansoor’simpassioned and eloquent description in terms of the cause andconsequence as far as the facts of this case were concerned,appears to me to have been designed to excite and gratify our softeremotions. However he failed to pursuade me by way of logicalargument or by reference to a single precedent laid down by thisCourt or any other tribunal or by reference to any internationalconvention or document or any other guide whatsoever that thePetitioner had, in the relevant sense, been subjected to torture orcruel, inhuman or degrading treatment or punishment. Sentiment isan inadequate guide to decision. The Petitioner may have suffered agreat deal of anguish as a result of the acts of the First Respondent,but it has not been established that his conduct was motivated by thesort of reason that would bring the case within the ambit of Article 11of the Constitution. Learned Counsel for the Petitioner claimed thatthe acts complained of were inflicted by way of a “punishment” forthe reason that the Petitioner gave such information and assistance
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to certain investigators which might have implicated the FirstRespondent in a charge of improper behaviour before the SpecialPresidential Commission. There was no punishment in the senserelevant to Article 11, namely, the imposition of a penalty for anoffence or breach of a rule or supposed offence or breach of a rule.He may have been taking vengeance on account of the feelings ofpain, distress and intense disappointment caused to him by theconduct of the Petitioner whose personal loyalty he seemed to haveexpected to even transcend the higher obligations she owed theState. However, these expressions of resentment did not constitutepunishment in the sense in which the word is used in Article 11 of theConstitution.
Article 11 is a species belonging to a certain genera. It belongs tothat class which protects life and personal freedom. It belongs to thesame family as the fundamental rights of freedom from arbitraryarrest, detention and punishment and retroactive penal legislation.(See Articie 13 of the Constitution. Cf. The International Bill of Rights.Normative and Institutional Developments, 1948-1985, UNESCO,1986, Chapter 5. cf. also Lord Denning, Freedom Under the Law,supra, Chapter I).
Article 11 is not concerned with the conduct of public officials inrelation to such matters as one’s contractual rights in a place of work.There may well have been, as submitted by learned Counsel for thePetitioner, such intolerable conduct by the First Respondent whichmade her contract of employment so difficult that a repudiation of hercontract might have been justified. He laid a mass of evidence beforeus to support his contention that there was enough to sustain hisclaim that the Petitioner was compelled to go and that she wasconstructively dismissed. However, such evidence is not sufficient toestablish a violation of the Petitioner’s fundamental rights underArticle 11. In my view the Petitioner formed a wrong idea thatredress, if any, due to her for the constructive dismissal shesupposed, should be obtained from this Court by an application forrelief under Article 126 of the Constitution for the violation of afundamental right.
Learned Counsel for the Petitioner claimed that the Petitioner'sfundamental right to equality before the law and equal protection ofthe law pledged by Article 12(1) of the Constitution had been violatedbecause the First Respondent had acted in breach of the law relating
Mrs. W.M.K De Silva v. Chairman. Ceylon Fertilizer Corp. (Amerasinghe. J.)407
to the Petitioner's contract of employment resulting in the constructivetermination of her employment. It is well-established law that it is notevery breach of a legal right that amounts to a violation of theconstitutional pledge of equal protection. (E.g. see The State ofJammu and Kashmir v. Ghulam Rasool (15); Wijesinghe v.Attorney-General (16); Wijetunge v. Aluwatuvala and Others (17);Elmore Perera v. Major Montague Jayawickreme (1). The firstRespondent, he argued, had violated the provisions of Article 12(1)by preferring Noel Fernando to the Petitioner in the matter of theappointment of a Secretary to the Board of Directors. The Petitionerwas appointed to the post of Secretary when Noel Fernando wentoverseas on long leave. The Board had decided to create a Post ofSecretary/Legal Officer. Neither the Petitioner nor Noel Fernandopossessed Legal qualifications and Noel Fernando was appointedduring the Petitioner’s absence on compulsory leave to perform theduties of Secretary which he had done prior to his departure. Whenthe Petitioner returned after her period of compulsory leave wasterminated, Noel Fernando continued to act as Secretary to theBoard. This, learned Counsel for the Petitioner maintained, wasunjust and unfair as far as his client was concerned. The Petitionerfailed to discharge the burden that was upon her of showing how shehad been discriminated against in the sense that she was subjectedto unequal and selective treatment and I am of the opinion that thePetitioner has therefore failed to establish any violation of herfundamental right to equality of treatment. (See Elmore Perera v.Major Montague Jayawickrema (1) supra, at pages 300-301).
Learned Counsel for the Petitioner, repeatedly referred to the factthat the Petitioner, although recalled to employment from interdiction,had not been assigned any work whatsoever. This he claimed, was aviolation of the Petitioner’s fundamental right guaranteed by Article14(1) (g) which recognizes that every citizen is entitled to “thefreedom to engage by himself or in association with others in anylawful occupation, profession, trade, business or enterprise.”
Article 14 confers the right to certain freedoms upon citizens of SriLanka. There is no dispute that the Petitioner is a Sri Lankan.However, in an application for relief under Article 14(1 )(g), thePetitioner must also show that her right to engage in any lawfuloccupation, profession, trade, business or enterprise wasunreasonably obstructed. The Petitioner must go further still and
Sri Lanka Law Reports
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establish that the right claimed was (a) a legal right and that (b) it isa fundamental right, (cf. H.M. Seervai, Constitutional Law of India2nd Edn., 1975, Vol. 1, at p. 450).
There is no evidence in the matter before us that the Petitionerwas prevented in any way from engaging in any lawful occupation,profession, trade, business or enterprise. The complaint was that thePetitioner was frustrated because she had not been assigned anywork at all although she was paid her due wages.
Perhaps there is a moral right to earn one's living and to enjoy thewarm glow of satisfaction that visits a conscientious soul at the endof a day of honest endeavour. “Never one of you have eaten betterfood than that which he has earned with his own hands," says theHoly Prophet Mohamed. (See Ali Abdul Wahid Wafi in The Problemsof Human Rights in the Islamic Tradition, Round-Table Meeting onHuman Rights, Oxford, 11-19 November, 1965, UNESCO HumanRights Teaching, Vol.IV, 1985 at p. 39). Whether an employer's legalduty is to provide wages as well as work is an uncertain matter. (E.g.see Collier v. Sunday Referee Publishing Co. Ltd. (18); Marbe v.George Edwardes, Daily Theatre Ltd (19); Herbert Clayton & JackWaller Ltd. v. Oliver (20); Hall v. British Essence Co. Ltd. (21);Titmus and Titmus v. Rose and Watts (22); Dunk v. George Watter &Sons Ltd (23); Langston v. Amalgamated Union of EngineeringWorkers (24); Breach v. Epsylon Industries Ltd. (25); Turner v.Lawdon (26) and Bosworth v. Angus Jowett & Co. Ltd. (27). If thereis no legal duty on an employer to provide work, there can be nocorresponding lecjal right to work.
Even if I were prepared to go so far as to hold that the Petitionerwas, by reason of an implication in her contract of employment,entitled to claim a legal right to work, in the sense that she has aright to have the opportunity of doing work when it is there to bedone, I am unable to agree with learned Counsel for the Petitionerthat the failure to provide the Petitioner with work violates any rightguaranteed by Article .14(1 )(g) of the Constitution. That Articlerecognizes the right of every citizen to use his powers of body andmind in any lawful calling; to pursue any lawful livelihood andavocation. It confers no obligation to give any particular kind of workor indeed any right to be continued in employment at all. (cf. perIsmail, Weeraratne and Wanasundera, JJ. in R.P.Jayasena & Others
Martin v. Wijewardena
v. K.R.S. Soysa and Another (28). There may have been a breach ofa contractual right in regard to which a complaint may have beensuccessfully made to another forum – it is a matter on which I do notwish to make any observations in this case — but there has been nobreach of a fundamental right conferred by Article 14(1)(g), namelythe right to pursue any lawful livelihood or avocation, and,consequently, I hold that the Petitioner is not entitled to any relief fora violation of Article 14(1 )(g) of the Constitution.
The Petitioner has, with remarkable courage in pain and adversity,remained in her employment and endeavoured to restore a desired ordesirable state of circumstances relating to her employment by lawfulmeans. With some reluctance, therefore, but with no doubt that shehas misconceived the remedies available to her under the law, Ideclare that the Petitioner’s rights under Article 11,12(1) and 14(.1)(g)have not been violated and consequently I make order dismissing theapplication of the Petitioner but without costs.