PIYATILAKE v. VINCENT PANDITA

008-SLLR-SLLR-1989-V-1-PIYATILAKE-v.-VINCENT-PANDITA.pdf


SCPiyatilake v. Vincent Pandita (Silva. J.)
109
. PIYATILAKEV.
VINCENT PANDITA
COURT OF APPEAL. S.N. SILVA J.
C.A. APPLICATION NO. 873/82. ■
JUNE 9. 1988.
Writ of Certiorari — Notice to quit under s. 3 of the Government Quarters(Recovery of Possession) 'Act No. 7 of 1969 — Government Quarters as-defined bys. 9.'
The petitioner was served with-notice to vacate'premises (occupied by him) ofthe Workers Quarters of the Pugoda Textile ^ill of the Government ownedBusiness. Undertaking of the National Textile Corporation, issued by theSecretary, to the Ministry, of Textiles.,The petitioner was an,employee of thePugoda Textile Mill and the Notice was cpnseq'ue'nt to the termination of hisemployment; The question was whether the premises occupied by the petitionerwere Government Quarters. After acquisition of the business in 1979, thecompetent Authority entered into a Joint Venture. Agreement'with a firm calledLakshmi on 22.6.1980.
Held :
'Two requirements should be satisfied for premises to be 'considered asGovernment Quarters.'■."•
. i. The building, room or other accommodation should be occupied orused for the purpose of residence… •
if. It must be provided by or on behalf of the Government or a publiccorporation to any person.
110
Sri Lanka Law Reports
(1989/ 1 Sri L R.
When a vesting order was made in terms ol the Business Undertaking(Acquisition) Act the petitioner became an employee of the Governmentoccupying quarters owned by the Government.
The quarters, did not. cease to be government quarters upon the JointVenture Agreement entered into on 22.6.1980 with Lakshmi because the latterwas to provide only technical and managerial services and it cannot becontended that it (Lakshmi) provided quarters for the petitioner.
APPLICATION for certiorari to quash notice to quit quarters.
R. Weerakoon for-the petitioner'
S~Marsoof S.S.C. for respondent
Cur. a'dv. vult.
July 29. 1988
S.INI. Silva, J.
The Petitioner hasfiled this application for a Writ .of Certiorari,.to issue'on the Respondent, to quash notice to quit dated 4-5-1982 sent in terms of section 3 of the Government Quarters(Recovery of Possession) Act No. 7 of 1969. The notice has beenproduced marked " B " and it requires the Petitioner and hisdependents'to vacate-premises bearing No. Cl of the Workers' Quarters of the Pugoda Textile Mill of-the Government ownedBusiness Undertaking of the National Textile Corporation, withintwo months of 1 0-5-1 982. The notice has been issued by theRespondent as the-Secretary, Ministry of Textile Industries.
The facts, as admitted by both parties at the stage'of hearingare as follows.'
The Petitioner was an employee of the National TextileCorporation established under the State Industrial CorporationsAct No. 49 of 1 957. The Acting Minister of Finance by ordermade in'terms of section 2 (.1) (b) of the Business Undertakings(Acqusition) Act No, 35 of 1971 vested in the Government witheffect -from'" 18-10-1.979, the business undertaking of theNational Textile Corporation. The vesting' order published inGazette Extraordinary. No. 58/6 of 18-10-1979 is producedmarked- " RT ". In terms of section 4 (1) of the Business
CA
Piya/ilake v. Vincent Pandita ISilva, J.)
7 7 7
Undertakings (Acquisition) Act. the rights and liabilities, under .the contract of employment of the Petitioner which wassubsisting on the date of the vesting order, vested in theGovernment with the Business Undertakings of the NationalTextile Corporation. Although the Petitioner had taken up acontrary position' in his pleadings, at the stage of hearing hisCounsel conceded that' as a result of the vesting order, thePetitioner became an employee of the. government.. On 21-3-1980. the appropriate Minister acting in terms of section 1.9 ofthe' Finance Act No. 38 of- 1971 dissolved the National TextileCorporation. On ,15-3-1982.. the Petitioner’s services wereterminated by the Mill Manager of the Pugoda Textile Mill, byletter marked "A”. The letter states.-that-.a formal disciplinaryinquiry was held on charge sheet dated 3-1 1-1 981 and that thePetitioner was .found guilty of charges Nos. 1-6-*an.d .8.. ThePetitioner made an application to the Labour Tribunal'.-Colombo.-in terms of section 31 B of the Industrial Disputes Act. seekingrelief against the termination of employment. –
In the. petition and affidavit filed in this Court, the Petitioner hasspecifically.averred that the building occupied-by him ceased tobe government-quarters as defined in the Government Quarters(Recovery of Possession) Act upon the 'dissolution of .the NationalTextile' Corporation on 21-3-1980. He has stated that thebuilding is a facility provided to him by his employer being a" private company ". To support this position he filed a furtheraffidavit in.September 1 984 to which he annexed marked " ATa copy of a Joint Venture Agreement entered into between theCompetent Authority of the Government Owned BusinessUndertaking of the National. Textile Corporation and LakshmjTextile* Exporters (Private) Ltd. At the hearing. Counsel for thePetitioner deviated from the pleadings and made a submissionon the following lines. That, upon the Joint Venture Agreementmarked " A1 " being entered into, the Petitioner ceased to be anemployee of the Government and became-an employee of. ” Lakshmi ” Ltd: or in the alternative an employee of the'JointVenture consisting of " Lakshmi " Ltd. and the Government. Onthis basis Counsel 'contended that the building occupied by, the.Petitioner ceased to be government quarters since it was-providedto. him .by "..Lakshmi " or the Joint.Ve.ntu.re of which ".Lakshmi "is a partner.
112
Sri Lanka Law Reports
1198911 Sn L. R.
The Respondent admits that a Joint Venture Agreement wasentered into by the Competent Authority with " Lakshmi “.However, he has stated that the Agreement only entrusted themanagement of the Textile Mill to " Lakshmi ”, Even the IndianNational who is the General Manager of the Textile Mill has beenemployed by the Government Owned Business Undertaking onsecondment from " Lakshmi " and his salary is paid byGovernment. As regards the Petitioner, it is stated that he was anemployee of the government for all purposes up to thetermination of his services.
' According to the long title to the Government Quarters(Recovery of Possession) Act, its provisions are intended for therecovery of possession of quarters provided by or on behalf ofthe government or a Public Corporation for the occupation ofpersons. Sectipn 3 of the Act empowers a compentent authorityto serve a notice to quit on the occupier of any governmentquarters. The " government quarters " is defined in section 9 ofthe Act as follows :
Government quarters " means any building or room orother accommodation occupied or used for the purposes ofresidence which is provided by or on . behalf of theGovernment or any public corporation to any person andincludes any land or premises in which such building orroom or other accommodation is situated, but does notinclude any house provided .by the Commissioner forNational Housing to which Part V of the National Housing• Act applies. "
"According to this definition two requirements should besatisfied for' a premises to be considered as Governmentquarters, viz
(i) that the -building, room or other accommodation be• occupied or used-for the purpose of residence. ' •<
(ii.)' that it is provided by or on behalf of the Government or apublic corporation to any person.
CAPiyatilake v Vincent Pandna < Silva JI
113
Quarters provided by public corporations was brought'withinthe scope of the Act by the amendment No, 8 of -d981‘..Therefore, at the time of the acquisition in-October T979. thequarters occupied by the Petitioner .were not • Governmentquarters as defined in the . Act. The question is-whether thesequarters became Government quarters after the acquisition' ■
.'’..v- .' *•.-• ‘
An examination of the provisions of the Business Undertakings(Acquisition) Act shows that a vesting order made in terms of theAct produces the following legaf consequences, that are relevant.to the above question, viz :
. t’hat the movable; and immovable property o'f the,National
■' . Textile, Corporation'(including the quarters) vests in the
Government free from all encumbrances — (Section'2 (2)
read with Section 1 7)..
-1 ' . .
that the rights and liabilities under subsisting contracts.ofthe National Textile Corporation (including the contract ofemployment of the Petitioner) vests in'the Government, •
.. ■ The combined effect of these- consequences is that upon thevesting, the Petitioner became an employee .of-, the Governmentoccupying quarters ovvhed by the Government. Since.- thePetitioner continued to occupy the quarters- for the purpose of •employment it has to be .inferred! that the quarters were providedto him by or on behalf-of-.the. Government. Thus the quartersreferred in the notice .to quit imarked "B " wer.e Gpvernmentquarters as defined in the Act after the acquisition in' October1979.'- ., j . ', _.r
The. next. question is whether-the- quarters ceased-to be.Government quarters upon the Joint.Venture'Agree.ment marked."AT" being entered into on 22-6.-1980. The legal basis onwhich-the premises became Government quarters is relevant to■this’question. It has to be examined whether the Agreement-." A1 " altered, the' legal consequences based, on the provisions ofthe Business Undertakings (Acquisition) Act to such extent thatthe premises ceased to be Government quarters.
7 74
Sri Lanka Law Reports
(19891 7 Sri L. R.
The Agreement has been entered into by the CompetentAuthority (appointed in terms of the Regulations for themanagement and administration of the affairs of the undertaking)and " Lakshmi Parties have not produced the Regulation bywhich the competent authority was appointed. In the absence ofa submission to the .contrary by the Respondent I have assumedthat the Agreement was validly entered into by the competentauthority.
Clause " E " of the Agreement (page 9) describes the status ofthe parties as follows :.
" i. The Joint Venture shall consist of the Government 'Undertaking which shall be the Investing Partner and thesaid Lakshmi-which shall be the Managing Partner :
ii; the said Lakshmi as the Managing Partner shall be solelyresponsible for the management and running of the. Mill ;
Sub clauses (pages 10 to 14) bind "Lakshmi" to providespecific management.and technical services.
Clause L (V1) specifically provides that " Lakshmi " shall notbe liable for any loss that may result from the working of theMill. Sub.clauses (V-T1) and (V111) however, provide for thepayment of^15% and 20% of the profit to " Lakshmi " forManagement services and. Technical services in addition to asum of U.S. $ '45.000 also payable under the Agreement.
Thus it is clear that under the Agreement " Lakshmi " does■ not contribute any capital to the business but provides onlytechnical and managerial services and receives 35% of theprofiT (in addition-to other payments). Therefore it can never becontended; that " Lakshmi provided the quarters to thePetitioner. It cannot provide-what it does not have. '•
Clause ‘ P ' (page 22) which states that Lakshmi " shall'continue to employ the existing staff of the Mill; and permitthem to continue with existing facilities;; has to be construed within
SCChandrasiri v. The Attorney-Genefai (Fernando. J.)115
the framework of the Agreement. It does not mean, as contendedby Counsel for the Petitioner that " Lakshmi " becomes theemployer of the staff. It means only that " Lakshmi " as Managercannot insist on the staff being discontinued or the facilities ofthe staff, being withdrawn. Facilities.•would include the quartersprovided by the Government as the employer. This clause in factcuts across the argument of Counsel, Therefore the answer tothe question is that as a result of the agreement marked ' A'entered into' in June. 1980. the quarters provided to thePetitioner did hot cease to be Government quarters as defined inthe Act. Admittedly, the Respondent is the competent authority interms of the Act and I hold that, he acted within his power inserving notice marked ' B ' on the Petitioner.
Accordingly I dismiss the application but I would make noorder as to costs.
Application dismissed