013-SLLR-SLLR-1982-1-Samarasinghe-V.-De-Mel-and-Another.pdf
CA
Samarasinghe v. De Mel
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COURT OF APPEALSamarasingheV.Oe Mel and AnotherC.A. Application No. 866/76
Mandamus – Termination of Workmen (Special Provisions 'Act) Section'2(2)'-Power of Commissioner of Labour to make award – Circumstances i inwhich Writ of Mandamus would not be available.
The Petitioner was an employee of Messrs Harrison and Crossfield(Colombo) Ltd. Business declined in 1975 when estates were taken overby the Land Reform Commission and for diverse other reasons. .In thesecircumstances Messrs H & C wrote to the.: Commissioner of Labour interms of the Termination of Workmen (Special Pr6visions)Act requestingpermission to terminate services of Petitioner and a few othe >s. Commissionerof Labour granted permission subject to the 'condition, that gratuity*,’ leavepayments and E.P.F. payments be made.. (No mentiqnwas priade.iofcompensation). Messrs. H & C complied with the conditions and terminatedthe Petitioners services. The Petitioner complained that the Commissionerhad a statutory duty to award compensation also in terms of the Act andapplied for a Writ of Mandamus on the Commissioner of Labour directinghim to order payment of compensation.
Held (1) that in terms of section 2(2) the Commissioner of Labourhad a power to award gratuity or compensation or both gratuityand compensation.
(2) that his order was ex facie within the power conferred onhim by Statute and hence no Writ of Mandamus would beavailable against the Commissioner of Labour.
Application for writ of MandamusBefore:Atukorale, J. &Tambiah, J.
CounselH.L. de Silva, Senior Attorney-at-Law, with
S. Nandalochana for the PetitionerS. Ratnapala, State Counsel, for the 1st Respondent
W. Jayewardene, Q.C. with Mark Fernando,
W. Siriwardene and R. Perera for the 2ndRespondent
Argued on:11.01.1982Decided on:17.02.1982Cur. adv. vult.
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TAMB1AH J.
The petitioner was employed by Messrs Harrisons & Crosfield (aCompany incorporated under the Laws of the United Kingdom) asan Executive Assistant in the Chemical Department of the Firm from1st November, 1960. His duties related to Agro-Chemical and VeterinaryChemical sales promotion and conducting of field trials. In the year1972. he was transferred to the Import Department and at this time,it would appear, that the Import and Chemical Department werecombined under a common head. The petitioner's function relatedto the import and local procurement of estate supplies, local purchaseof fertilisers for tea estates, import and distribution of industrialchemicals and import and distribution of veterinary chemicals.
In about February, 1975, the business of the company was transferredto the 2nd respondent-company, in compliance with the provisionsof the Companies (Special Provisions) Law No. 19 of 1974. Thepetitioner, along with the other staff, was transferred to the 2ndrespondent-company on the same terms and conditions, and he wasoffered and he accepted employment in terms of a letter dated 20thFebruary, 1975 (PI). The letter (PI) stated that the petitioner willbe attached to the Chemical Department, but that the Companyreserved the right to transfer him to any other Department, shouldthis be necessary in the Company's interests.
At the end of February, 1975, it would seem that on account ofthe reduction of business and for other reasons, the functions pertainingto the procurement of estate supplies, hitherto carried out by thecombined Import/Chemical Department, was brought within the purviewof the Estate Department. The petitioner was transferred to theEstate Department and his revised duties related to estate stafftraining and recruitment, labour welfare and medical facilities, producemarketing, responsibility for overall administration of 7 estates andresponsibility for a pilot project on labour welfare facilities in St.John del Rey Estate.
In October 1975, estates which were managed by the 2ndrespondent-company as Agency House, became vested in the LandReform Commission and the 2nd respondent-company became a
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statutory trustee and managed the estates for and on behalf of theLand Reform Commission. By letter dated 17th March, 1976 (P2a),the 2nd respondent-company wrote to the Commissioner of Labourrequesting his written approval to terminate the services of thepetitioner and others, on the ground of redundancy, as its statutorytrusteeship in respect of some estates had been cancelled on 15thMarch, 1976, and also on account of the impending cessation of thetrusteeship for the remaining estates managed by the 2ndrespondent-company. After inquiry, the 1st respondent grantedpermission to the 2nd respondent-company to terminate the servicesof the petitioner, on the following conditions:-
Gratuity of half-month’s gross salary, per year of service.For this purpose, the last gross salary he was drawingto be taken into account.
His annual leave payments due to him under the Shop.& Office Employees Act; and
The Provident Fund monies due to him.
The petitioner complains that the 1st respondent has a statutoryduty to consider the question of compensation; he has failed andneglected to consider the amount of compensation payable to himon account of his premature termination of service. He wants thiscourt to issue a Mandamus directing the 1st respondent to hold aninquiry into the question of compensation payable to him and makean award which is just and equitable in the circumstances. Thepetitioner is not contesting the- order made by the 1st respondentgranting permission to terminate his employment.
S. 2 (2) (e) and (f) of the Termination of Employment of Workmen(Special Provisions) Act No. 45 of 1971, as amended by the Terminationof Employment of Workmen (Special Provisions) Amendment Law,No. 4 of 1976, now reads as follows:-
S. 2 (2): The following provisions shall apply in the caseof the exercise of the powers conferred on theCommissioner to grant or refuse his approval to anemployer to terminate the scheduled employment of aryworkman:-
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the Commissioner may, in his absolute discretion, decidethe terms and conditions subject to which his approval'should be granted, including any particular terms andconditions relating to> the payment by such employer tothe workman of a gratuity or compensation for thetermination of such employment; and
any decision made by the Commissioner under thepreceding provisions of this subsection shall be final andconclusive, and shall not be called in question whetherby way of writ or otherwise –
in any court, or
in any court, tribunal or other institution establishedunder the Industrial Disputes Act.
It is conceded on all sides that the disjunctive or in s. 2(2) (e)of the Act may be read as “and” so that the Commissioner ofLabour had the power to order both gratuity and compensation, oreither.
Learned Senior Attorney for the petitioner submitted that theStatute requires the Commissioner of Labour to address his mind toboth questions of gratuity and compensation; that the 1st respondenthas not filed an .affidavit denying.the assertion of the petitioner inhis petition that .he has omitted to consider the question of compensation.The 1st respondent, he submitted, had merely adopted an administrativefmrnula, viz, half-month’s salary for each year of service, and appliedit,-generally without considering the particular merits of the casebefore him. Learned Senior Attorney cited passages from de Smith’s“Judicial Review of Administrative Action.
“If a tribunal wrongfully refuses to determine a question thatit is obliged to determine, mandamus will issue to order it tohear and determine the matter. A refusal to exercise jurisdictionmay be conveyed by express words or by conduct. Thus atribunal is deemed to have declined jurisdiction if it fails to.decide the question before it, and instead decides a different
..questionor if it decides by reference to a predetermined
..rule of policy without giving^any genuine consideration to theindividual merits of the case before it A tribunal
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Samarasirighe r. lie Mel (Tambiah. J.)
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entrusted with a discretion must not, by the adoption of ageneral rule of policy, disable itself from exercising its discretionin individual cases. Thus a tribunal which has power to awardcosts fails to exercise its discretion judicially if it fixes specificamounts to be applied indiscriminately to all cases before it:
Again a fa'ctbr that may properly be taken
into account in exercising'a discrfc'lFon may become ah unlawfulfetter upon discretion if it is clcvatefcCto the status of a generalrule that results in the pursuit of consistency at the expense
of the merits of individual cases although it (authority)
is not obliged td’consider every application before it with afully open mind1. It rmust at’feast keep its mind ajar."
(2nd" Edn. Pgs.105. 109, 291. 295)
The lst respondent has ndi'filed his own affidavit. There is howeveran affidavit from the jomi:'Managing Director of the 2nd respondent- company in which Be says that a full and proper inquiry was heldby the 1st respondent arid that he, having considered all the materialbefore him and all the.matters required of him in law. has exercisedhis discretion lawfully and in accordance with the powers conferredon him.
There is no evidence before us that the 1st respondent had fetteredhis discretion by indiscriminately applying a • predetermined rule ofpolicy”, without a consideration of the particular merits of thepetitioner’s case. The proceedings are before us. It would appear thatthe following matters were before him>
The petitioner was 40 years of age and had put in 15years of service.
The petitioner had not applied for employment underthe Land Reform Commission.
The Attorney-at-Law for the petitioner stated that ifadequate compensation was paid, he was prepared toaccept it and leave the employment. He referred to" thecase of the Shell Company employees who were paidtwo months salary for each year of service up io amaximum of 20' years.
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Mr. S.R. de Silva for the 2nd respondent-companyindicated that the Company was unable to make anyoffer of compensation and that he leaves it to theCommissioner to make an appropriate order.Multi-millionaire Companies cannot be equated toHarrisons & Crosfield, he said. In regard to gratuity,he stated, the practice followed is to award one month’ssalary for each year of service,, less E.P.F. contributionsby the employer.
■ The 1st respondent did not give reasons for his order; nor is herequired by the statute to do so, though I must say, it is indeeddesirable if reasons are given. The matter of compensation was beforethe 1st respondent. After inquiry, he has made 3 awards – gratuityat the rate of half-month's salary for each year of service, annualleave payments and provident fund monies without deducting theemployer’s contribution. It must be therefore presumed that headdressed his mind to the question of compensation also, and in theexercise of his discretion elected to make the 3 aforesaid awards butchosen not to grant compensation. Merely because the order doesnot refer to compensation, it cannot be said that the 1st respondenthas failed and neglected to consider the question of compensation.
The petitioner’s application is beset with other difficulties as well.The petitioner has made -W.L.P. de Mel, Commissioner of Labour,the respondent to his application. It is common ground that he hasnow ceased to hold this post and is presently the Secretary, Ministryof Trade. The petitioner has not sought to substitute the presentholder of the ’office. A Mandamus can only issue against a naturalperson, who holds a public office. If such a person fails to performa duty after he has been ordered by Court, he can be punished forcontempt of Court. (See, Haniffa v. The Chairman, U.C. Nawalapitiya,66 NLR 48). Before this Court issues a Mandamus, it must besatisfied that the respondent will in fact be able to comply with theorder and that in the event of non-compliance, the Court is in aposition to enforce obedience to its order. Mandamus will not, ingeneral, issue to compel a respondent to do what is impossible in
law or in fact. Thus, it will not issue to require one who
is functus officio to do what he was formally obliged to do.” (deSmith, 2nd Edh. 581). So it seems to. me, that even if the petitioner’sapplication succeeded, the issue of a Mandamus would be futile.
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Samarasinghe v. De Mel (Tamhiah, J.)
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S. 2(2) (f) of the Act contains the expression “shall not be calledin question whether by way of writ or otherwise, in any Court, etc."S. 22 of the Interpretation (Amendment) Act No. 18 of 1972 providesthat where such a expression appears in any enactment in relationto any order or decision etc. which any person, authority or tribunalis empowered to make or issue under such enactment, no court shall,in any proceedings and upon any ground whatsoever, have jurisdictionto pronounce upon the validity or legality of such order, decisionetc. made or issued in the exercise or the apparent exercise of thepower conferred on such person.authority or tribunal. The provisoto the section empowers the Supreme Court to issue writs (a) wheresuch order was ex facie not within the power conferred on suchauthority, or (b) where the rules of natural justice had not beencomplied with or (c) where there had ben no confirmity with anymandatory provision of law which was a condition precedent to themaking of such order.
In Jamis v. The Board of Review (Paddy Lands) and another,(1978 – 79, 2 Sri Lanka L.R. Vol. II, C.A., Part 4, 123), Wimalaratne.P. examined the provisions of s. 22 of the Interpretation (Amendment)Act, and said (p. 129), “That Act expressly provides that where a‘no certiorari’ clause is contained in a Statute, a determination couldbe questioned if and only if, the conditions specified in the provisoto s. 22 have not been satisfied."
Learned Queen’s Counsel who appeared for the 2nd respondentcompany contended that , by reason of the preclusive clause in s. 2(2)(f) of act, No. 45 of 1971, the petitioner could not have questionedon certiorari, the, order made by the Commissioner. By a Mandamus,he is now seeking indirectly to call into question the decision of the1st respondent, and this he cannot do. I agree with this submission.
What is the petitioner seeking, to achieve by his application? Avariation of the order, by the addition of compensation. Then is henot calling into question, the order of the 1st respondent? If thisCourt were to issue a mandamus, then if has to be on the footingthat the 1st respondent’s Order is defective, in that, he has failedto award compensation. This would be to call into question, theorder of the 1st respondent. “There is a general rule in the constructionof Statutes that what a Court or person is prohibited from doingdirectly, it may not do indirectly or in a circuitous manner (per•?-'.-,«r:a»av:ckram3. J. in Bandaranayake r. Weeraratne & others (1981.
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1 Sri Lanka L.R., Vol 1, S.C., Part I, at p. 16). Bindra in his‘Interpretation of Statutes’ (6th Edn., at p. 145) commenting on thisrule says – “The maxim means that when anything is prohibited,everything by which it is reached is also prohibited.”
In Ratnasekera v. Dias Abeysinghe (75 NLR 572) the Commissionerof Elections acting within the powers conferred on him by the Ceylon(Parliamentary Elections) Order in Council, disallowed the applicationof the Ceylon Independent Party to be recognised as a political party.A mandamus was sought to compel the Commissioner to treat theparty as a recognised political party. It was held that as the Commissionerhad ex facie acted within the powers conferred on him by the Statute,the applicants cannot avail themselves of the proviso to s. 22 of theInterpretation (Amendment) Act, No. 18 of 1972 to invoke thepowers of the Court by writ of Mandamus. This case, it seems tome, is authority for the view that if a person acts ex facie withinthe powers conferred on him under a Statute, mandamus will notgo’against such person..1 Perhaps, if there is a total failure to exercisea power, proviso ‘(a) to s. 22 of Act. No. 18 of 72 would not excludethe remedy of'Mandamus. Iri the case before us, it cannot be saidthat the 1st respondent had completely failed to exercise his power.He-'had!the: power, in terms of s. 2 (2) (e) of Act No. 45 of 1971,to'order gratuity or compensation or both. He awarded gratuity andother reliefs but not compensation. The order he made is ex faciewithin the power conferred on the 1st respondent by Act No. 45 of1971 and Mandamus therefore will not be available against him. InJamis’ case (supra) Wimalaratne, P. observed (p. 128)-“The bodymust be vested with legal authority to decide. If it is so vested withauthority, an order, even if erroneous in fact or in law is yet capableof legal consequences, because in the words of Lord Radcliffe, ‘it
bears no brand of -invalidity upon its forehead’ Is it
(order) ex facie outside the enabling power? If so, it is a nullity.Or is it within the four comers of the enabling law ? If so, it is anorder which acquires a certain immunity from judicial review ’
Finally, there remains the question of delay. The impugned orderwas made on 28th April, 1976. The appliction for Mandamus hasbeen made on 22nd November, 1976, about 7 months after the saidorder. The petitioner has not ■sought to explain his delay. On theother hand, it is th~-^pondent-company’s position that durinr
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Sumarasinghe v. De Mel iTambiuh, J.)
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this period, it had acted on the basis that all its liabilities in respectof all matters connected with and arising out of the termination ofservices of all staff, as' a result of the take over of estates, havebeen finally settled and has reorganised its business affairs on thesaid basis. (To grant the relief prayed for would cause prejudice tothe 2nd respondent-company.
For the reasons stated, the application is refused, but consideringall matters, I make no order as regards costs.
ATUKORALE, J. – I agree.Application Refused.