WILSON v. CEYLON ELECTRICITY BOARD AND OTHERS

018-SLLR-SLLR-1997-V3-WILSON-v.-CEYLON-ELECTRICITY-BOARD-AND-OTHERS.pdf


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Sri Lanka Law Reports
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WILSON
v.CEYLON ELECTRICITY BOARD AND OTHERS
COURT OF APPEAL.
DR. RANARAJA, J.
C.A. NO. 285/97.
OCTOBER 20,1997.
Industrial Disputes Act – Section 49 – Employee of Electricity Department – Afterthe enactment of the Ceylon Electricity Board Act 17 of 1969 worked for theBoard – Services terminated – Reinstated by Labour Tribunal – Ordered to paycompensation, backwages and pension – Can pension be paid? – Validity of thatpart of the Order of the Labour Tribunal,
Hold:
Order granting a pension as a public servant to the petitioner who has alsodrawn E.P.F. contributions as an Employee of the Board is ex facie ultra vires theIndustrial Disputes Act.
‘An order which is a Nullity hurts nobody so long, it is not sought to be enforced.The party against whom it was made may choose, if it was made withoutfoundation, to have it quashed by a writ of certiorari or declaratory action, but heis entitled to wait until proceedings are taken to enforce it against him and thenattack its validity.
A public servant has no absolute right or legal right to a pension enforceableby Mandamus.
The petitioner having successfully filed the application before the LabourTribunal and having obtained relief as an employee of the Board and not as anemployee of the State, cannot now claim that he was an employee of the State.
APPLICATION for Writs of Certiorari/Mandamus.
Cases referred to:
Bandahamy v. Senanayake – 62 NLR 313.
Rajakulendran v. Wijesundara-1 SRI – LR Part 12 -169.
Brown & Company v. Ratnayake -1994 3 SLR 91.
MohamedAli v. RasheedAli- 1981 1 SLR 262.
Attorney-General v. Abeysinghe – 78 NLR 361 at 364.
Gunawardane v. Attorney-General – 49 NLR 359.
Udayakumar v. Major General Nalin Seneviratne – 1987 1 SLR 390.
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L. C. Seneviratne, P.C. with Lakshman Perera for petitioner.L. M. K. Arulanandan, S.S.C. for Attorney-General.
Cur. adv. vult.
October 23, 1997.
DR. RANARAJA, J.
The petitioner was employed by the Electricity Department on1.7.64 as a temporary office labourer and as an office peon witheffect from 3.1.68. He was appointed as a grade III storekeeper in thesaid Department on 3.5.69. After the enactment of Ceylon ElectricityBoard Act, No. 17 of 1969, the petitioner claims to have opted tocontinue as a public officer of the Department of GovernmentElectrical Undertaking and to work for the Board. The petitioner wasinterdicted from service on 14.5.73. Although he was reinstated inservice on 12,10.80, he was dismissed from service after a domesticinquiry on 8.5.85. On an application made by him to the LabourTribunal, the petitioner obtained order (P6) in his favour on 28.5.92,An appeal by the 1st respondent Ceylon Electricity Board to theProvincial High Court was dismissed on 17.9.93. The 1st respondentthereupon wrote P6(b) to the petitioner stating that it would pay thepetitioner a sum of Rs. 319,200/- as compensation, backwages from14.5.73 and also a pension on the basis that he was a Governmentemployee who has been absorbed into the Board. The petitioner hadin the meantime retired from service on 4.7.91.
The petitioner wrote P7 to the 2nd respondent, Director Pensions,requesting him to pay the petitioner’s pension. The petitioner wasdirected by letter P7a of the 2nd respondent to forward the relevantpension papers to the Divisional Secretary, through the Head ofDepartment. The petitioner then wrote letter P7b to the GeneralManager of the 1st respondent to comply. The Deputy GeneralManager of the 1st respondent wrote P8 stating that the pensionpapers were being prepared. However by P9 that officer forwardedthe relevant file to the Personnel Manager of the 1st respondent forfurther action. Subsequently, the Deputy General Manager by letterP10, whilst indicating that the petitioner had served a period of 84months and 17 days, sought further clarification from the DeputyGeneral Manager {personnel) regarding the preparation of the
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pension papers. The petitioner has not filed any reply to P10 from theDeputy General Manager (personnel). The petitioner complains thatby P10 the 1st respondent has refused the entitlement of thepetitioner to his pension and such refusal is illegal, unreasonable anda denial of his legitimate expectation to a pension, in the light of theorder of the Labour Tribunal and High Court. He seeks inter alia,(a) a writ of certiorari quashing the “decision" of the 1st respondentcontained in letter P10, not to pay the pension to the petitioner. (b)a writ of mandamus directing the 1st respondent to send the relevantpension paper of the petitioner to the relevant Divisional Secretariat.
At the outset it must be noted that there was no refusal by theDeputy General Manager of the 1st respondent to pay the petitioner apension in P10, as alleged by the petitioner. What the Deputy GeneralManager has sought is further advise on awarding the petitioner apension. Therefore P10 does not contain a final decision which isamenable to writ jurisdiction.
The petitioner has however based his application on the order P6of the Labour Tribunal President. Order P6 has been made under theProvisions of the Industrial Disputes Act. Section 49 of that Act states“Nothing in this Act shall apply to or in relation to the State or theGovernment in its capacity as employer, or to or in relation to aworkman in the employment of the State or the Government."
The petitioner having successfully filed the application before theLabour Tribunal and having obtained the preliminary order 1R1 fromthe Labour Tribunal that he was an employee of the 1st respondentBoard, and not an employee of the State or Government, cannot nowclaim that he was an employee of the State.The tribunal has awardeda sum of Rs. 319,200/- as compensation together with backwagesfrom 14.5.73 amounting to Rs. 888,605/50 (A25), which includesE.P.F. contributions. These sums have been paid by the 1strespondent to the petitioner. An employee of a statutory Board whohas drawn E.P.F. contributions is not entitled to draw a pension on thebasis he is also a public servant.
Since order P6 granting a pension as a public servant, to thepetitioner who has also drawn E.P.F. contributions as an Employee of
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the 1st respondent is ex facie made ultra vires the provisions of theIndustrial Disputes Act, this Court will not enforce that part of theorder by way of extraordinary writ jurisdiction.
"An order which is a nullity hurts nobody so long as it is not soughtto be enforced. The party against whom it was made may choose, if itwas made without jurisdiction, to have it quashed by a writ ofcertiorari or declaratory action, but he is also entitled to wait untilproceedings are taken to enforce it against him, and then attack itsvalidity … I dissent from the view that an award made withoutjurisdiction must be executed merely because it does not bear anyfatal flaws on its face" – Per Sansoni, J. in Bandahamy v.Senanayakal'K which was followed by G. P. S. de Silva, J. inRajakulendran v. Wijesundaraw. The order of the Labour Tribunalawarding the petitioner a pension is a nullity which this Court will notenforce.
Learned counsel for the petitioner submitted that the 1strespondent has considered the petitioner entitled to a pension and soinformed the petitioner by P15, therefore, the 1st respondent is boundby that letter to pay the petitioner a pension. That document is anuncertified photocopy of a document, which cannot be consideredas part of the evidence in support of his counter objections, in termsof Supreme Court Rule 3(1) (a). (See: Brown & Co. v. Ratnayake'31,Mohamed AH v. Rasheed Ali'4)). In any event, the principle laid downin Bandahamy and Rajakulendran will apply to that document. Thesame applies to document P13.
It is also to be noted that a public servant has no absolute right orlegal right to a pension enforceable by mandamus. (See: Attorney-General v. Abeysinghe<5) at 364, Gunawardane v. Attorney-General™,Udayakumar v. Major General Nalin Seneviratne'7)). In thecircumstances, the petitioner has no right to relief (b) in the petition.
For the reasons given this application fails. The application isdismissed without costs.
Application dismissed.