024-SLLR-SLLR-2004-V-3-PREMARATNE-v.-PEOPLES-BANK-AND-OTHERS.pdf
156
Sri Lanka Law Reports
[2004] 3 Sri L.R
PREMARATNEv
PEOPLE’S BANK AND OTHERSCOURT OF APPEALTILAKAWARDANE, J. (P/CA).
WIJEYARATNE, J.
CA1093/2000.
OCTOBER 22, 2002.
Writ of certiorari/mandamus – Extension of employee not granted – Does writlie to quash such decision? – Public and Private Law remedies?
The petitioner sought to quash the decision of the 1st respondent Bank not togrant an extension of service, and a mandamus directing the respondents toextend his service.
Held:
The extension of service beyond 55 years of age is governed by twoBank Circulars; the petitioner has no right to extension of his service.
The two circulars governing the extension of service of employees ofthe 1st respondent Bank, are circulars whose provisions areembodied in and interwoven with the terms of employment.
The subject matter of the present application being enforcement of acontract of employment of the petitioner with the respondent bankcannot be the subject of judicial review.
APPLICATION for a writ of certiorari/mandamusCases referred to:
Pinnawala v Sri Lanka Insurance Corporation Ltd and others -1997 3 Sri LR 85
Surangani Marapone v Bank of Ceylon and others 1997 3 Sri LR 156
Piyasiri v People’s Bank 1989 2 Sri LR 47
Ariyapala Guneratne v People’s Bank 1986 1 Sri LR 338 (distinguish)
Mendls v Seema Panadura Janatha Santhaka Pravahana Sevaya1995 2 Sri LR 284.
CAPremaratne v People’s Bank and Others157
(Wijeyaratne, J.)
L.C. Senevlratne PC for petitioner.
Wijedasa Rajapakse PC with R. Dinesh for respondents.
February 10, 2003.
WIJEYARATNE, J.The petitioner preferred this application seeking the substantive 01relief of a mandate in the nature of a writ of certiorari quashing thedecision of the first respondent bank not to grant an extension ofservice (letter marked I) Also sought is a writ of mandamusdirecting the respondents to extend his service as per the circularsmarked J2.
The petitioner joined the first respondent bank in the year1969 as a clerk grade VI. Over the period of several years ofservice expanding over thirty-one years he secured gradualpromotions to the higher grades. At the time he was refused 10extension of service that is in the year 2000 and sent on retirementat the age of 55 years, he was attached to Kuliyapitiya branch ofthe first respondent bank as an officer of grade III class 2. Duringthis period of service the petitioner received all due increments ofsalary. His service to the bank during this period was in severalplaces and was in different capacities. All these are facts admitted.
The petitioner avers that in terms of circulars marked J1 andJ2 an officer in the service of the first respondent bank is entitled toapply for an yearly extension of service upon reaching the retiringage of 55 years. Accordingly the petitioner who was due to reach 20the age 55 years on 05.10.2000, applied for an extension of hisservice by one year up to 05.10.2001.
After the submission of his application for the extension ofservice, the petitioner states, the Regional Manager of the firstrespondent bank by his letter dated 13.06.2000 marked G informedthe petitioner that his salary increment for the year 01.07.1999 to01.07.2000 had not been recommended in view of the report of theKuliyapitiya Branch Manager. The petitioners appeal on the orderof the regional manager, according to his information available atthe time this application was made, was successful.30
158
Sri Lanka Law Reports
[2004] 3 Sri L.R
His application for extension of service was responded to withletter dated 21.07.2000, marked I, informing the bank’s decision toretire him upon his reaching the age of retirement at 55 years.
The petitioner preferred this application on the basis that suchdecision is;
Without reason
Without the petitioner being informed of the purportedreport of the branch manager supposed to have beenconsidered by the panel consisting the 4th to 8threspondents appointed to determine applications for 40extension of service,
Without the petitioner being heard in his right against anyallegation; and
That the decision of the panel not to grant extension ofservice to him was made unilaterally and in violation ofprinciples of natural justice, acting arbitrarily,unreasonably, ultra vires their powers and in abuse ofpowers.
The response of the first respondent bank to these severalaverments was that the bank nor the several members of the panel 50appointed to determine applications for extensions of service, werenot required in law to give reasons for the refusal of extension ofservice which are considered in the light of the relevant circularsmarked J1 and J2 and the petitioner applying for extension ofservices has no right to be heard; nor are the respondents who indetermining such applications exercising the discretion of the bankin relation to and upon consideration of an applicant’s servicerecord not obliged to hear an applicant. The respondent states thata writ will not lie as their function is not quasi-judicial in nature.
The petitioner concedes that extension of service beyond 55 60years of age is governed by the two circulars marked J1 and J2 andthe petitioner has no right to extension of his service. Yet thepetitioner stresses that he has a right to make an application forextension of his service in terms of the said circulars and claimsthat he is entitled to have his application considered fairly,
CAPremaratne v People’s Bank and Others159
(Wijeyaratne, J.)
reasonably and in the proper way, by those determining the sameexercising their discretion.
The petitioner in support of his contention relies on thedecisions ot, Pinna wala v Sri Lanka Insurance Corporation Ltd andOthers '’’and Surangani Marapone v Bank of Ceylon and Others P)
Upon a reading of those two decisions it is clear that in boththese cases what the Supreme Court considered was the fact thatthe authorities made their respective decisions in relation toallegations made against the respective petitioners in those cases.There is no doubt that in such inquiries or determinations, thereasons for same should be disclosed. In the instant case the paneldetermining extension of service was not inquiring into allegationsagainst the petitioner who in such an event, should have beenheard and given reasons for the decision. What was considered bythe panel determining the extension of service was only a report onthe service record of the applicant which consisted of R1 to R6 onthe conduct of the applicant over the period of past several years,as an employee of the bank and such service record was found inhis personal file having been embodied there with due andcontemporaneous notice to the applicant who does not dispute thesame. The panel determining the extension of service, according tothe two circulars governing the matter in issue, was required tomake an assessment of the service of the applicant in relation tohis past conduct and not to inquire into his conduct in relation toany particular allegation. An assessment of the work and conductof an employee can never be reasonably expected to be done inconsultation with the employee concerned because it would alwaysbe a subjective test on the established record of service doneobjectively to determine the goodness of the record andessentialness of his service to the institution, the bank, accordingto the accepted norms and standards of work. To give an applicantthe right to be heard would mean to allow him to judge his owncause, because it cannot be reasonably be expected of a humanbeing to help determine matters without favour to his interests ashe claim in the matter to his economic benefit. Accordingly I am ofthe view that the two decisions cited above have no application tothe facts of the instant case.
70
80
90
100
160
Sri Lanka Law Reports
[2004] 3 Sri L.R
The respondents argued that the impugned decision is notamenable to writ jurisdiction of this court for the reason that thesubject matter being a contract of employment, does not comewithin the realm of public law, but is a matter governed by privatelaw only. The respondents relied on the decision of Piyasiri vPeoples Bank P) holding that the respondent bank is not a publicbody but basically a commercial bank.
The petitioner argues that in the making of the decision of the noabove referred case, the Court of Appeal omitted to consider thedecision of Ariyapala Guneratne v Peoples Bankw which is ajudgment delivered by a bench of five judges of the Supreme Court.
This court finds that the decision of the Supreme Court isdistinguishable because the issue considered was in relation to thealleged violation of fundamental rights only. It was held that:
“the analysis of the law should be on the basis that theimpugned acts or provisions constitute an invasion offundamental rights and not on the basis that they fallwithin the exclusive domain of the private law of 120employment”.
In the above decision the Supreme Court at no stage ruledthat what falls within the exclusive domain of the private law ofemployment is amenable to writ jurisdiction or public law remedies.
But for the limited purpose of the application of the provisions ofsection 18(2) of the 1972 Constitution, the concept of ‘State’ hasbeen extended to include ‘almost any institution performing publicfunctions’ and to that end the analysis of the law should be on thebasis that the impugned acts or provisions constituted an invasionof fundamental rights’. The issue involved in the present application 130is not one falling within the ambit of fundamental rights, but a matterof terms of employment governing the extension of service beyondthe stipulated age of retirement. The petitioner unequivocallyconcedes that he has no right of extension of his service.
The two circulars governing the extension of service ofemployees of the first respondent bank (marked J1 and J2) are oncirculars whose provisions are embodied in and interwoven withthe terms of employment. They are not even regulations, which hasa statutory flavour at least, as to be amenable to the public lawremedy of judicial review. In this regard the more recent decision in ho
CAPremaratne v People’s Bank and Others161
(Wijeyaratne, J.)
the case of Mendis v Seema Sahitha Panadura Janatha SanthakaPravahana Sevaya m is more relevant.There it was held;
“(iv) what is here sought to be done is the enforcement ofa contract of employment; contracts of employment areenforceable by ordinary actions; and not by judicialreview. In the circumstances the dispute as to thecontract of employment is solely a matter within thepurview of private law and not a matter for judicialreview”.
In deciding so, S.N.Silva, J., (as he then was) 150commented that
‘The trend of authority is thus one way. Learned counselfor the petitioner has not been able to cite any authorityin support of his claim that matters pertaining to acompany registered under the Companies Act or matterspertaining to a contract of employment could be subjectof judicial review".
Such authority is not cited in the present case either.Accordingly this court holds that the subject matter, of the presentapplication, being enforcement of a contract of employment of the 160petitioner with the first respondent bank, cannot be the subject ofjudicial review. In view of the above determination it is notnecessary to examine the effect of remedy being granted.
In the result the application of the petitioner is dismissed withcosts fixed at Rs. 3000/-.
SHIRANEE TILAKAWARDANE, J. (P,C/A) -1 agreeApplication dismissed.