2 Sri LR
Sri Lanka Law Reports
v.THE BOARD OF INVESTMENT OF SRI LANKAAND OTHERS
COURT OF APPEALGUNAWARDANA, J. (P/CA)
CA NO. 363/99JUNE 28. 2001
Leave of absence from Sri Lanka – Medical leave – Medical certificate notconforming to the requirements of the '£' code – S. 23.9, s. 23. 9.1 – No obligationto do what is impossible – Is the employee on a contract?
The petitioner had been granted leave of absence from the Island from 01. 01.98 to 30. 06. 98. The petitioner by his letter of 01. 07. 98 asked for medicalleave for a period of 3 months from 01. 07. 98 to 30. 09. 98. The respondentrefused to accept the medical certificate as it did not conform to the requirementsof the ’E‘ code.
In terms of s. 23. 09. 01, any medical certificate in support of his illness shouldbe obtained from a Medical prectitioner nominated for that purpose by the SriLanka Mission or the approved agent. A vacation of post notice was served onthe petitioner.
The petitioner contended that, there was no Doctor nominated by the Sri LankaHigh Commission in the State in Australia where he was staying.
The relevant section requires the officer to produce a medical certificatefrom the Doctor nominated by the Sri Lankan Mission. When there is nosuch nominated Doctor it is hardly necessary for it to be stated in thesection itself that the officer need not produce a medical certificate fromsuch a Doctor for one does not labour the obvious. It is in a way irrationalto do so.
The wrong construction of a law or regulation constitutes an error of law,as does the erroneous interpretation of s. 23. 9 of the ‘E’ code whichprompted or caused the respondents to reject the relevant medical certificate.
Sirigampola v. The Board of Investment of
Sri Lanka and Others (U. de Z. Gunawardana, dP/CA)
Per Gunawardana, J. (P/CA)
"Laws and regulations have to be interpreted with wisdom born of knowl-edge, experience and sagacity, one must adopt a benevolent and rationalapproach, not an exceedingly wooden-headed one devoid of humanism.*
The service or employment of the petitioner under the 1st respondent wasprudent to an appointment on the terms of a letter of appointment andnot a contract because there is nothing consensual about the letter ofappointment.
APPLICATION for writ in the nature of Certiorari/Mandamus.
Cases referred to :
Neidra Fernando v. Ceylon Tourist Board – CA 1343/98 – CAM.
ft v. Civil Service Appeal Board Ex parte Bruce – 1988 3 ALL ER 686 (QB).
Elmo Perera with Ms. P. Wanigaratna for petitioner.
Y. Wijethilake DSG, for 1st and 4th respondents.
Cur. adv. vutt.
August 07, 2001
U. de Z. GUNAWARDANA, J. (P/CA)
The petitioner, who was an employee of the 1st respondent (Boardof Investment of Sri Lanka) had filed this application seeking anorder of certiorari to quash the vacation of post notice (P16) dated10. 11. 1998 served on him which notice had been signed by the2nd respondent (Chairman of the BOI). The background facts are asfollows: the petitioner had been granted leave of absence from theIsland from 01. 01. 1998 to 30. 06. 1998 which leave was soughtby the petitioner to enable him to accompany his wife to Australia.Accordingly, leave was granted and the petitioner proceededto Australia.
Thereafter, the petitioner had by his letter dated 01. 07. 1998 askedfor medical leave for a period of three months from 01. 07. 1998 to
Sri Lanka Law Reports
 2 Sri LR.
30. 09. 1998. The medical certificate (2R1) which was annexed tothe said letter 01. 07. 1998 was recalled by the petitioner as therespondents refused to accept the same on the basis that it did notconform to the requirements of the Establishments Code. The peti-tioner submitted another medical certificate dated 23. 09. 1998 issuedby the same doctor which medical certificate recommended six weeks'leave from the date of the certificate. This medical certificate was alsonot entertained by the respondents who stated that it also did not 20comply with the requirements of section 23 : 9 of the EstablishmentsCode which is as follows: 23 : 9 "If an officer falls ill while on leaveabroad for a week or more he should report the fact to Sri LankaMission in that country, if any or the approved Agent of the Sri LankaGovernment, if any. In case of prolonged illness, he should keep hisHead of the Department also informed. Then, 23 : 9 :1 states thus:"Any medical certificate required to be furnished by the officer to hisHead of Department in support of his illness which should be obtainedat the officer's own expense, should be from a medical practitionernominated for that purpose by the Sri Lanka mission or the approved 30agent as the case may be".
The petitioner's position is that there was no doctor nominated bythe Sri Lankan High Commission in the state in Australia where hewas staying which position had not been contradicted. It is worthpointing out that the petitioner has got the 2nd medical certificate dated23. 09. 1998 certified by the Department of Foreign Affairs and Tradein Australia. Law does not require anyone to do impossible thingsor there is no obligation to do what is impossible. It is now recognisedthat a thing is impossible in the legal sense or legal contemplationwhen it is not practicable and can be done at excessive and unrea- 40sonable cost, (vide Black's Law Dictionary). As the maxim goes.Impossibilium nulla, obligatio est. Laws or regulations, even those inthe musty and mouldy Establishments Code, are made with a viewto those cases which happen most frequently and not to those whichare of rare or accidental occurrence. One cannot forget the generaltruth ingrained in the oft-quoted proverbial remark: "Jus constitui
Sirigampola v. The Board of Investment of
Sri Lanka and Others (U. de Z. Gunawardana, J. P/CA)
oportet in his quae ut plurimum accidunt non quae ex imopinatd'.Laws and regulations have to be interpreted with wisdom bom ofknowledge, experience and sagacity. One must adopt a benevolentand rational approach, not an exceedingly wooden-headed one, sodevoid of humanism.
The solution must emphasize and recognize common humanneeds, if it is reasonably possible to do so, within the framework ofthe law, and avoid seeking solely legalistic ways, of solving humanproblems. It is said that the law does not define exactly but trustsin the judgment of the good Judge. In fact, the relevant section ofthe Establishments Code require the officer to report his illness tothe Sri Lanka mission in that foreign country only if there was one(such mission). Of course, there was a mission representing Sri Lanka,but the mission had omitted to nominate a medical practitioner in eothat state for purpose of issuing medical certificates.
It cannot realistically be thought section 23 : 9 : 1 required anofficer who falls ill in a foreign country in which the mission had notnominated a doctor to furnish a medical certificate in the mannerspecified or required in that section. The relevant section requires theofficer to produce a medical certificate from the doctor nominated bythe Sri Lanka mission. When there is no such nominated doctor itis hardly necessary, for it to be stated in the section itself that theofficer need not produce a medical certificate from such a doctorfor one does not labour the obvious. It is, in a way, irrational to do 70so. The wrong construction of a law or regulation constitutes anerror of law, as does the erroneous interpretation of 23 : 9 of theEstablishments Code which prompted or caused the authorities(respondents) to reject the relevant medical certificate.
One must also take into consideration the fact that no attempthad been made to call in question the genuineness of the medicalcertificate and it was not even suggested that the petitioner's illnesswas simulated. The petitioner had substantially complied with
Sri Lanka Law Reports
12002] 2 Sri LR.
section 23:9 of the Establishments Code. In the circumstances, he
couldn't possibly have done more.
It is in situations such as this that the Court has to act on Bassanio'splea to Portia when Shylock made his demand for his pound of flesh:"And I beseech you, wrest once the law to your authority: to do agreat right, do a little wrong, and curb this cruel devil of his will".
Furthermore, the employment of the petitioner by the 1st respond-ent cannot strictly be said to be one under a contract. The positionthat arises in this case is the same as that which arose in NeidraFernando v. Ceylon Tourist Board.01 To cite the relevant excerpt frommy own judgment in that case: "It can, at least, be arguably said that,in fact, the petitioner had no contract of employment, as such withthe Ceylon Tourist Board (1st respondent). In R. v. Civil Service AppealBoard ex parte Bruce a distinction, (however tenuous it may appearto be to the uninitiated or to those not admitted to or conversant withthe finer points of Administrative Law) had been drawn betweenservice pursuant to a contract of employment on the one hand, andservice merely by virtue of an appointment on the terms of a letterof appointment on the other. In that case May, LJ. held: that therewas a sufficient public law component or element connected orassociated with the dismissal of the executive officer concerned – sincethe service of the applicant (officer) arose out of an appointment andnot in consequence of a contract, as such. Notwithstanding thatfeature, the Court, in that case, refused to grant judicial review ofthe decision of the Civil Service Board dismissing the applicant,because it was felt that the most appropriate forum for resolvingdisputes arising out of that particular dismissal was an industrialtribunal.
Examination of the letter of appointment dated 03. 03. 1968 (byvirtue of which, admittedly, the service of the petitioner under theCeylon Tourist Board (1st respondent orginated) shows that there isno consensus, mutuality or common agreement about the terms on
CASirigampola v. The Board of Investment of
Sri Lanka and Others (U. de Z. Gunawardana, J. P/CA)107
which the petitioner had been appointed – consensus being the signalquality of a contract. The letter of appointment is all one-sided orunilateral, if I may say so – the Ceylon Tourist Board (1st respondent)prescribing all terms of the appointment, which terms were imposedfrom above and had to accepted by the petitioner, willy-nilly. In thisstate of things, it cannot be said that the petitioner's service with orunder Ceylon Tourist Board arose out of any contract of employment,as such, and the legal relationship that arose out of that form of servicecould not be equated to a contract".
(The above is an excerpt from my judgment in Neidra Fernando case 120(supra)).
The examination of P1 dated 03. 01.1991 clearly places one matterbeyond controversy, that is, that the service or employment of thepetitioner under the Board of Investment of Sri Lanka (1st respondent)was pursuant to an appointment on the terms of a letter of appointmentand not to a contract because there is nothing consensual about theaforesaid letter of appointment (P1).
For the foregoing reasons I do hereby grant an order of certiorariquashing the vacation of post notice (P16) dated 11. 11. 1998. Inconsequence, the respondents are directed by an order of mandamus 130to reinstate the petitioner in service. The 1st respondent is directedto pay the petitioner Rs. 10,500 (Ten thousand five hundred) as costs.