YASEEN OMAR v. PAKISTAN INTERNATIONAL AIRLINES CORPOIRATION AND OTHERS

037-SLLR-SLLR-1999-V-2-YASEEN-OMAR-v.-PAKISTAN-INTERNATIONAL-AIRLINES-CORPOIRATION-AND-OTHERS.pdf


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Yaseen Omar v. Pakistan International Airlines
Corporation and Others
375
YASEEN OMAR
V.PAKISTAN INTERNATIONAL AIRLINES CORPORATION AND
OTHERS
SUPREME COURTDHEERARATNE, J.,
WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 28/96C.A. NO. 457/93CASE NO. TEU/C/8/90JUNE 14, 1999.
Industrial Dispute – Termination of employment – Termination of Employment ofWorkmen (Special Provisions) Act No. 45 of 1971 – Order under section 6 ofthe Act – Writ of certiorari – Natural justice – Section 17 of the Act.
The 1st respondent company (the employer) purported to terminate the servicesof the appellant (the workman) who was employed as its District Sales Manager.In an action instituted by the workman, the District Court granted a declarationthat he continued in service under the 1st respondent as District Sales Manager.On an appeal by the employer, the Supreme Court affirmed the judgment of theDistrict Court subject to a variation, that the purported termination was unlawful;hence, the workman continued to be in the service of the employer as DistrictSales Manager. Whereupon, the workman requested the employer to reinstatehim with back wages. The employer failed to do so; and the workman made acomplaint to the 2nd respondent (the Commissioner of Labour). After inquiry theCommissioner acting in terms of s. 6 of the Termination of Employment of Workmen(Special Provisions) Act, No. 45 of 1971 directed the employer to reinstate theworkman and to deposit a sum of Rs. 4,858,875 as back wages. That order wasbased on the findings of the 3rd respondent (Assistant Commissioner of Labour)who inquired into the complaint and recommended that in view of the judgmentof the Supreme Court the workman should be reinstated. He also recommendedthe payment of back wages. The quantum of the payment was supported by twodocuments setting out the details of salary and allowances of the workmanproduced at the inquiry which documents were not challenged by the employer.
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Sri Lanka Law Reports
11999] 2 Sri LR.
Held:
Neither the Common Law nor principles of natural justice require as ageneral rule that administrative tribunals or authorities should give reasonsfor their decisions that are subject to judicial review.
There is no statutory requirement imposed on the Commissioner to givereasons for his decision; nor do the circumstances reveal that he actedin contravention of section 17 of the Act which requires him to hold theinquiry in a manner not inconsistent with the principles of natural justice.
The Court of Appeal erred in setting aside the order of the Commissioneron the ground that 'giving of reasons is a sine qua non for a fair hearing*.
Cases referred to :
Padfield v. Minister of Agriculture – (1968) AC 997.
R v. Secretary of State for Social Services ex parte Connolly – (1986) 1WLR 421.
Public Service Board of New South Wales v. Osmand – (1985-86) 159Commonwealth Law Reports 657.
Samalanka Limited v. Weerakoon, Commissioner of Labour and Others- (1994) 1 Sri LR 405.
R v. Higher Education Funding Council, ex parte Institute of Dental Surgery
– (1994) ALL ER 651.
R v. Civil Service Appeal Board ex parte Cunningham – (1991) 4 ALLAER 310.
Doody v. Secretary of State for the Home Department – (1993) 3 ALLER 92.
APPEAL from the judgment of the Court of Appeal.
R. K. W. Goonesekera, with G. Alagaratnam and S. Jayatilake for appellant.Faisz Musthapha, PC with N. Joseph and J. C. Boange for 1st respondent.Harsha Fernando, SC for 2nd and 3rd respondents.
Cur. adv. vult.
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Yaseen Omar v. Pakistan International Airlines
Corporation and Others (Bandaranayake, J.)
377
September 22, 1999.
BANDARANAYAKE, J.
Special leave to appeal was allowed by this Court on the followingquestions :
did the Court of Appeal err in setting aside the impugned orderY4 on the ground that the giving of reasons is a sine qua nonfor a fair hearing;
in any event was the Court of Appeal in error in setting asidethe entire order including the determination for reinstatement;
was the Court of Appeal in error in holding that the impugnedorder was vitiated by the failure to give reasons in the factsand circumstances of this case;
is the impugned order vitiated by the failure on the part of the2nd respondent and/or 3rd respondent to place material beforethe Court of Appeal in support of the said order.
The 1st respondent petitioner (petitioner) was appointed by thepetitioner – 1st respondent (1st respondent) as its District SalesManager with effect from August, 1971 and was functioning as itsManager. By letter dated 20.11.1974, the 1st respondent purportedto terminate the services of the petitioner with effect from 01.01.1975.The petitioner instituted action in the District Court of Colombo fora declaration that he held the office of District Sales Manager of the1st respondent and that his services had not been lawfully terminated.The District Court granted the declaration as prayed for and held thatthe petitioner continued in service with and under the 1st respondentas District Sales Manager. On an appeal the Court of Appeal affirmedthe said judgment. The respondent appealed to the Supreme Courtand the Supreme Court by its judgment dated 25.02.1987 affirmedthe said judgment subject to a minor variation and held that terminationof the services of petitioner was not lawful and that he continued tobe in the services of the respondent as Direct Sales Manager. The
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petitioner, thereafter, had repeatedly requested the respondent tocomply with the judgment of the Supreme Court and to reinstate himwith back wages. The 1st respondent had failed to do so.
By letter dated 12.01.1998 the petitioner requested the 2nd re-spondent to make an appropriate order under the provisions of theTermination of Employment of Workmen (Special Provisions) Act No.45 of 1971. On a letter sent by the petitioner on 24.09.1990, the 2ndrespondent instituted an inquiry and made order (Y4) dated 30.04.1993directing the respondent to reinstate the petitioner with effect from17.08.1993 and to deposit a sum of Rs. 4,858,875 as back wagesof the petitioner.
The 1st respondent did not comply with the order of the Com-missioner of Labour (2nd respondent) but, appealed against the orderof the 2nd respondent to the Court of Appeal for the issue of a mandatein the nature of a writ of certiorari quashing the order of the 2ndrespondent (P1, P2, P3, P3a). The Court of Appeal by its order dated24.10.1995 held that the failure of the 2nd respondent to give reasonsfor his order was in breach of section 17 of the Termination ofEmployment Act, No. 45 of 1971 and allowed the application for theissue of the writ of certiorari -and quashed the order of the 2ndrespondent. The petitioner came before this Court against the saidorder of the Court of Appeal.
Learned counsel for the petitioner submitted that the order madeby the Court of Appeal granting the application of the 1st respondentfor the issue of a writ of certiorari to quash the order given in Y4dated 30.04.1993 made by the 2nd respondent, was on the soleground that the "Commissioner had failed to give reasons for theimpugned order". Learned counsel for the petitioner was of the viewthat although giving of reasons by a tribunal may be desirable, failureto give reasons will not ipso facto render void the decision of thetribunal when there is no statutory requirement mandating the tribunalto set down the reason for its decision. Also, when there is no generalrule of common law or natural jusiice, requiring reasons to be givenfor every administrative decision, failure to give reasons would notrender the decision of a tribunal invalid. '
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Yaseen Omar v. Pakistan International Airlines
Corporation and Others (Bandaranayake, J.)
379
Learned President's Counsel for the 1st respondent submitted thatthe Assistant Commissioner of Labour (3rd respondent) purported toset out only the computation of the back wages and did not give anyreasons for the findings of termination or for ordering reinstatement.The position taken by the learned President's Counsel was that the2nd respondent, who made the order did not file an affidavit and assuch furnished no reasons to the Court.
The impugned order (Y4), made by the 2nd respondent with regardto the termination of services of the petitioner was in the followingterms:
cafflaf S®ot5 Saoeof edOca qOosf S3®.
{aod-eSca eaSOdOecaaf adOtacao 88sd 1988.01.12 too 1990.03.24ijsaacf ®o sQa <g^5oaf tadsa e<^ e^S-So^e ©j aaS.
02. 198851 ^d«S too 1976 tf-ts 04 <^d«S ojnzsfOQjyf a*0axfSia
197145 $6-e& edOataated sdQa tfOasi zS5©@ (Secrf® SSSOasi)
ezned 6 Oaa OeaciSscarf ®o eOs oj©SSeise <?£)0 otoia
CO e^Saasd to® oncost edOacaa 1993.05.1780 sod edOecaS®
dOaomcaad sdOca jnad tad 88 aoeo a^too 8to OjQd Deoeazsid® an® <j^3scad i^tsSOo tftS §<;e O® edOacaoO s©8® oqtoo 1993.05.17eexl 30 sod a®a>dj eao®O30d eO» abated zadzn sea e®8afSteaJeo tad®.
in setting aside this order (Y4), the Court of Appeal held that thegiving of reasons is a sine qua non for a fair hearing. Referring tothe decision in Padfield v. Minister of Agriculture!", the Court of Appealhad stated that:
"Thus, if the Commissioner fails to disclose his reasons to theCourt exercising judicial review, an inference may well be drawnthat the impugned decision is ultra vires and relief granted onthis basis."
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Sri Lanka Law Reports
[1999] 2 Sri LR.
It is common ground that an inquiry was held with regard to thetermination of the petitioner from the services of the 1st respondentCorporation. Discussing the need to give reasons for administrativedecisions, it is stated in de Smith's Judicial Review of AdministrativeAction, that –
"It has long been a commonly recited proposition of English lawthat there is no general rule of law that reasons should be givenfor administrative decisions. On this view, a decision-makeris not normally required to consider whether fairness or naturaljustice demands that reasons should be provided to an individualaffected by a decision. This is because the giving of reasonshas not been considered to be a requirement of the rules ofprocedural propriety . . .
As a general proposition, it is still accurate to say that the lawdoes not at present recognize a general duty to give reasons foran administrative decision'." (5th edition, 1995 at pp 457-458).
An examination of several decisions taken in different jurisdictionsreveal that neither the common law nor principles of natural justicerequire, as a general rule, that -administrative tribunals or authoritiesto give reasons for their decisions that are subject to judicial review(ft v. Secretary of State for Social Services, ex parte Connolly<2>,Public Service Board of New South Wales v. Osmond3)).
The necessity for the Commissioner of Labour to give reasons forhis decision was considered by this Court in Samalanka Limited v.Weerakoon, Commissioner of Labour and Others. In this case theappellant was a company established with foreign collaboration. Theagreement with the foreign collaborator broke down and productioncame to a standstill in November, 1983. On an application madeby the appellant company, the Commissioner of Labour grantedpermission to terminate the employment of its workmen under theTermination of Employment of Workmen (Special Provisions) Actsubject to the payment of compensation of gratuity. An applicationwas made for a writ of certiorari to quash the decision by the appellant
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Yaseen Omar v. Pakistan International Airlines
Corporation and Others (Bandaranayake, J.)
381
on the ground that the award of 15 months gross salary for eachworkman was unjustified as it was fixed arbitrarily and no reasonswere given. It was held that in the absence of a statutory requirementthere is no general principle of administrative law that natural justicerequires the authority making the decision to adduce reasons, providedthat the decision is made after holding a fair inquiry.
In Ft. v. Higher Education Funding Council, ex parte Institute ofDental Surged, the Queen's Bench Division had examined thedecisions in R. v. Civil Service Appeal Board, ex parte Cunningham!®>,Doody v. Secretary of State for the Home Department* and severalother judgments regarding the need to give reasons for the decision.In this case the respondent council, which was established by section131 of the Education Reform Act 1988, was responsible for admin-istering state funding for the provision of education and research byuniversities. By section 131 (6) the council had power to make grantsfor research to universities. The council appointed a panel of academicspecialists to assess and rate universities and other research insti-tutions falling within the council's remit for the purpose of providingfunding on the basis of the quality of the research undertaken. In1992 the applicant institute, a university college entirely dedicated topost-graduate teaching and research in dentistry, was rated 2.0 ona 5 point scale. The applicant institute had previously been rated 3.0and the lower rating was directly reflected in a reduction in fundingof approximately 270,000 sterling pounds. No reasons were given forthe reduction in the applicant institute's rating and in further corre-spondence the chief executive of the council refused to disclose thepanel's reasons for the lower rating and refused to consider any appealagainst the assessment unless it was shown that the assessment hadbeen made on the basis of erroneous information. The applicantinstitute applied for judicial review of the council's decision to assessits rating as 2.0 contending, inter alia, that the council had actedunfairly in failing to give reasons for its decision and stating that inthe absence of its reasons its decision was irrational.
It was held that there was no duty cast on administrative bodiesto give reasons for their decisions either on general grounds of fairness
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[1999} 2 Sri LR.
or simply to enable any grounds for judicial review of a decision tobe exposed. After an exhaustive examination of the legal positionrelating to the ‘duty to give reasons', Sedley, J. stated in a summarythat –
there is no general duty to give reasons for a decision, butthere are classes of cases where there is such a duty;
one such class is where the subject-matter is an interest sohighly regarded by the law – for example personal liberty -that fairness requires that reasons, at least for particulardecisions, be given as of right;
another such class is where the. decision appears aberrant.
It has been observed that the 2nd respondent had disclosed thematerial which he took into consideration in calculating and makingthe award for back wages. The documents relied upon by the 2ndrespondent were produced at the inquiry (A16 and A17). The salarydetails and the allowances the petitioner was entitled to were givenin these two documents (A16 and A17). It is common ground thatthese two documents were not challenged by the 1st respondent.
The 3rd respondent who inquired into the complaint of the petitionerhad sent a report to the 2nd respondent. In this report, the 3rdrespondent had stated that:
“Since the Supreme Court by its judgment dated 25th July, 1987,upheld the judgment of the District Court, it should be held thatthe applicant in terms of the judgment of District Court continuedin employment with the Company and that there had been notermination in law of the applicant’s employment (SC 56/85).
The workman had marked two documents A16 and A17 at theinquiry. Salary details and the allowances were given in thosetwo documents. Those documents were not challenged by theemployer.
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Yaseen Omar v. Pakistan International Airlines
Corporation and Others (Bandaranayake, J.)
383
Considering above facts, evidence and the documents placedbefore me I recommended that the workmen should be reinstatedwith effect from 17.05.1993 with back wages. The details of theback wages are given below.
Calculating the back wages, calculation was done accordingto the marked documents (A16 and A17) and the letter of appoint-ment …"
The function of the 2nd respondent was to determine the totalamount due to the petitioner by loss of employment. For this purposethe petitioner had furnished evidence for the calculation of the amountand as submitted by the learned counsel for the petitioner, the 1strespondent did not challenge the accuracy or the correctness of thesefigures at the inquiry.
The Court of Appeal had held that the "failure to give reasons isa breach of section 17 of the Termination of Employment of WorkmenAct, No. 45 of 1971, because it is inconsistent with the principles ofnatural justice". Section 17 of the Act reads as follows:
“The proceedings at any inquiry held by the Commissioneer forthe purposes of this Act may be conducted by the Commissionerin any manner, not inconsistent with the principles of natural justice,which to the Commissioner may seem best adapted to elicit proofor information concerning matters that arise at such inquiry:
The duty of the Commissioner for the purposes of the Terminationof Employment of Workmen Act is to see that the proceedings at anyinquiry to be conducted in a manner "not inconsistent with theprinciples of natural justice". Referring to the need for reasons fordecisions, Wade has stated that:
"Although the lack of a general duty to give reasons isrecognised as an outstanding deficiency of administrative law, theJudges have gone far towards finding a remedy by holding thatreasons must be given where fairness so demands; and the casemore often than not" (Administrative Law, 7th edition, 1994pp 544-545).
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[1999] 2 Sri L ft.
In fact, according to section 2 (2)d of the Act,
“the Commissioner shall give notice in writing of his decisionon the application to both the employer and the workman.'
Therefore, there is no such statutory requirement imposed on the2nd respondent to give reasons for his decision. The circumstances,however, does not reveal that the 2nd respondent had acted in amanner in contravening section 17 of the Act. In contrast it couldbe said that his action has been ‘not inconsistent' with the rules ofnatural justice.
For the aforesaid reasons I hold that the Court of Appeal errediri setting aside the impugned order (Y4) on the ground that givingof reasons is sine qua non for a fair hearing. Furthermore, the Courtof Appeal had set aside the entire order including the order for re-instatement. I, accordingly, hold that the order marked Y4, must berestored and be given full effect. The appeal is allowed, but in allthe circumstances, without costs.
DHEERARATNE, J. – I agree,WADUGODAPITIYA, J. – I agree.
Appeal allowed.