033-SLLR-SLLR-1981-2-WIMALASIRI-DE-SILVA-v.-GUNATUNGA.pdf
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iA/imai3siri tie Sa'va Gur.atunga 'Su/a J./
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WIMALASIRI DE SILVA
v.GUNATUNGA
COURT OF APPEALSOZA. J. AND TAMBIAH, J.
C. A. APPLICATION NO 190/81JUNE 22. 1981
Government Quarters (Recovery of Possession) Act No. 7 of 1969 ''I'f-cer ceasing to bein State Service ■ Regulation 41 of the Emergency ' Miscellaneous Pi ^ . .ions and Powers)Regulation No. 1 of 1980 – Notice to quit Government quarters.
By regulation 41 o! the Emergency (Miscellaneous Provisions and Powers) Regula-tion No 1 o' 1980 any public servant who failed to report for work on or after 17thJuly 1980 was deemed for all purposes to have forthwith terminated or vacated hisemployment notwithstanding anything to the contrary in any other law or in the termsana conditions of any contract governing his employment. Termination of employmentin a generic sense can take place in many ways like death, effluxion of time, dismissal,ifetiremern. comixilsory or voluntary, resignation and vacation c' post The incidents ofterm.nation of employment can vary with the mode of termination Vacation of postresu’ts from ,rr act of the employee coupled with an act of the employer (servee ofnotice of vacation of post). By a deeming provision as m Regulation 41 a person couldhe deemed to have vacated his post even when he has otherwise a valid excuse for notattendii g his place of work and even though the employer has not served notice ofvacation of post. The fact that no official intimation was served on the petitioner thathe is deemed to have vacated his post is of no consequence. Vacation of post and dismis-sal are two different modes of termination of employment. Hence the reason 'hot inState service” is true and correct in fact and In law. Therefore there is no ground forcertiorari to issue to quash the notice to quit the government premises occupied by thepetitioner.
Cases referred to:
Billimoria v. Minister of Lands and Land Development and Mahaweli Deve-lopment [1978-7911 SLR 10
St. Aubyn v. Attorney-General (No.2)! 1952) AC 15.
F. Mustapha with P. K. IVithanachchi for petitioner
K. C. Kamalasabeyson S. C for respondents.
Cur adv vult
September 4,1981.
434
Sri Lanka Law Reports
[ 1981 j2 S.L.R.
SOZA, J.
The petitioner in this case was a public officer of the GeneralClerical Service and was last employed as a clerical servant in theDepartment of Agrarian Services. As he was a public servant thePublic Administration Division of the Ministry of Public Adminis-tration provided him with Flat No. H—60 of the GovernmentFlats, Torrington Avenue, Colombo 5 for the residence of himselfand the members of his family on a monthly rental of Rs. 77/-.The petitioner was a member of the Government Clerical ServiceUnion which is a trade union duly registered under the provisionsof the Trade Unions Ordinance. In pursuance of a decision tostrike taken by the Central Committee of the Government Cleri-cal Service Union on 12th July 1980 the petitioner joined thestrike and did not report for work from 17th July 1980. Subse-quently however in response to an announcement by the Govern-ment that public officers who struck work would be consideredfor re-employment the petitioner made an application for relief on3rd September 1980. It would seem that no relief was granted onthis application.
On 19th December 1980 the respondent to the present appli-cation who is the acting Director of Establishments, Ministry ofPublic Administration, Independence Square, Colombo 7 actingunder section 3 of the Government Quarters (Recovery of Posse-ssion) Act, No. 7 of 1969 served a notice (P2) on the petitionerrequiring him to vacate the Government Quarters occupied by himtogether with his dependants and to deliver vacant possession ofthem within two months from 19.12.1980. The reason for thequit notice is given as follows:
"As (you) are not in State service."
Under Section 3 of the Government Quarters (Recovery ofPossession) Act. No. 7 of 1969 a competent authority may at anytime serve or cause to be served on the occupier of any Govern-ment Quarters a notice stating the reasons for the issue of suchnotice and requiring the occupier to vacate such quarters togetherwith his dependants and deliver vacant possession of them to suchauthority or any other competent authority or authorised personas may be specified in the notice before the expiry of the period(not less than two months) specified in the notice.
The contention of the petitioner is that he has not beenserved with any intimation of vacation of post. No order hasbeen served on him that his services have been terminated. Whathe had done constituted legitimate trade union action and byresorting to such action he did not intend to effect a severance of
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Mimalasir: Je S>rva v. Gunatunga lSoza, Jj
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his contract of employment. The pleadings before us snow thattne piaintiff s not attending his place of work whatever the reasonmay be Even if mere has been no proper termination of thepetitioner's services it cannot be denied that tne petitioner is notnow working in the Department of Agrarian Services or in anyother Government department for that matter. The Minister ofAgricultural Development and Research had on 2. 12. 1980informed the Minister of Public Administration that the petitionermust be deemed to rave vacated his post – see R1.
I will examine the legal validity of the termination of thepetitioner's services, But before I do so I must mention that I amnot unmindful of the fact that interpretation of the Constitutionis not within the jurisdiction of this Court. This does not howevermean that this Court is precluded from considering the provisionsof the Constitution for the purpose of applying them in appropria-te cases – see the case of Billimoria v Minister of Lands and LandDevelopment and Mahaweli Development1. The termination ofemployment in the instant case is alleged to have taken place bythe operation of regulation 41 of the Emergency-(MiscellaneousProvisions and Powers) Regulation No. 1 of 1980 published inGazette Extraordinary No. 97/7 of 16.7.1980. Subsection (1)of regulation 41 is what is relevant for our purpose and it reads asfollows:
"Where any service is declared by order made by the President,under regulation 2 to be an essential service, any person who,on or after July 17, 1980. was engaged or employed, on anywork in connection with that service, fails or refuses after thelapse of one day from the date of such order to attend at hisplace of work or employment or such other place as may fromtime to time be designated by his employer or a person actingunder the authority of his employer, or who fails or refuses,after the lapse of one day from the date of such order, to per-form such work as he may be directed, by his employer or aperson acting under the authority of his employer to perform,he shall notwithstanding that he has failed or?refused to soattend or so work in furtherance of a strike —
be deemed for all purposes to have forthwith terminatedor vacated his employment notwithstanding anything tothe contrary in any other law of the terms of conditionsof any contract governing his employment; and
in addition, be guilty of an offence."
By this regulation any public servant who has failed to reportfor work on or after the 17th July 1980 shall be deemed for allpurposes to have forthwith terminated or vacated his employment
436
Sri Lanka Law Reports
: 1981}2 S.L.R.
notwithstanding anything to the contrary in any other law or inthe terms and conditions of any contract governing his employ-ment. Learned counsel for the petitioner argued that this regula-tion is inconsistent with Article 55 of the Constitution wherebythe appointment, transfer, dismissal and disciplinary control ofpublic officers is vested in the Cabinet of Ministers. He submittedthat it is only the Cabinet of Ministers who can make any orderfor the appointment, transfer, dismissal and disciplinary controlof public officers. The Cabinet of Ministers of course can delegatethese powers but this does not arise here. It is submitted thereforethat regulation 41 operates in derogation of a provision of theConstitution because it seeks, indirectly albeit, to effect thedismisal of a public officer who can be dismissed only by theCabinet of Ministers or its delegates and not by His Excellencythe President. The question then is. Does regulation 41 in factcontravene in any way the provisions of Article 55 of the Consti-tution? The Constitution speaks only of dismissal by the Cabinetof Ministers. The termination of employment considered in ageneric sense can take place in many ways like death, effluxion oftime, dismissal, retirement compulsory or voluntary, resignationand vacation of post. Without arty intervention by anyonetermination can take place by death or effluxion of the period ofemployment prescribed by law or the contract of employment.Where the employer terminates the employment he does so bydismissing the employee or perhaps retiring him compulsorily. Theemployee can terminate his contract of employment by resigna-tion arid voluntary retirement. Vacation of post is also by an actof the employee but here the employer has to serve notice ofvacation of post. The incidents of termination of employment canvary with the mode of termination. For instance, a person retiringmay be qualified to receive a pension but not a person dismissedfor misconduct. The termination contemplated in Article 55of the Constitution is dismissal, that is, by the employer, in thisinstance by the Cabinet of Ministers. Vacation of post results froman act of the employee coupled with an act of the employer andthis mode of termination of employment is not contemplated byArticle 55 of the Constitution. What regulation 41 states is that aperson who struck work on or after 17th July 1980 should bedeemed to have terminated or vacated his post. When a statutecarries a "deeming" provision what it does is to enact that some-thing should be deemed to have been done or taken place, whichin truth and in fact was not done or did not take place. In theHouse of Lords decision in St. Aubyn v Attorney-General (No.2)2Lord Radcliffe explained the expression "deemed" as-follows atpage 53-
"The word 'deemed' is used a great deal in modem legislation.Sometimes it is used to impose for the purposes of a statute anartificial construction of a word or phrase that would nototherwise prevail. Sometimes it is used to put beyond doubta particular construction that might otherwise be uncertain
a r pm
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Wimalasiri de Silva v. Gunatunga (Soea,J.)
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Sometimes it is used to give a comprehensive description that
includes what is obvious, what is uncertain and what is, in the
ordinary sense, impossible."
Therefore by a "deeming" section even that which cannot takeplace can be deemed to have taken place. All that regulation 41does is to place a fictional or hypothetical extension to themeaning of the expression vacation of post. Vacation of post ispresumed to have taken place without the act of the employer(service of notice of vacation of post).
It was contended that by regulation 41 His Excellency thePresident is doing indirectly what he cannot do directly, that is,effecting a dismissal which only the Cabinet of Ministers is entitledto do. What regulation 41 states is that a person who struck workon or after the 17th July 1980 would be deemed to have termina-ted or vacated his post. To contend that vacation of post by a"deeming" provision is the same as dismissal is to blur the distinc-tion between vacation of post and dismissal. Vacation of poston the deeming provision ensues on an act of the employee whiledismissal is unilaterally an act of the employer. Further the atten-dant consequences of vacation of post may differ from those ofdismissal. So these two modes of termination of employment arenot the same.
By a "deeming" statutory provision as in Regulation 41, aperson could be deemed to have vacated his post even when he hasotherwise a valid excuse for not attending his place of work eventhough the employer has not served notice of vacation of post. Ifa person does not attend his place of work in pursuance of a legiti-mate strike he cannot be said to have vacated his post becausesuch non-attendance is not intended to effect a severance of hiscontract of employment. But when the enactment carries the"deeming" provision that vacation will be deemed to have takenplace where he fails to attend his place of work in furtherance of astrike and without any notice of vacation of post by the employer.It will result in the legal presumption of a severance of the con-tract of employment by vacation of post. There can be no legalobjection to enacting a suspension of the right to strike if theinterests of the State warrant it and indeed none was taken beforeus. By the application of what may conveniently be called astatutory hypothesis the law deems him to have vacated his post.The fact that no official intimation was served on the petitionerthat he is deemed to have .vacated his post is of no consequence.By operation of law the petitioner is deemed to have vacated hispost irrespective of whether he was informed or not. It is commonknowledge however that such information was announced in thepress and over the radio. Further, this is not an argument that therespondent can be expected to meet. Communications concerning
Sri Lanka Law Reports
i 19811 2 S-L.R
vacation of post must come from the Department of AgrariaServices or the Ministry in charge of this Department who are nrparties to this suit and not from the Department of Publ
Administration.
In view of my conclusions it is not necessary to go into thequestion whether it is open .to the petitioner to subject regulation41 to collateral attack in these proceedings. But for this, thequestion would arise whether the petitioner can do indirectly whatle should do directly.
As the petitioner is deemed to have vacated his po& by virtuef a legal provision the reason given in the notice P2 is true andirrect in fact and in law. It cannot be said that there is any errori the face of the notice. Accordingly no ground exists whichistifies the intervention of this court by way of certiorari. Thispplication is therefore dismissed with costs.
TAMBIAH, J.
I agree.
Application dismissed. 1
1.(197879) 1 S.L.R. 10