UNIQUE GEMSTONES LTD. W. KARUNADASA AND OTHERS

061-SLLR-SLLR-1995-2-UNIQUE-GEMSTONES-LTD.-W.-KARUNADASA-AND-OTHERS.pdf


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Unique Gemstones Ltd. v. W. Karunadasa and Others
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UNIQUE GEMSTONES LTD.
v.
W. KARUNADASA AND OTHERS
COURT OF APPEAL.
W. SENANAYAKE, J.
C/A 393/95TEU/A 20/94.
OCTOBER 16, 1995.
Termination of Employment – Termination of Employment of Workmen (SpecialProvisions) Act, No. 45 of 1971 S. 2(1)- Services terminated – Inquiry – Reasonsfor reinstatement of Employees not given, though requested. Should reasons begiven – Natural justice – ‘State Decisis'.
The Workmen complained to the Commissioner of Labour of the Termination ofEmployment of the Workmen (Special Provisions) Act, (T.E. Act), that his serviceswere terminated contrary to S. 2(1) of the T.E. Act.
At the conclusion of the inquiry the 2nd Respondent issued the impugned Order,holding that the workmans' services have been terminated contrary to S. 2(1) ofthe T.E. Act. As there were no reasons given for the said findings, the Petitionerrequested the 2nd Respondent for the ‘reasons’. The 2nd Respondent replied,without giving any reasons that the services of the 1st Respondent wereterminated in violation of S. 2(1) T.E. Act. The matter before Court was whether thefailure to give reasons is a negation of natural justice.
Held:
Per Senanayake, J.
“I am of the view that the Commissioner should give reasons for his decision.The action of Public Officers should be transparent and they cannot makeblank orders. In my view, it is implicit in the requirement of a fair hearing togive reasons for a decision.
I am of the view that it is only in special cases the reasons should be withheld,where the security of the State is affected, otherwise a statutory Body orDomestic Tribunal should give reasons for its decision. Though the T.E. Act issilent on this matter the Commissioner being a creature of the statute isperforming a Public function it is not only desirable but necessary to givereasons for its decision.
Per Senanayake, J.
“The common law as understood by us has now been battered down.Reasoned Orders are the ‘sine qua-non” of administrative justice even if theStatute is silent.
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In my view the law cannot be static it must be dynamic and progress with thesocial changes in society."
There is a continuing momentum in administrative law towards transparency ondecision making. The failure to give reasons is a breach of S. 17 T.E. Act,because it is inconsistent with the principles of natural justice.
AN APPLICATION for a Writ of Certiorari.
Cases referred to:
(a) Kamil Hassan v. Fairline and Garments Ltd. 1990 1 SLR 394 at 404.
(b) State Graphite Corporation v. Fernando -1982 2 SLR 684.
Bandahamy v. Senanayake, 62 NLR 313 at 349.
Young v. Bristol Aeroplane Company Ltd. 1944 2 All E.R. 293.
Padifield v. Minister of Agriculture 1968 AC 997.
R. v. Lancashire County Council ex parte Hyuddleston – 1968 – 2 All E.R. 941at 945.
DC Felician Silva v. M/s Aztex Industries Ltd., and S. Weerakoon – C.A. 260/93- C.A. Minutes of 8.2.95.
H. J. H. Perera v. H. C. Ebert, Deputy Commissioner of Co-operatives, A. M. M.Amarasinghe and Kolonnawa MPCS – CA 480/84 – C.A. Minutes of 2.4.93.
Kegalle Plantations Ltd. v. G. P. de Silva and Others C.A. 686/94 – C.A.Minutes 28.8.95.
Doody v. Secretary of State for the Home Department Ex P. Doody • 19933 WLR 154.
Varuna Basnayake P.C. with Tyrone Weerakkody for Petitioner.
Respondent absent and unrepresented.
(Mr. D. IV. Abeykoon, P.C. the Respondent's Counsel submitted WrittenSubmissions subsequently after 16.10.1995).
Cur adv vult.
November 28, 1995.
W. SENANAYAKE, J.
This is an application invoking the jurisdiction of this Court to issuea mandate in the nature of Writ of Certiorari to quash the order dated30.04.95 marked 'P-7' made by the 2nd Respondent.
The relevant facts briefly are as follows: The Petitioner is a dulyincorporated Company and the 1st Respondent was employed bythe Petitioner as an unskilled worker from the year 1989. Theworkman complained to the Commissioner of Labour under theTermination of Employment of the Workmen (Special Provisions) Act
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Unique Gemstones Ltd. v. W. Karunadasa and Others
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hereinafter referred to as T.E. Act informing that his services hadbeen terminated contrary to Section 2(1) of the T.E. Act. The 1stRespondent's position was after obtaining four days leave withoutprior approval he had reported for work on 30.05.1994 and hisservices were terminated by the Petitioner on the basis that he hadvacated his post as he was a habitual absentee. The Petitioner wasinformed by the 3rd Respondent that there would be an inquiry andhe had participated in the inquiry and called witnesses andproduced documents. At the conclusion of the inquiry, writtensubmissions were tendered by both parties and 2nd Respondentissued the impugned order marked 'P-7' holding that the workman’sservices have been terminated contrary to Section 2(1) of the T.E. Actand reinstate the 1st Respondent from 06.09.1995 with back wagesamounting to Rs. 13,200/-. As there was no reasons for the saidfindings the Petitioner requested the 2nd Respondent by ‘P-8’requesting the reasons for his decision. The 2nd Respondent repliedby ‘P-9’ without giving any reasons that the services of the 1stRespondent were terminated in violation of Section 2(1) of the T. E.Act.
The submission of the learned Counsel for the Petitioner was that,it was a violation of the principle of natural justice in not givingreasons for the said decision. I am of the view that there is someforce in the said submission.
The learned Counsel for the 1st Respondent in his writtensubmission stated that not giving of reasons was not fatal. He reliedon Wade, Administrative Law 12th Edition pages 34-35 on review,one has to findout whether the question was lawful or unlawful. Hissubmission was the order of the Commissioner was lawful and hehad not exceeded his jurisdiction and therefore he submitted he hadnot acted contrary to the principles of natural justice. He submittedthat the application should be dismissed. He relied on the decision ofKamil Hassan v. Fairline and Garments Ltd. <1a). He relied on theobservations of Mark Fernando, J.
“I have been mindful of the nature of Certiorari proceedings as
distinct from an appellate jurisdiction. Certiorari in relation to the
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Termination Act will lie to quash an order of the Commissioner,wholly or in part, where he assumes a jurisdiction which hedoes not have or exceeds that which he has or acts contrary tonatural justice or is guilty of an error of law; it cannot be utilisedto correct errors or to substitute a correct order for a wrongorder. If the Commissioner's order was not quashed in whole orin part, it had to be allowed to stand unaltered. If the Petitionerwas dissatisfied with the Commissioner's order, in that 'benefits’for the period 16.8.85 to 8.9.87 had not been awarded, it wasopen to him to have sought relief by way of writ, perhaps evenby a counter claim (as in State Graphite Corporation v.Fernando,1b> although on appeal that claim failed on the merits;not having done so, the Petitioner could not have asked theCourt of Appeal or this Court to vary the Commissioner’s orderin his favour. Wade, Administrative Law, (12th ed.) conciselyputs the matter thus:
… judicial review is radically different from the system ofappeals. When hearing an appeal the Court is concerned withthe merits of the decision under appeal … (in) judicial reviewthe Court is concerned with its legality. On an appeal thequestion is ‘right or wrong’ On review the question is ‘lawful orunlawful?' … Judicial review is a fundamentally differentoperation. Instead of substituting its own decision for that ofsome other body, as happens when an appeal is allowed, theCourt on review is concerned only with the question whether theact or order under attack should be allowed to stand or not".
I am of the view, that non-compliance of the principles of naturaljustice amounts to the Commissioner acting without jurisdiction.
I am of the view that the Commissioner should give reasons for hisdecision. The present trend which is a rubric running through out thepublic law is that those who give administrative decisions where itinvolves the public whose rights are effected specially whenproprietary rights are affected should give reasons for its decisions.The action of the Public Officers should be ‘transparent’ and theycannot make blank orders. The giving of reasons is one of the
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fundamentals of good administration. In my view it is implicit in therequirement of the fair hearing to give reasons for a decision. Thestandard of fairness are not immutable they may change with thepassage of time both in the general and in their application todecisions of particular type. The principles of fairness are not to beapplied identically in every situation. But fairness demand isdependent on the context of the decision. The present trend is to givereasons and a failure to do so amount to a failure to be manifestlyseen to be injustice. I am of the view that it is only in specialcircumstances, the reasons should be withheld where the security ofthe state is affected otherwise a statutory body or domestic tribunalshould give reasons for its decision. Though the T. E. Act is silent onthis matter the Commissioner being a creature of the statute isperforming a public function it is not only desirable but necessary togive reasons for its decision.
There is essential distinction between the Court and theadministrative tribunal. A Judicial Officer is trained to look at thingsobjectively uninfluenced by consideration of policy or expediency, anAdministrative Officer generally looked at things from the stand pointof policy and expediency, so it is essential that the administrativebody in the matter of passing orders affecting the rights of parties theleast that they shduld do is to give reasons for their orders. In myview the practice of the administrative bodies of making orders whichprima facie seriously prejudice the rights of an aggrieved partywithout giving reasons is a negation of the rule of law.
In my view the attitude of the 2nd Respondent stating that he is notbound to give reasons for its decision is untenable in law. His attitudeand failure to give reasons is a breach and violation of natural justiceand a negation of the rule of law. The present trend is to give reasons,it has veered off from the old concept of not adducing reasons byadministrative bodies for their decisions. The common law asunderstood by us has now been battered down. Reasoned orders arethe 'sine-qua-nori of administrative justice even if the statute is silentthe decision should contain reasons, it is in the interest of the PublicOfficer to give reasons for its decisions otherwise his action would lack'transparency' and amount to arbitariness.
In my view, law cannot be static it must be dynamic and progresswith the social changes in society. In the Case of Bandahamy v.Senanayake<2) Basnayake, C.J.
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“The very strength of judgment law lies in his flexibility andcapability of development by judicial exposition by generationof Judges. A Rigid Adherence to 'Stare Decisis’ would rob oursystem of its virtues and hamper its development. We shouldstrive to strike a mean between the one extreme of too frequentchanges, in the law without sound and compelling reasons forthem and the other extreme of slavish adherence to precedentmerely because it has been decided before. The virility of theBench is shown by its capacity to re-assess past decisions anddeclare the law as it should be in the light of more carefulanalysis of the problems involved than has been done beforetaking to account the development of legal thought in otherCountries. If the Bench is powerless to depart from a decisionthat research an analytical skill of Counsel backed by soundargument have shown to be wrong the judicial process wouldbe of little value”.
“Our legal machinery being so different from that of England itwould be wrong I think to regard the case of Young v. BristolAeroplane Company Ltd., (3) or the practice of the House ofLords as applicable to us. The many exceptions created byLord Goddard who participated in it to the rule laid down in theBristol Aeroplane Case (supra) show the unwisdom of layingdown a hard and fast rule in the matter of ‘Stare Decisis’. All thedecisions of the Supreme Court are not reported and even thereported decisions are all not cited and unless the Judgesthemselves know all the reported and unreported decisions itwould be impossible not to contravene the rule unwittingly. Forthat reason and many other reasons set out hereinbefore therule has to be flexible."
Even in the United Kingdom the momentum is that theadministrative law is to give reasons for its decision. In the case ofPadifield v. Minister of Agriculture w. The Minister whose decision(given without stating reasons) was challenged. He furnished astatement of reasons to Court. The reasons were found to be bad inlaw and the Petitioners were granted relief by an order of Mandamus.In appeal it was contended by the State, that since there is norequirement to give reasons, the reasons that were furnished to Court
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cannot be attacked on the ground of an error of law. Lord Reid (atpage 1032), Lord Pearce (at Pages 1053, 1054), Lord Up John (atpage 1061) made clear observations that if there is prime faciematerial that the Minister has acted contrary to the intentions ofParliament in failing to take steps as required by law and no reasonsare furnished to Court by the Minister in his defence, the Court willinfer that the Minister had no good reasons for the impugnedaction, in deciding the matter, thus if the Commissioner fails todisclose his reasons to the Court exercising judicial review aninference may will be drawn that the impugned decision is ultra viresand relief granted on this basis.
"In this regard I would like to cite the observations made by SirJohn Donaldson in the case of R. v. Lancashire County Councilex parte Hyuddleston (5) “Counsel for the Council alsocontended that it may be undesirable practice to give full orperhaps any reasons to every applicant who is refused adiscretionary grant, if only because this would be likely to leadto endless further argument without giving the applicant eithersatisfaction or a grant. So be it. But in my judgment the positionis quite different if and when the applicant can satisfy a judge ofthe public law Court that the facts disclosed by her aresufficient to entitle her to apply for judicial review of thedecision, then it becomes the duty of the Respondent to makefull and fair disclosure. Notwithstanding that the Courts have forcenturies exercised a limited supervisory jurisdiction by meansof the prerogative writs, the wider remedy of judicial review andthe evolution of what is in effect a specialist administrative orpublic law Court is a post war development. This developmenthad created a new relationship between the Court and thosewho derive their authority from the public law one of partnershipbased on a common aim, namely the maintenance of thehighest standards of public administration”
This Court has held in D. C. Felician Silva v. M/s Aztex IndustriesLtd. and S. Weerakoon <6). In H. J. H. Perera v. H. C. Ebert DeputyCommissioner of Co-operatives, A. M. M. Amarasinghe and KolonnawaMPCS m. In the case of Kegalle Plantations Ltd. v. G. P. de Silva and
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Others(8) that there is an obligation on the part of the Commissionerto give reasons for its consideration.
In the recent case of Doody, R. v. Secretary of State for the HomeDepartment Ex. P. Doody,9). The prisoners H. L. Doody, Pierson,Smart and Pegg were convicted for murder and sentenced to lifeimprisonment. The Home Secretary’s adopted practice in relation tomandatory lifer’s involved consultation with the trial judge and theLord Chief Justice (the Judges) in setting a penal tariff of minimumcustody. The prisoners applied for Judicial Review seekingdeclarations that the Home Secretary was not (1) not entitled todepart from the Judges recommendations, (2) not entitled todelegate his tariff setting powers to a Junior Minister and (3) obligedto afford a lifer (a) disclosure of the Judges recommendations andcomments (b) and opportunity to make representations and reasonsfor departing from those recommendations. The House of Lords heldthat declarations (1) and (2) should be refused but granted the reliefunder (3) being required by the minimum standard of fairness.
Lord Mustil observed at page 166 (supra) I find more recent caseson judicial review a perceptible trend towards an insistence ongreater openness or if one prefers the contemporary Jargon“transparency” in the making an administrative decision. Thistendency has been accompanied by the increasing recognition, bothin the requirement of statute and in the decisions of the Court.
There is a continuing momentum in administrative law towardstransparency in decision making. It is my considered view that PublicOfficers who wield power on others should give reasons for theirdecisions. The failure to give reasons is a breach of Section 17 of theT. E. Act because it is inconsistent with the principles of naturaljustice.
It is my view the 2nd Respondents’ failure to give reasons is anegation of natural justice.
In the circumstances, I quash the impugned order P-7.1 allow theapplication of the Petitioner in terms of prayer (b). I refrain frommaking an order for costs.
Application allowed.