Ceylon Hotel# Corporation v. Jayatunga
Present : Sirimane, J., and Weeramantry, J.
THE CEYLON HOTELS CORPORATION, Appellant, andC. JAYATUNGA, RespondentS.C. 262/68 (F)—D. O. Colombo, 69122/MInjunction—Order■ granting an interim injunction—Right oj appeal therefrom—Courts Ordinance (Cap. 6), 8. 73—Civil Procedure Code, 8. CGG—Rcsthouse-Kecper appointed by Tourist Bureau—Appointments subsequently held by himunder Tourist Board and, on probation, under Ceylon Hotels Corporation—Termination of his services by the Corporation—Whether he can claim aninterim injunction—Tourist Board Act Bo. 10 of 19GG, s. 50—Motor TransportAct Bo. 4S of 1957, ss. 9 (3) (a), 9 (3) (b) (i), 9 (3) (6) (ii).
A party who is dissatisfied with an order granting an interim injunction isentitled to appeal therefrom to the Supreme Court under section 73 of the CourtsOrdinance..
The plaintiff who was appointed by the Tourist Bureau as a Rosthouso-Ifeeper in 1957 was subsequently employed by tho Tourist Board on 1st May19G6 when tho Tourist Board Act No. 10 of I960 came into force on that day.Oh acceptance of employment under tho Board, the provisions of section 9(3) (a)of the Motor Transport Act applied to him and he ceased to bo a pubiioservant. When ho was discontinued by tho Tourist Board, ho raised no protest.Ho then worked for tho defendant (tho Ceylon Hotels Corporation) temporarilyon tho conditions offered to him. When ho was found unfit and discontinuedho filed tho present action and obtained an interim injunction from tho DistrictCourt restraining tho defendant from ejecting tho plaintiff from tho KitulgalaRest Houso. The plaint, prima facie, did not discloso a right to tho occupationof the Rest Houso. Tho plaintiff’s causes of action appealed to bo based oncontracts of servico.
Held, that tho plaintiff was not entitled to an interim injunction. Suchan injunction is granted on equitablo grounds and the conduct and dealingsof tho parties beforo the application to Court should bo takon into consideration.
SIR IMAXE, J.—Ceylon Hotels Corporation v. Jayalunya
-/VpPEAL from an order of tho District Court, Colombo.
C. Jianganalhan, Q.G., with Paul Perera and O. Sandrasagara, for thedefendant-appellant.
E.R. S. R. Coomaraswamy, with Nika Jayawickrama, C. Chakradaran,S. C. B. Walgampaya and P. II. Kurukulasuriya, for tho plaintifif-rcspondent.
Cur. adv. vult.
July 15, 1969. Sdrimane, J.—
I am unable to uphold tho preliminary objection taken by Mr. Coomara-swamy that the defendant has no right of appeal against tho order of tholearned Trial Judge granting 1 ho plaintiff an interim injunction restrainingtho defendant from ejecting tho plaintiff from tho Kitulgala Rest Houso.That was an inter partes order mado after inquiry at which both partieswere heard. Such an order is an appealable one, and tho right of appealis granted to the party dissatisfied by section 73 of tho Courts Ordinance,Chapter 6. Section 666 of the Civil Procedure Codo does not disallowthat right of appeal, and that section would apply in cases where thoCourt grants an intorim injunction in tho first instance before the otherparty is heard; or where there are subsequent supervening circumstanceswhich could not havo been foreseen, at the time the interim order wasmade.
Tho plaintiff was appointed by tho Tourist Bureau as a Resthouse-Keopor in Grade II in 1957. Tho Tourist Bureau was a GovernmentDepartment to which the Public Service Commission had delegatedpowers to mako such appointments. Tho plaintiff thoroby became a .Government Servant subject to tho Public Servico Commission Rules,Financial Regulations, Departmental Orders, etc.
On 1.5.1966, tho Tourist Board Act 10 of 1966 came into forco, and it isclear that tho plaintiff was emploj-ed by tho Tourist Board from that day.Though tho plaintiff has not expressly stated that ho accepted tho employ-ment, it is quite clear that he did. Ho received his salary from thoTourist Board and worked as its employee from 1.5.1966 till 31.3.1967. .Counsel for him had admitted employment under the Board in hisaddress in tho Lower Court and I do not think there can bo any doubt onthis matter now.
Section 56 (1) of tho Ceylon Tourist Board Act reads as follows : —
“ On tho appointed dale, thoso officers and servants of the Govern-ment Tourist Bureau or tho Tourist Development Board, who do notbolong to a transferable service of the Government, may be emplo3'odby tho Board on such terms and conditions as shall be agreed upon bytho officer and tho Board ; and in any such case Section 9 (3) (a) (6) and
of the Motor Transport Act No. 48 of 1957 shall apply mutalismutandis to any such officer or servant .”
SfRIMANE, J.—Ceylon Sotelo Corporation v. Joyolunya
The plaintiff-accepted his employment. Had ho not, ho would havebeen retired under the provisions of section 56 (2). It is unnecessary toconsider whothor section 56 (2) is ultra vires tho Constitution for thatsituation does not ariso hero. This contention was not urgod before usin appeal.
On acceptance of employment under tho Board, tho provisions of section9 (3) (a) applied to him and he ceased to be a public servant. Undersection 9 (3) (6) (i) and section 9 (3) (b) (ii), any pension rights which hadaccrued to him while serving as a public servant, wero conserved. Section9 (3) (6) (i) sots out tho manner in which tho quantum, of his pension wasto be ascertained for tho purposos of making an award. Section-9 (3) (5)(ii) specified the time at which ho would be entitled to payment.
Sections 9 (3) (5) (i) and 9 (3) (b) (ii) read as follows :•—
(i) he shall be eligible for such an award under those Minutes (i.o., .tho Minutes on Pensions) as might bo made to him if ho hadboon retired from tho public service on tho ground of ill-hoalthon tho date of his permanent employment to tho staff of thoBoard.
(ii) tho amount of any such award made under those Minutes shall notbe paid to him unloss his employment in the staff of tire Boardis terminated by retirement on account of age or ill-health orby the abolition of the post held by him in such staff or on anyother ground approved by tho Minister of Finance.
These sections have nothing to do with the powers of the Board todiscontinue its employees. Tho plaintiff’s employment under tho Boardwas not a "statutory employment”. The relationship between theBoard and the plaintiff was that of an employer and omployoo.
Tho learned District Judge seriously misdirected himself when hothought that t hese two sub-sect ions, particularly 9 (3) (6) (ii), restrictedthe right of the Board to discontinue an employee only on tho grounds ofago or ill-hoalth. Tho Board had overy right, like any other employer,to discontinue the services of an employee. If tho discontinuancewas wrongful, tho omployeo would havo a cause of action against thoBoard. I * * * * * 7
I think it is quito clear that the Board, by its circular letter dated8.3.1967, discontinued tho services of tho plaintiff. Tho rclovant parts ofthat letter read as follows :—
"As intimated to you by the Chairman, whilo your services are not
required by tho Board from 1st April, 1967, in lieu of notice you will bo
paid by tho Board till 8th Juno, 1967. You will however be under tho
control and supervision of tho Hotels Corporation from 1st April, 1967.
Thoso of you who havo completed 10 years pensionable service in thoGovernment up to 30.4.1966, will be paid a pension in terms of soction
7 (1) (i) of the Pension Minutes. ”
SIRIMANE, J-—Ceylon Holds Corporation v. Jayatunga
Tito Board apparently sent another letter dated 27.3.19G7 addressodto the plaintiiT personally, terminating his services, as stated in tlio nfii-davit of tho General Manager of the defendant Corporation. It had beenagreed at tho hearing in tho District Court that this matter should bodecided on tho affidavits filed, and this statement was not contradicted.In fact, in para. 13 of his affidavit, tho plaintiff himself referred to thisletter. Thoro is also the defendant’s letter dated 28.3.19G7 addressed toall Rest Houso Keepers, including tho plaintiff, in which it states—
“ With reference to the letter dated Slh March, 19G7 addrossed toyou by tho Ceylon Tourist Board, j'ou are hereby informed thatat the termination of your service under the Board, your servico willcontinue under tho Ceylon Hotels Corporation, subject to jour havinghad a good record of servico and competency. ”
These two lettors make it quito clear that tho plaintiff’s sorvicos wereterminated by tho Board.
Tho learned trial Judgo appears to havo overlooked this vital fact.Having so terminated the plaintiff’s services the Board handed ovortho control and management of tho Rost-Houso to the defendantCorporation.
The plaintiff then worked on probation under the defendant in accord-ance with the terms in tho letter dated 2S.3.19G7 referred to above. Howent through a course of training and subjected himself to a test. Howas found to be unfit and his temporary services were terminated as from31.1.1908 by letter PI dated 31.10.19G7. Tho plaintiff then apparentlymade an appeal to Iho defendant that he bo granted an extension. Thisappeal was granted on compassionate grounds and by letter dated31.1.190S, Iho date of tho termination of his services was exfondcd to30.4.19GS. Having obtained this extension, tho plaintiff filed this action-on 27.4.19GS.
Whether (he plaintiff is entitled to a declaration that ho is still a publicsorvant on the ground that tho Coylon Tourist Board Act No. 10 of19GG is ultra rhea the Constitution, or to a declaration that ho is stillin tho sorvico of tho Tourist Board on tho ground that tho letterterminating his services by tho Board is ultra vires tho powers of thoBoard—oven so—he has no right to tho occupation and control of thoRest-Houso. The plaint, prima. facie, does not disclose a right to thooccupation of the Rest-House in question. His causes of action appoarto bo based on contracts of service.
In Vine v. National Dock Labour Board1, 1957 A.C. at page 4SS, LordKeith said—
“ Normally, and apart from tho intervention of statute, thoro wouldnover bo a nullity in terminating an ordinary contract of master andsorvant. Dismissal might be in breach of contract and so unlawful,but could only sound in damages .”
> (1957) A.C. at p. 4S8.
Iiatiaainghe v. Algin
I do not wish to say moro regarding tho plaintiff's claims a3 the maincase is pending. On tho arguments adduced, and tho material placedbeforo us in the present appeal, I am of the view that tho plaintiff is notentitled to an interim injunction. Such an injunction is granted onequitable grounds and the conduct and dealings of the parties bofore thoapplication to Court should bo taken into consideration. (Vide Volume21 Simond3 Edition of Halsbury, page 307.)
The plaintiff accepted employment undor tho Board. When ho wasdiscontinued by tho Board, ho raised no protest. He then worked fortho defendant on the conditions offered to him. When ho was foundunfit and discontinued, he obtained an extension from the defendanton compassionato grounds and at tho end of tho extension, ho filed thisaction. He is an omployoe who, so far, has failed to show that ho hasany right to remain in occupation; but, ho still remains in tho rest-house and prevents the defendant, or anyone olse, from controlling it.
I am of the view that an interim injunction should not havo beengranted to the plaintiff in this case.
The order of tho learned District Judge is set aside. Tho defendant isontitled to costs of this appeal.
Weekamantby, J.—I agree.
Order set aside.
THE CEYLON HOTELS CORPORATION, Appellant, and C. JAYATUNGA, Respondent