818 WANASUNDERA, J.—Ceylon Co-operative Employees Federation v. Co operative
1976 Present: Thamotheram, J., Wanasundera, J., and
Co Lin-Thome, J.
THE CEYLON CO-OPERATIVE EMPLOYEES FEDERATION,Petitioner, and THE CO-OPERATIVE EMPLOYEESCOMMISSION, Respondent
S. C. Application 222/76—In the matter of an Application for amandate in the nature of a Writ of Certiorari
Certiorari—Dismissal governed by legislative provisions—Right of appealto a quasi-judicial tribunal—Does right to a hearing include anoral hearing—Co-operative Employees Commission Act No. 12 of1972.
W, an employee of a Multi-purpose Co-operative Society wasdismissed from service, after an inquiry, on grounds of misconduct.He appealed to the Co-operative Employees Commission in termsof regulations made under Section 23 of the Co-operativeEmployees Commission Act No. 12 of 1972. The Commission, havingexamined ihe report required to be sent by the Society, in termsof regulation 101, and having also examined the inquiry proceedingsrelevant to the appeal, dismissed the appeal.
In an application for a Writ of Certiorari to quash the ordermade by the Commission, it was contended that the regulationswhich relate to the right of appeal to the Commission contemplatethe granting of an oral hearing before the Commission. Admittedly*W ’ was denied—an oral hearing before the Commission.
Held, ‘ W ’ should have been allowed to make oral submissions insupport of his appeal and the order made by the Commission wasaccordingly quashed.
“ Before a judicial or quasi judicial tribunal, a right to a hearingwould normally include the right to an oral hearing and in certaincircumstances even the right to representation.” per Wanasundera, J.
APPLICATION for a Writ of Certiorari.
Prins Gunasekera, for the Petitioner.
P. L. D. Premaratne, Senior State Counsel, for the Respondent,
Cur. adv. vult.
August 31, 1976. Wanasundera, J.—
This is an application for a Writ of Certiorari asking for thequashing of an order made by the Co-operative EmployeesCommission in respect of an appeal made by the appl-cant,Gnanawardena Bandara Walisinghe.
Walisinghe was engaged by the Kegalle Multi-purposeCo-operative Society Limited in 1972. He continued inemployment till 1974 when he was interdicted from service formisconduct. Consequently, disciplinary proceedings were taken
WANASUNDERA, J.—Ceylon Co-operative Employees Federation v. Co-operative 610
against him at the instance of the Secretary of the Board ofDirectors of the Kegalle Multi-purpose Co-operative SocietyLimited. After a protracted and exhaustive inquiry held by theAssistant Director Rural Institutions and Productive Laws,apparently a State officer who was detailed to hold the inquiry,the applicant was found guilty of five charges and was accordinglydism ssed from service. The applicant appealed to the Commis-sion, through the Society in terms of the regulations made undersection 23 of the Co-operative Employees Commission Act,No. 12 of 1972.
The Commission, having examined the report required to besent by the Society, in terms of regulation 101, and having alsoexamined the inquiry proceedings relevant to the appeal,dismissed his appeal.
Mr. Gunasekera for the applicant submitted that the appli-cant has been denied a hearing in respect of his appeal to theComm ssion, and argued that regulation 103 under which actionwas taken by the Commission contemplates the granting of anoral hearing, and it would be insufficient to determine theappeal merely on the written material before the Board asaverred in the affidavit filed on behalf of the respondent.Mr. Premaratne, Senior State Counsel, for the respondentcontended that there had been due compliance with the provi-sions of regulation 103 in this matter and that that regulationdoes not contemplate the granting of an oral hear.ng. He reliedon the decisions in Kulatunge v. The Board of Directors of theCo-operative Wholesale Establishment (66 N.L.R. 169) andSiriwardena v. Fernando (77 N.L.R. 469).
The applicant’s employment is governed by the provisions ofthe Co-operative Employees Commission Act, No. 12 of 1972, andthe present case is not one of master and servant under thecommon law, but it is a case of' an employment in wh ch theappointment, disciplinary proceedings and dismissal are govern-ed by legislative provisions.
The right to a hearing in this category of case is usuallypresumed. Such a right may be expressly excluded or such anexclusion may be implied in certa n well-known situations. Butthis does not appear to be that type of case. Before a judicial orqua'r-mdioial tr bunal, a righ+ to a hearing would normallyinclude the right to an oral hearing and in certain circumstances
620 WANAS UNDER A, J.—Ceylon Co-operative Employees Federation v. Co-operative
even the right to representation. S. A. de Smith in his well-known work “ J udicial Review of Administrative Action ” (3rdEdition 1973) says—
“that when the words ‘ hearing ’ or * opportunity
to be heard ’ are used in legislation, they nearly alwaysdenote a hearing at which oral submissions and evidencemay be tendered. ” (p. 177).
He adds that—
“ In the absence of clear statutory guidance on thematter, one who is entitled to the protection of the audialteram partem rule is now prima facie entitled to put hi3case orally ;
Although in some contexts it has been held that an oralhearing an! representation are not basic to the auii alteramrule, the trend of recent authority now is to the effect that, inproceedings before tribunals dealing with matters affecting aman’s reputation or livelihood or on matters of serious import,the concept of fairness may require an oral hearing. (Petfc v.Greyhound Racing Association Ltd. (1969) 1 Q. B. 125.)
It was brought to our notice that, prior to" the coming intoooeration of the present law, employees of ''Co-operativeSocieties had sufficient protection against unfair and arbitrarydisciplinary action as they were able to challenge such actionbefore a Labour Tribunal and then come by way of an appealto this Court. The new law has taken away this right;(vide section 39). Mr. Gunasekera urged that, having regard tothis background, we should be slow to interpret the relevantprovisions so as to vest almost arbitrary powers in the Com-mission, unless such a view is justified by clear language.
Bear:ng in mind that we are deal'ng with the case of thedismissal of an officer from a statutory institution, let me nowconsider whether there is anything in the relevant statutoryprovisions which has the effect of excluding either expresslyor impliedly the right to an oral hearing in respect of anappeal.
Section 11 of the Co-operative Employees Commission Act,No. 12 of 1972, sets out the powers of the Commission. Itstates that the Commission shall have the following powers : —
to determine the procedure or procedures to be followedby any co-operative society in exercising its rightsof disciplinary action against its employees ;
WANASUNDERA, J.—Ceylon Co-operative Employees Federation v. Co-operative 521
to call upon any co-operative society to complete dis-
ciplinary inquiries against its employees within atime stipulated by the Commission, and
to hear appeals arising out of any disciplinary orders
made by any co-operative society.
I would like here to emphasise the words “ to hear appealsarising oat of disciplinary orders. ” Prima facie, th:s termino-logy appears to bring in the rule of audi alteram partem and.the right to make oral submissions. The word “ hear ” hasinvariably been used in similar contexts in statute law andregulations, both in respect of courts and administrative tribu-nals, to imply the existence of a right to a personal appearanceand representation. Mr. Premaratne drew an analogy betweenthe present case and the case of appeals to a District Judgefrom Rural Courts under the old Rural Court Ordinance insupport of his position that An oral hearing is not required insuch a case. I have examined those provisions and I find thatthe right to appear in person or by representation in respectof such an appeal has been excluded by express provision.
Paragraphs (h) and (i) of section 11 seem to indicate thatthe appeal is to the Commission and it is the Commission whichis the actual appellate authority. This matter becomes relevantwhen we later 'consider the provisions of regulation 103.
Section 23 (1) of the Act states as follows : —
“ No employee of a co-operative society shall be dismissedor otherwise pun:shed by any co-operative society exceptin accordance with the provisions of this Act or any regu-lations made thereunder. ”
Section 32 read with section 25 provides for the making ofregulations, and regulations have been made by the Commis-sion in respect of the interdiction of officers, the terminationof appointments, dismissals or the imposition of any other formof punishment to such employees and appeals, andhave been published in Government Gazette (Extraordinary)No. 15,009/12a of May 12,1972.
Chapter IV of the Rules deals with Disciplinary Inquiries.Disciplinary action could be taken in cases of misconduct.Misconduct is divided into two classes—first, of a minor nature,and the second, of grave offences. Generally, in the case ofmisconduct of a minor nature, the disciplinary inquiry mustbe held by a sen-'or official of the society, nominated by theBoard of Management. In the case of grave misconduct, theinquiry has to be held by an “ Inquiry Officer ” presumablysome public officer not attached to the society.
622 WANASUITOERA, J.—Ceylon Co-operative Employees Federation v. Co-operattme
Although the Inquiry Officer is given some latitude in thematter and may follow such procedures as he thinks appropriateregulation 74 (3) (a) to (d) sets out certain principles whichare basic to such inquiry and which he must adhere to. Theyare the following : —
“ 74. (3) (a) that the accused employee must be informedin writing what the alleged offences are ;
that the accused officer or his representativemust be allowed to examine and, if necessary,take copies of any documents that may beused in evidence against him;
that the accused employee or his represents-
tive must be allowed to ask questions ofwitnesses who are called to give evidenceagainst him;
that the accused employee or his representa-tive must be allowed to produce witnessesand/or documents in his defence. ”
These provisions contemplate an oral hearing. The partyconcerned is even entitled to representation before the InquiryOfficer. Apart from leading evidence on his own behalf, he canask questions from witnessess called against him, namely, cross-examine them. These principles apply equally in the case of aninquiry by an Inquiry Officer in respect of grave offences, likethe present case.
Chapter V of the Regulations deals with appeals. Regulation100 provides for an appeal to the Commission within sixty daysof the order. A copy of such appeal must also be sent to thesociety and the society is enjoined to submit to the Commissiona brief report relating to the matters set out in such appeal. TheCommission can admit a second appeal within one year of theorder when it is satisfied that there is new material which mayaffect the appeal.
Regulations 102 and 103 are the most material for the purposeof this case and they are worded as follows: —
“ 102. In every appeal other than an appeal from an orderof termination of services or dismissal, the Comm ssion maydecide such appeal on the basis of the written material inappeal.
WAN i.SUXJ8.tA,J,— 3eyt ,n Oi-op rativaB npttyeea Fedsrotl jn*. Oo-op ratios 52S
“ 103. In an appeal from an order of terminat-on of serviceor dismissal, the Commission may dispose of the appeal inits own or refer such appeal to a person nominated to hearsuch appeal, (hereinafter referred to as Inquiry Officer) andto report thereon to the Commission. ”
Regulations 104 to 106 also have a bearing on this matter. Allthese regulations, 102 to 106, however, are not happily wordedand add to the difficulties of ascertaining the schemecontemplated by these provisions. Regulation 104 allows theInquiry Officer at his discretion to permit the parties to berepresented at the inquiry. A provision like this, far fromexcluding the right of the appellant to appear in person, seemsactually to imply such a right. Regulation 104 states that, inexceptional cases, he could allow fresh evidence to be admitted.These provisions seem to suggest that, when the Commissiondelegates the hearing of an appeal to an Inquiry Officer, there iscompliance with the normal audi alteram partem principles, i.e.,in this case it would include an oral hearing.
It will be observed that in regulations 102 and 103, a funda-mental distinction is drawn between an appeal in respect of anorder of termination of services or dismissal—the extremepenalties in disciplinary proceedings, and the case of lesserpunishments.
Regulation 102 deals with appeals from cases for lesser punish-ments and provides that the Commission may decide such anappeal on the basis of the written material in appeal. This couldmean that the Commission would decide the matter only on thebasis of the available written material and that no evidence tosupplement that material would be allowed. This view wouldhowever not affect the right to present the case in person, whichis normally presumed when the audi alteram partem rule applies.On the other hand, regulation 102 can also mean that no oralpresentation of the appeal will be allowed and that the Commis-sion will determine the appeal merely by perusing the writtenmaterial. Assuming the latter to be the correct view, we arefaced with a significant contrast. There is no equivalent provisionin respect of appeals concerning termination of services ordismissal—the extreme penalties. The immediate inferencetherefore would be that such an oral presentation is presumedin the latter case.
524 WANASTTNDERA, J. Ceylon Co-ope.tative Employers Federation v. Co-operative
The provisions relating to the alternate procedure of thehearing of an appeal by an Inquiry Officer seems to support sucha conclusion. The Inquiry Officer is requ red to “ hear ” theappeal. Regulations 104 and 105 are also suggestive of it and havealready been referred to.
Mr. Premaratne has, however, argued that the wording ofregulation 103 does not suggest that the applicant should begiven an oral hearing when the Commission itself decides todispose of the appeal. The cases cited by him, and referred toearlier, were decided before the present law came into effect. Iobserve that the rationale of those decisions was that neitherthe statute nor the regulations provided the grounds for dis-missal or contained the procedure therefor. The present case isnot similar to those cases and, therefore, they have little bearingon the issue before me.
Our attention has also not been drawn to any guide lines laiddown in the law or the regulations, or to any satisfactory prac-tice, which provide how the Commission should decide whetherit should itself dispose of the appeal or refer it to an Inqu ryOfficer. The lack of guide lines could result in unequal treatmentand injustice, for an appellant fortunate enough to go beforethe Inquiry Officer would be granted an oral hear ng, but anotherappellant going before the Commission will find himself deniedsuch a right.
It would be noted that all appeals are to the Commission andit is the Commission and the Commission alone that can makethe final order thereon. The main enactment contemplates ahearing by the Commission. Even when the matter is referredto an Inquiry Offiecr, the decision in the appeal is still taken bythe Commission. It seems to me that the provisions of regula-tions 103 to 106 should be cons dered together, as they constitutethe totality of the powers of the Commission and the manner inwhich it disposes of appeals. It will also be observed that it isonly regulation 106 that sets out the* powers of the Commissionin respect of appeals. I am of the view that the powers g'vento an Inquiry Officer, embrace the powers of the Commissionand could equally be exercised by the Commission in the firstinstance. Therefore, if an oral hearing is posited in the case ofthe Inquiry Officer, it should be equally a requirement when theCommission decides to deal with the appeal itself.
The present applicat;on is in respect of an appeal which wasdealt with by the Commission itself. The applicant has com-plained that he was not given a hearing when his appeal wascons dered by the Board. I am of the view that the applicant
ODALAGAMA, J. — Samara noon v.r Punch i Banda
should have been allowed to make oral submissions in supportof his appeal. Accordingly the order made by the Board cannotbe allowed to stand.
I would therefore quash the order made by the Board. Theapplicant would also be entitled to the costs of this applicationwhich I fix at Rs. 210.
Thamotheram, J.—I agree.
Colin-Thome, J.—I agree.
THE CEYLON CO-OPERATIVE EMPLOYEES FEDERATION Petitioner, and THE CO-OPERATIVE E