[2007] 1 SRI L.R. – PARTS 5- 6

2007-1-sri-l-r-parts-5-6

THE
Sri Lanka Law Reports
Containing cases and other matters decided by the
Supreme Court and the Court of Appeal of
the Democratic Socialist Republic of Sri Lanka
[2007] 1 SRI L.R. – PARTS 5- 6
PAGES 113-168
Consulting Editors : HON. S.N. SILVA, Chief Justice
Editor-in-Chief
Additional Editor-in-Chief
HON. P. WIJERATNE, J. President,
Court of Appeal (upto 27.02.2007)
HON K. SRIPAVAN, J. (from 27.02.2007)
K. M. M. B. KULATUNGA, PC
ROHAN SAHABANDU
Price: Rs. 40.00
PUBLISHED BY THE MINISTRY OF JUSTICE
Printed at Sarvodaya Vishva Lekha, RatmalanaD I G E S T
Page
CIVIL PROCEDURE CODE,
(1) Divorce – Ground of constructive malicious desertion – Requirements –
Burden on whom? Is it a question of fact? Matrimonial relief only to the
innocent spouse?
Neville Fernando v Chandrani Fernando 1 5 9
(2) S114 (3) – S154 (3) – S187 – Documents marked become part of the
record – Should Court call for documents? Answering of issues –
Bare answers – adequate ?
Perera v Caldera and others
FUNDAMENTAL RIGHTS, Constitution Art 12(1), Art 29, Art 126 (4) – 13th
Amendment – Grade 1 admissions to National Schools – Circular arbitrary
unequal and capricious – National Policy – Affirmed by Cabinet of
Ministers?- Classification – ‘Royster formulation’ National Education
Commission Act 19 of 1991 – S2-Education Ordinance.
Haputhantlrige and ohers v Attorney General 113
(Continued from Part 4)
PARTITION LAW, S35 Amendment – Act 17 of 1977 – Scheme Inquiry –
Original defendant permitted to object to final plan – Can the person who is
substituted be given another opportunity to consider plan/ report?
Jayatissa v Appuhamy 155
TERMINATION OF EMPLOYMENT OF WORKMEN, (Special Provisions)
Act 45 of 1971 (TEW Act) – S2 (1), S2(1) b, S2 (2), S5, S6 – move to merge
two Banks – termination of services of employees – Industrial Disputes Act
– S48 – Absolute discretion vested in the Commissioner of Labour – Bona
fides – Natural Justice – Bias – Retrenchment only on a voluntary basis –
Method of selection – Arbitrary? Writ of Certiorari futile?
Kumara Fernando and others v Commissioner of Labour and
others 124sc
Haputhantirige and others v
Attorney General (Sarath N. Silva, CJ) 113
President’s Counsel submitted that reserving of 2% of the
vacancies for persons who return from abroad results in an
incongruity where places may have to be kept vacant for such
persons denying facilities to children who have had continued
residence within the country. These vacancies are later filled in a
surreptitious way. It appears that there is no end to the list. The
maximum of 40 for a class is exceeded by far and at times a whole
new class is established to accommodate those who are favoured. 350
Since the challenge to the validity of the Circular has far
reaching implications, I have to examine the grounds urged from
the ambit of the fundamental right to equality guaranteed by Article
12(1) of the Constitution.
The Preamble of the Constitution states the “immutable
republican principles” on which it is based as being
“Representative Democracy” and the assurance to all people
“Freedom, Equality, Justice, Fundamental Human Rights and the
independence of the judiciary”. These principles partake of
Democracy and Socialism being the components of the name of 360
the Republic.
The principle of equality acquires a functional dimension as
the fundamental right to equality guaranteed by Article 12 of the
Constitution. Sub Article (I) sets out the positive element of the
right, that “all persons are equal before the law”. The other
provision in Sub Article (1) which guarantees “the equal protection
of law” and the bar against discrimination on grounds of race,
religion, language, caste, sex, political opinion or place of birth
contained in Sub-Article (2), are the safeguards that assure
equality before the law. Taken in the context of the republican 370
principle of equality and the functional guarantee thereof, the
phrase “the law” as appearing in Article 12 has to be interpreted in
a wider connotation than the terms “law” and “written law” defined
in Article 170 of the Constitution, to encompass any binding
process of regulation. Since the jurisdiction of this Court in terms of
Article 126 and the right as contained in Article 17 to invoke such
jurisdiction is in relation to executive or administrative action, the
guarantee of the right to equality in Article 12 should extend to any
binding process of regulation laid down by the executive or the
administration which affects persons in its application. 380114 Sri Lanka Law Reports [2007] 1 SriL.R
It is necessary at this point to ascertain “the law”, including any
binding process of regulation, from the perspective of which the
alleged infringement has to be judged.
The law in its primary sense of an Ordinance or Enactment of
the legislature relating to Education, is contained in the Education
Ordinance originally proclaimed in 1939, prior to the granting of
independence. A perusal of the provisions of the Ordinance reveals
that these provisions have fallen into disuse. A similar observation
has to be made as regards the exhaustive regulations that have
been made under the Ordinance. They are contained in nearly 200 390
pages in the Volume of Subsidiary Legislation.
I have to digress at this point to state albeit briefly the
sequence of events in which the Education Ordinance as amended
and the Regulations made thereunder fell into disuse.
The Ordinance established the Department of Education as
the Central Authority for Education which functioned under the
general direction and control of the Minister. There was a Central
Advisory Council to advise the Minister and Local Advisory
Committees in different parts of the country at the level of
Municipal Councils, Urban Councils, Town Councils and Village 400
Councils. These Advisory Committees looked into the educational
needs of the particular areas. The Government functioned as the
regulator of education and standards were laid down and
enforced through a system of School Inspectors, Directors and
the like. The schools were separately managed by religious and
non religious bodies and received assistance from the
Government. Hence there were mainly the “Assisted Schools”
and a few Private Schools. The education system thus structured
including the Central Colleges became a model for the whole
Region and the country achieved the much acclaimed high levels 410
of literacy and of academic excellence. There have been drastic
changes in the system commencing from 1961 when the
management of “Assisted Schools” was taken over by the
Government. Thereby, the Government became the manager of
virtually all schools and shed its role as the regulator and
supervisor. The well structured law and the comprehensive
Regulations became mere pages in the Statute books.sc
Haputhantirige and others v
Attorney General (Sarath N. Silva, CJ) 115
Then, we come to the 13th Amendment to the Constitution
which inter alia, provided for the devolution of power to Provincial
Councils. In terms of section 3 of List 1 in the 9th Schedule to the 420
13th Amendment, “Education and Educational Services” to the
extent set out in Appendix III are devolved to Provincial Councils.
Section 1 of Appendix III states that the provision of facilities to all
State schools, other than specified schools shall be the
responsibility of the Provincial Council. It is there provided that
specified schools will be “National Schools”. The concept of
“National Schools” derives solely from its single reference to it in
Appendix III. Almost all leading Government schools have been
declared as being “National Schools”. The Education Ordinance
has not been amended to provide for the newly emerged situation 430
and there is no law that is operative as regards National Schools or
for that matter, as far as I could discover in regard to any school.
The alarming situation is that Education being the foremost
responsibility of Government has been operating for a long period
of time in a legal vacuum. Where there is no law it is anarchy that
prevails. In this vacuum shorn of the carefully structured regulatory
and supervisory system, with Advisory Councils at different levels,
self styled experts exercising the freedom of the wild ass have
dangerously tampered with the process, to bring about chaos. The
resultant tragedy is revealed in a survey carried out by the National 440
Education Commission, according to which reportedly 18% of the
Grade VI students are illiterate. It is unnecessary for the purpose of
this judgment to delve into the other alarming revelations of this
survey.
It appears that the impugned Circular P1 itself is referable to
the opening line of List II (Reserve List) in the 13th Amendment
which states that “National Policy on all subjects and functions” will
come within the Central Government. Hence we have a situation
where the law as contained in the Education Ordinance and the
elaborate system of regulations having fallen into disuse and the 450
matter of admission to schools being regulated by a Circular
purporting to be a statement of National Policy. It is plain to see that
the Circular does not have any of the general characteristics that
pertain to policy. It has a classification of 7 categories, a scheme of
weighted marking and a related identification of documents that116 Sri Lanka Law Reports [2007] 1 SriL.R
could be received in evidence. From a functional perspective it is
the binding process of regulation laid down by the executive as
regards the matter of admission to Government Schools. On the
reasoning stated above it would constitute “the law” within the
purview of Article 12(1) of the Constitution in reference to which the 460
alleged infringement of the right to equality has to be judged.
I have now to revert to the right to equality guaranteed by
Article 12(1) and the basis on which its content would be applied to
judge an alleged infringement. Dr. Wickremaratne (Fundamental
Rights in Sri Lanka – 2006 Second Edition at page 286) citing from
the renowned exponent of Socialism, Harold Laski (A Grammer of
Politics), C.G. Weeramantry and the Judgment of Brewer J., sums
up the concept of equality and the manner in which the equal
protection of law applies, as follows:
“Equality, as Laski stated, does not mean identity of 470
treatment. ‘There can be no ultimate identity of treatment so
long as men are different in want and capacity and need’.
Men are unequal in strength, talent and other attributes.
While some of these are natural, others are referable to the
society in which they live. Some are born with advantages.
Other factors and combinations of factors may favour some
people and place others at a disadvantage. To quote
Weeramantry:
“As the myriads of constituent units of a society keep thus
shifting their positions relative to each other, absolute 480
equality among (men) even in one characteristic of for a
moment of time is patently an impossibility. Far greater is the
impossibility of preserving general equality for any period,
however short. A permanent state of equality is only the
remotest dream.”
Equal protection does not mean that all persons are to be
treated alike in all circumstances. It means that persons who
are similarly circumstanced must be similarly treated. The
State is however permitted to make laws that are unequal
and to take unequal administrative action when dealing with 490
persons who are placed in different circumstances and
situations. Thus the State has the right to classify personsHaputhantirige and others v
SC Attorney General (Sarath N. Silva, CJ) \}]_
and place those who are substantially similar under the same
rule of law while applying different rules to persons differently
situated. “A classification should not be irrational or arbitrary.
It must be reasonable and based on some real and
substantial distinction, which bears a reasonable and just
relation to the act in respect of which the classification is
proposed and can never be made arbitrary and without any
such basis.” 500
The requirement stated by Brewer J., in the case of Gulf
Colarado and Santa Railway Co v EthisC*) cited above, has been
subsequently stated as the “Basic standard” to be satisfied in a
permissible clarification. The classic formulation of the “basic
standard” is that stated in the case of Royster Guano Co. v
Commonwealth of Virginia^ at 415. It reads as follows:
” classification must be reasonable, not arbitrary, and
must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all
persons similarly circumstanced shall be treated alike.” 510
Therefore in applying what has been described as the “Royster
formulation” to test the validity of classification we have to first look
at the object of the law and then consider whether the classification
could be reasonably related to achieve the object. As noted above
the law as contained in the Ordinance and Regulations have fallen
into disuse. The constitutional scheme for devolution of power in the
subject of education has been defeated to a great extent by recourse
to a single reference to “National Schools” in Appendix III. We are
confronted with a jurisprudential paradox of a Circular purporting to
be a statement of National Policy being is the only binding process of 520
regulation as regards admission of students to Government Schools.
The Circular has been issued in the exercise of the power reserved
to the Government to formulate “National Policy” on all subjects and
functions.
There is no provision in the 13th Amendment that defines the
ambit of Government action that would come within the broad
phrase, ‘National Policy’.
Maxwell on The Interpretation of Statutes, under the heading
“An Act is to be regarded as a whole” (12th Ed. Page 58) states that118 Sri Lanka Law Reports [2007] 1 SriL.R
” one of the safest guides to construction of sweeping 530
general words which are hard to apply in their full literal
sense is to examine other words of like import in the same
instrument, and see what limitations must be imposed on
them ”
The relevant principle of interpretation with particular
reference to the interpretation of provisions in a Constitution is set
out in Bindra’s Interpretation of Statutes – 9th Ed. page 1182 as
follows:
” The Constitution must be considered as a whole, and so as
to give effect, as far as possible, to all its provisions. It is an 540
established canon of constitutional construction that not one
provision of the Constitution is to be separated from all the
others, and considered alone, but that all the provisions
bearing upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great purpose of
the instrument.”
In applying these principles of interpretation I am of the view
that the broad phase “National Policy” appearing at the top List II
should be interpreted together with the relevant provisions in
Chapter VI of the Constitution which contains the “Directive 550
Principles of State Policy.”
The limitation in Article 29 which states that the provisions of
Chapter VI are not justiciable would not in my view be a bar against
the use of these provisions to interpret other provisions of the
Constitution. Article 27 of Chapter VI lays down that the ‘Directive
Principles of State Policy’ contained therein shall guide
“Parliament, the President and the Cabinet of Ministers in the
enactment of laws and the governance of Sri Lanka for the
establishment of a just and free society.” Hence the restriction
added at the end in Article 29 should not detract from the noble 560
aspirations and objectives contained in the Directive Principles of
State Policy, lest they become as illusive as a mirage in the desert.
As regards education, the policy objective is stated in section
27(2) (h) as follows:
“The state is pledged to establish in Sri Lanka a democratic
socialist society, the objectives of which include -sc
Haputhantirige and others v
Attorney General (Sarath N. Silva. CJ) 119
(h) the complete eradication of illiteracy and the assurance to all
persons of the right to universal and equal access to education at
all levels.” 570
777/s objective as to equal access to education has gained
recognition in section 3(2) of the Tertiary and Vocation Education
Act No. 20 of 1990.
Equal opportunity in the matter of education was held by the
Supreme Court of the United States to be a requirement of the
Equal Protection Clause (similar to Article 12) of the Fourteenth
Amendment to the Constitution. In Brown v Board of Education
TopikaP) – Chief Justice Warren delivering the opinion of the Court
stated as follows: (at 493):
“Today, education is perhaps the most important function of 580
State and local governments. Compulsory school attendance
laws and the great expenditures for education both
demonstrate our recognition of the importance of education
to our democratic society. It is required in the performance of
our most basic responsibilities, even service in the armed
forces. It is the very foundation of good citizenship. Today it
is a principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in
helping him to adjust normally to his environment. In these
days, it is doubtful that any child may reasonably be 590
expected to succeed in life if he is denied the opportunity of
an education. Such an opportunity, where the State has
undertaken to provide it, is a right which must be made
available to all on equal terms.”
Hence both from the perspective of the application of the
equal protection of the law guaranteed by Article 12(1) and from the
perspective of national policy, the objective of any binding process
of regulation applicable to admission of students to schools should
be that it assures to all students equal access to education.
On the reasoning stated above the question before this Court 600
narrows down to whether the classifications of students for
admission in the impugned Circular P1 and the criteria laid down120 Sri Lanka Law Reports [2007] 1 SriLR
therein can be reasonably related to the objective of providing
equal access to education.
The preceeding analysis reveals that the classification in P1 is
not based on the suitability and the need of a particular child to
receive education in a national school or any other State School.
The classification is based on wholly extraneous considerations
such as the residence of the parents to be ascertained from the
ownership of property; whether the parent is a past pupil and if so 610
for what period and his achievements; whether the child to be
admitted has a brother or sister in the school and if so the brother’s
or sister’s achievements or whether the parent has been
transferred in the manner that has been referred to above. The
suitability and the need of the particular student to receive
education in the school is not ascertained in the process, nor is
there any method and criteria specified to ascertain such matters.
Similarly, the system of weighted marking referred to above as
contained in the Circular completely defeats the objective of
providing equal access to education. 620
For the reasons stated above we hold that the Circular P1
applicable in the matter of admission of students is inconsistent
with the fundamental right to equality before the law and the equal
protection of the law guaranteed by Article 12(1) of the Constitution,
in so far as it relates to the admission of students to Grade I of
national schools and other schools to which the Circular has been
made applicable.
We are mindful of the resultant position, that there would be no
binding process of regulation in the matter of admission of students
to Grade I. This would not normally be the consequence of a 630
declaration of invalidity of executive or administrative action since
fresh action can be taken under the applicable law. In this instance,
as noted above law and written law relevant to education have
fallen into disuse resulting in a legal vacuum.
Since the jurisdiction of this Court in terms of Article 126(4) of
the Constitution empowers the court to make “directives as it may
seem just and equitable in the circumstances,” we consider it
appropriate to indicate a course of action which in our view may
alleviate the situation that has come to an impasse.sc
Haputhantirige and others v
Attorney General (Sarath N. Silva. CJ) 121
The authorities have failed over the decades that elapsed to 640
provide an effective to legal machinery to manage, regulate and
supervise education. The Ministry of Education appears to have
formulated P1 as the purported National policy outside the
framework of the law, which fact by itself would suffice to declare
invalid. Section 2 of the National Education Commission Act No. 19
of 1991, empowers the President to declare from time to time the
national Education Policy which shall be conformed to by all
authorities and institutions responsible for education in all its
aspects. The policy is formulated on the recommendations and
advice of the Commission and in terms of section 2(2) includes, 650
inter alia:
“. methods and criteria for admission of students”
This in our view is the proper guideline for the formulation of a
policy. The Ministry fell into error by laying down classifications,
quotas and a system of weighted marking being elements
completely antithetic to the guarantee of equality before the law
whereas the focus should be on appropriate methods and criteria
that would apply in the process of effecting admissions.
In the situation that has arisen we are of the view that it is
appropriate for immediate action to be taken in terms of the 660
National Education Commission Act for the formulation of a policy
setting out methods and criteria for admission of students.
Counsel submitted that leading private schools in Colombo
have adopted different methods to be applied in the admission of
students. The methods have been in certain instances structured to
include interviews with parents and children and a suitable test
which should be faced by the children seeking admission. These
tests not being written tests are based on the methodology that is
adopted in pre-school education. It has now been established by
clear scientific evidence that all the elements that go to develop 670
character and personality are in place by the time a child reaches
the age of 5 years. Detailed studies have been done in the United
Kingdom in this regard under a separate Ministry in charge of the
subject of Children. In the circumstances there is a wealth of
experience, both in this country and outside on the basis of which
a suitable methodology and criteria could be adopted for admission
of children particularly to Grade 1.122 Sri Lanka Law Reports [2007] 1 SriLR
The National Education Commission may if it is considered
appropriate seek the assistance of child psychologists and
competent pre-school educators in formulating the appropriate 680
methods and criteria. The process of interviews and tests to be
included have to be transparent and all safeguards should be put
in place to minimize allegations of favourism.
The present situation has resulted in a gross abuse of the
process of admission of students. In the circumstances it would be
necessary to devise a new process in which the participation of
authorities who have brought about the tragic situation be excluded
and the process to be administered directly under the purview of
the President as provided in the National Education Commission 690
Act.
The demand for education in leading schools in Colombo and
other urban centers result from the lack of appropriate facilities in
the outer areas. In the circumstances the national policy should
also encompass a suitable program to develop a minimum of two
schools in each Divisional Secretariat Division so that with the
passage of time these schools would reach the same standard as
that of national schools.
The final matter to be addressed is in relation to the other
applications pending before this Court and the Court of Appeal.
Further litigation is not warranted in view of the finding of illegality 700
as to the Circular P1 in respect of admission to Grade 1. In the
circumstances suitable administrative relief should be granted to
the persons affected. Since the availability of places in schools is a
variable factor which cannot be addressed in Court, a Committee
may be established to ascertain the grievances of the persons who
have already invoked the jurisdiction of Court and to grant
administrative relief, if it is established that any student concerned
is suitable for admission to a particular school. This process would
be available only to persons who have already invoked the
jurisdiction of Court considering the administrative difficulties that 710
would otherwise arise if the floodgates are opened at this stage for
another series of applications for relief in the matter.
Considering the directions that are made in this Judgment, the
Registrar of this Court is directed to send a copy of this judgmentsc
Haputhantirige and others v
Attorney General (Sarath N. Silva. CJ) 123
to the Secretary, to His Excellency the President to facilitate action
as stated above.
The national policy on school admission to be formulated may
be submitted to Court for the policy to be examined from the
perspective of the fundamental right to equality before the law and
the equal protection of the law guaranteed by Article 12(1) of the 720
Constitution.
S.C.(FR) Applications 10 to 13/2007 are allowed and the
petitioners are granted the declaration that their fundamental rights
guaranteed by Article 12(1) of the Constitution have been infringed
by executive and administrative action.
It is further declared that the Circular marked P1 is
inconsistent with Article 12(1) of the Constitution and is invalid and
of no force or avail in law in respect of admission of students to
Grade 1 in the schools to which the Circular is addressed.
No costs. 730
DISSANAYAKE, J. – I agree.
SOMAWANSA, J. – I agree.
Relief granted.
National Policy on school admission to be formulated and
submitted to the Supreme Court124 Sri Lanka Law Reports [2007] 1 SriLR
KUMARA FERNANDO AND OTHERS
v
COMMISSIONER OF LABOUR AND OTHERS
COURT OF APPEAL
IMAM, J.
SRISKANDARAJAH, J.
CA 2282/02
CA 1070/03
CA 1080/03
NOVEMBER 29, 2006
JANUARY 23, 2007
Termination of Employment of Workmen (Special Provisions) Act 45 of 1971
(TEW Act) – S2 (1), S2(1) b, S2 (2), S5, S6 – move to merge two Banks –
Termination of services of employees – Industrial Disputes Act – S48 –
Absolute discretion vested in the Commissioner of Labour – Bona fides –
Natural Justice – Bias – Retrenchment only on a voluntary basis – Method of
selection – Arbitrary? Writ of Certiorari futile?
In August 2000 the Standard Chartered Bank (SCB) acquired the Banking
operations of ANZ Grindlays Bank Ltd., and subsequent to the acquisition ANZ
Grindlays Bank Ltd., changed its name to Standard Chartered Grindlays Bank
Ltd. (SCGB)
The two Banks made a application under S2 (1) (b) of the TEW Act seeking
the approval of the Commissioner to terminate the services of certain
employees. This was approved.
The petitioners in the three applications sought to quash the order of the
Commissioner of Labour made under S2 (1) (b) of the TEW Act, approving the
termination of their services.
It was contended by the petitioners that TEW Act can be resorted to generally
in a situation where the business of the employer is closed down and not in a
situation where the employees become excess staff as a result of a
prospective merger and the business still continues.CA
Kumara Fernando and others v
Commissioner of Labour and others 125
It was also contended that TEW Act should be read together with the express
condition imposed by the Central Bank to the effect that employees should be
retrenched purely on a voluntary basis and in the circumstances, the orders
made by the Commissioner of Labour – are illegal, ultra vires – and they
should be reinstated.
Held:
(1) S2(2)b read with S2(1)b of the TEW Act constitutes the
Commissioner of Labour as the sole authority to declare whether
to grant or refuse permission to terminate upon an application
made by the employer.
(2) S2 (2)b – provides by express and unequivocal statutory language
that approval to terminate may be granted or refused by the
Commissioner – in his absolute discretion.
(3) S2(2)(e) when dealing with the power of the Commissioner to
grant relief when he has decided to grant approval to terminate
also renders his decision on this relief well protected, as it also
expressly refers to absolute discretion.
(4) In S2(2)(f) the intention of the Act is manifestly clear which is to
effect finality of litigation/ disputes by providing that such an order
is final and conclusive.
(5) S 20 establishes primacy of this statute over any other written law.
Per Imam, J.
The Court must strive to apply an objective standard which leaves to the
deciding authority the full range of choices which the legislature is presumed
to have intended, decisions which are extravagant or capricious cannot be
legitimate, but if the decision is within the confine of reasonableness, it is no
part of the Court’s function to look further into its merits”.
(6) In accordance with the prevailing laws – TEW Act which is sui
generis and prevails over all other laws with the Commissioner’s
jurisdiction not being fettered by any other state agency – Central
Bank.
(7) The petitioners have failed to point out any part of the order which
exhibits bias. Surmise or conjecture is not enough. There must be
circumstances from which a reasonable man would think it likely or
probable that the Justice or Chairman as the case may be would or
did favour one side unfairly at the expense of the other. The Court
will not inquire whether he did in fact favour one side, certainly,
suffice it that reasonable people might think he did.
Held further
(8) An employer has the right to bona fide retrench his employees, on
the ground that such employees are redundant to his business.
Once the necessity for retrenchment is established the employer is126 Sri Lanka Law Reports [2007] 1 SriLR
free to decide on the number of employees who would become
surplus to his requirement. Retrenchment is a right of the
management and is a necessary incident of the industry, so long as
it is exercised bona fide, the employer’s decision should be
accepted.
‘In Sri Lanka there is no requirement for last in first out (LIFO). The employer
has a discretion to decide the method of selection for retrenchment.’
Per Imam, J.
“In this case some positions of the employees retrenched are no longer in
existence and the status quo cannot be resumed, there will be utter disaster
and mayhem, if the workmen claim a return to work”.
APPLICATION for Writs in the nature of Certiorari.
Cases referred to:
(1) Barsi Light Railway Co. v Joglekar – 1957 1 (LU)243
(2) Eksath Kamkaru Samithiya v Commissioner of Labour – 2001 2 SLR p
137.
(3) Nestles Limited v The Consumer Affairs Authority 2005 – 2 SLR 188
(4) Dr. S. U. S. Perera v The University of Colombo.
(5) Metropolitan Properties (FGC) Ltd. v. Lannon (1969) 1QB 577.
(6) Vishwamitra Press v Workers of Vishvamitra Press (1952) LAC 20.
Shibly Azeez PC with Shirley Fernando PC, Farman Cassim and Nishantha
Sirimanne for petitioner
Ms. M.N.B. Fernando DSG for 1st and 2nd respondents
Sanjeewa Jayawardane with Ms. Priyanthi Gunaratne for 3rd and 4th
respondents.
May 9, 2007
IMAM, J.
The petitioner in CA. writ applications No. 1070/03,1080/03 and 01
2282/02 respectively, being at all times material, employees
belonging, to the “Clerical” “Management” and “Support” staff
categories of the 3rd and 4th respondents namely Standard
Chartered Bank (henceforth known and referred to as “SCB”) and
Standard Chartered Grindlays Bank Limited, (henceforth know and
referred to as “SCGB”) respectively, seek mandates in the nature ofCA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 127
writs of certiorari seeking to quash the 3 orders made by the 1st
respondent the Commissioner of Labour approving the termination of
the petitioner’s services in respect of applications bearing Nos. 10
TE/96/2001, TE/97/2001 and TE/82/2001 as prayed for in their
respective petitions, in accordance with section 2(1 )(b) of the
Termination of Employment of Workmen Special Provisions Act No.
45 of 1971 (hence forth referred to as ‘TEW” Act.)
The facts in the aforesaid cases are as follows. On or about
August 2000 the 3rd respondent bank “SCB” acquired the Sri Lanka
Banking operations of a Foreign Commercial Bank also operating in
Sri Lanka called and know as ANZ Grindlays Bank Limited.
Subsequent to the said acquisition ANZ Grindlays Bank Limited
changed it’s name to Standard Chartered Grindlays Bank Limited 20
(“SCGB”), namely the 4th respondent in this case.
The petitioners in all of the aforesaid Writ Applications have
sought to quash by way of Writs of Certiorari, the orders made by the
Commissioner of Labour made in respect of the inquiries conducted
by the 2nd respondent (Inquiring Officer exercising delegated
authority) into the said applications for the termination of the
petitioners services.
CA.(Writ) Application No. 1070/03 was instituted by 19 Clerical
Staff category of employees in respect of the order made by the
Commissioner of labour in Application for termination bearing No. 30
TE/96/2001. CA (Writ) Application No. 1080/03 was instituted by 12
Managerial Staff category of employees in respect of the order made
by the Commissioner of Labour in Application for termination bearing
No. TE/97/2001, whereas CA. (Writ) Application No. 2228/02 was
instituted by 54 Support Staff category of employees in respect of the
order made by the Commissioner of Labour in Application for
termination bearing No. TE/82/2001.
Consequent to the aforesaid writ applications being instituted 01
petitioner out of a total of 19 in CA. 1070/03,1 petitioner out of a total
of 19 in CA. 1070/03, 1 petitioner out of a total of 12 in CA. 1080/03 40
and 21 petitioners out of a total of 54 in CA. 2282/02 withdrew the
respective compensation amounts deposited to their credit with the
Commissioner of Labour, resulting in 23 petitioners out of the total
number of 85 petitioners in the aforesaid 3 cases having accepted128 Sri Lanka Law Reports [2007] 1 SriLR
the respective compensation awarded to them. The petitioners
contend that the remaining 62 petitioners have not as stated in the
written submissions tendered on behalf of the petitioners accepted
the substantial compensation awarded to them by the Commissioner
of Labour, and the petitioners contend that despite the severe
financial constraints faced by them since being terminated from 50
service over 3 years ago for no fault of theirs seek reinstatement in
service.
Learned President’s Counsel who appears for the petitioners
submitted that the petitioners are dissatisfied and complain against
the orders made by the Commissioner of Labour inter alia, for the
following reasons. The petitioners allege that,
i) The Orders made by the Commissioner of Labour, are
illegal, ultra w’resand perverse.
ii) The Inquiring Officer (2nd respondent) and the
Commissioner of Labour have aced in total violation of the 60
principles of Natural Justice, and have failed to offer the
petitioners a full and fair hearing at the respective Inquiries.
iii) The Commissioner of Labour could not have proceeded to
hear and determine the 3 applications made by the banks
to terminate the petitioner’s services in the aforementioned
3 cases as the conditions for retrenchment imposed by the
Central Bank were not adhered to by the Commissioner.
iv) The Respondents have shown an utter lack of bona fides
towards the petitioners.
v) The Inquiring officer and the Commissioner of Labour were 70
wrongfully and/or unlawfully influenced by the banks and
thus the orders of the Commissioner of Labour
demonstrate a clear bias in favour of the banks which has
resulted an injustice being caused to the rights and
interests of the petitioners.
vi) The actions of the banks and the Commissioner of Labour
have cumulatively violated the legitimate expectations of
the petitioners inter alia, to be retrenched entirely on a
voluntary basis and not against their wishes.Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 129
vii) The petitioners were not afforded a full and fair opportunity
to present their respective cases before the Commissioner
of Labour and/or the 2nd respondents.
viii) No accepted rational or logical methods have been
adopted by the banks when they purported to identify the
petitioners for retrenchment, and hence the said acts of the
banks are arbitrary and discriminatory.
ix) The petitioners who were identified were subsequently
singled out by being transferred to a common pool, were
not allocated any work for over 1 year, but were only paid
their monthly salaries and were informed that they could
report to work if they so desired. Thus the banks were
wrongfully indulging in acts to isolate, degrade and destroy
the morale of the petitioners, thereby compelling them to
accept the compensation and retire prematurely.
x) The banks outsourced the service of at least 136 personnel
when the inquiries into the termination of the petitioner’s
services were pending before the Commissioner of Labour,
in order to carry out the functions previously performed by
a fewer number of petitioners. Thus the Banks’ contention
that the petitioners were excess staff was a stratagem
employed by the bank.
xi) The Commissioner of Labour and the Inquiring Officer have
failed to properly evaluate the evidence placed before them
and hence failed to draw the necessary inferences at the
said Inquiries.
xii) The compensation awarded by the Commissioner of
Labour was in any event inadequate to compensate the
petitioners for their loss of employment.
The petitioner’s aver that the banks Applications made to the
Commissioner of Labour under section 2(1 )(b) of the ‘TEW” Act for
termination of the petitioner’s services have clearly been made on
the basis that the petitioners were surplus or excess staff, allegedly
as a result of the move on the part of the 2 Banks to merge. It was
contended by the petitioners that a situation where employees
become excess and the business of the employer still continues is130 Sri Lanka Law Reports [2007] 1 SriLR
clearly distinguishable from a situation where the entire business of
the employer is closed down, which is referred to as “closure”. The
petitioners referred to section 48 of the Industrial Disputes Act (IDA)
where “retrenchment” is defined as “retrenchment” means the
termination by an employer of the services of a workman or workmen 120
on the ground that such workman or workmen is or are in excess of
the number of workmen required by such employer to carry on his
industry”.
The petitioners submit that the “TEW” Act refers specific
situations in which the scheduled employment of workmen can be
terminated, such as the term “closure” found in section 6A of the
TEW Act refers to such a given specific situation in which the ‘TEW”
Act can be utilized. Thus, the ‘TEW Act can be resorted to generally,
in a situation where the business of the employer is closed down
(closure), and not in a situation where the employees become 130
excess staff merely as a result of a prospective merger and the
business still continues.
The petitioners cited “The Legal Framework of Industrial
relations in Ceylon” by S.R. De Silva where the term closure’ has
been defined as follows.’ It has been held by the Supreme Court of
India in Barsi Light Railway Co v Joglekatf) that retrenchment does
not cover a case where the business itself is closed down, since it is
the essence of retrenchment that the employer should continue to
carry on his industry after the termination of the services of the
workmen. In other words, the closure of a business is not a discharge 140
of surplus labour. ‘The petitioners thus aver that term” closure
contemplates a situation where the business of the employer ceases
to exist completely: therefore the question of excess/ surplus staff
does not arise and the employees can be longer make any claim for
re-instatement in service.
The petitioners further allege that by resorting to the provisions
of section 2(1 )(b) of the ‘TEW” Act in order to terminate the services
of the petitioners for no fault of theirs on non-disciplinary grounds is
clearly contrary to the intention of the legislature, and also constitutes
a clear abuse of process, in as much as, inter alia the petitioners 150
have been treated as excess staff not because there was a loss of
business or lack of it, (on the Contrary the accounts of the BanksKumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 1 3 1
show that their profits were soaring), but solely due to a merger of
SCB and SCGB which is not a ground for termination as
contemplated by the legislature and in any event the merger cannot
be considered a good ground for termination under and in terms of
the ‘TEW” Act. The petitioner in this context referred to ‘The contract
of employment” by S. R. De Silva at page 230, with regard to the
rationale for the promulgation of the ‘TEW Act” of 1971. At page 230
it is stated as follows, ” The substantial reason for the Act was the 160
need felt at that time by the State to exercise a greater degree of
control, over retrenchment and lay off of employees in the private
sector on grounds of loss of business, lack of raw materials and so
on, and in those instances where such grounds are found to exist, to
keep the number of persons so retrenched to the minimum. The Act
was not intended to preclude termination on good grounds, but was
intended to prevent resort to retrenchment and lay off in
circumstances not warranting it and to ensure that employees would
receive relief expeditiously, if laid off or terminated. The need felt by
the State to exercise a greater degree of control over non disciplinary 170
terminations became urgent at that time in the context of increasing
unemployment in the country…” (WS1) The petitioners aver that
under these circumstances the banks could not have made
Applications to have the services of the petitioners terminated under
the ‘TEW’ Act, and the Commissioner of Labour could not have
entertained the said Applications, nor thereafter, heard and
determined the same. It is submitted by the petitioners that when
section 2(1 )(a) of the ‘TEW’ Act read together with the express
condition imposed by the Central Bank to the effect that employees
should be retrenched purely on a voluntary basis, and with section 5 180
of the ‘TEW” Act, the applications made by the banks and the orders
made by the Commissioner of Labour are illegal, ultra vires, unlawful,
perverse, null and void, are of no force in law, and liable to be set
aside by this Court.
Learned President’s Counsel appearing on behalf of the
petitioners cited Eksath Kamkaru Samithiya v Commissioner of
Labour^2) where His Lordship U.De Z. Gunawardene, J dealt in detail
inter alia, with the provisions of sections 5 and 6 of the ‘TEW” Act,
and the discretion vested with the Commissioner of Labour under
section 6 in instances where the termination is found to be illegal. His 190
Lordship held that “Manifest purpose of section 5 is to wholly protect132 Sri Lanka Law Reports [2007] 1 SriL.R
the workman against the termination of his service contrary to the
provisions of the relevant Act, and to keep the contract of
employment intact notwithstanding such illegal termination.” (WS-2)
Thus the petitioners contend that if the order of the Commissioner of
Labour to grant the Banks approval for the termination of the
petitioners service is found to be illegal, an overriding duty would be
imposed on him to order the employer to continue the petitioners in
service, as if no termination had taken place at all, and therefore the
Commissioner would have no discretion to do/act otherwise under 200
section 6 of the “TEW” Act. The petitioners submit that the 1st
respondent could not have approved the termination of the
petitioner’s services, as the same was illegal and therefore, could not
have proceeded to award the petitioners compensation in lieu of
reinstatement, but a mandatory duty was cast on him to order the
banks to continue to employ the petitioners.
Counsel for the 3rd and 4th respondents raised a preliminary
objection on 26. 07. 2004 to the effect that the reliefs prayed for by
the petitioners were misconceived in law and that the Petitioners
applications were futile. This Preliminary Objection together with 210
several other Preliminary Objections raised on behalf of the 3rd and
4th respondents were determined by this Court prior to the hearing
into the merits of these writ applications, and the aforesaid objections
were overruled by this Court on 09. 12. 2004 including the objection
relating to the reliefs prayed for being misconceived in law. Counsel
for the 3rd and 4th respondents submitted that although the
petitioners sought interim relief to prevent the termination of their
services by the employer before this court in December 2002 in CA.
1325/2002, this interim relief which was heard by Their Lordships
N.E.Udalagama, J and Edirisuriya, J after a complete interpartes 220
hearing was refused. This order it is submitted was not challenged in
the Supreme Court. The Award of The Commissioner of Labour in
2282/02 is the highest ever total award in the history of Labour Law
in Sri Lanka being Rs. 82,158,582/- in regard to 55 petitioners, which
amounts to an average of Rs.1,493,792/- per person, submits
counsel for the 3rd and 4th respondents. Counsel went on to
elaborate the total awards made by the Commissioner in CA.
1070/03 and CA. 1080/03 respectively too. Counsel stated that the
Awards in each case was as follows.CA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 133
Case Award No of
Petitioners
Average per
person
230
a) CA. 2282/02
b) CA. 1070/03
c) CA. 1080/03
Rs. 82,158,582/-
Rs. 29,437,931/-
Rs. 35,658,198/-
55
11
19
Rs. 1,493,792/-
Rs. 1,549,365/-
Rs. 3,241,654/-
Total Rs. 147,254,711/-
Counsel for the 3rd and 4th respondents contend that the
aforesaid Applications of the petitioner’s cannot succeed, as there
exist several impediments in law, both preliminary and substantive.
Counsel avers that in the prayer for relief in CA. 2282/02 the
petitioners have prayed for a writ of prohibition against the 3rd and 240
4th respondents, preventing them as employers, from terminating the
services of the petitioners. The petitioners themselves, by praying for
such a writ of prohibition have accepted the vital importance of
preventing the employer from terminating the services of the
petitioners with the intention of pursuing the writ application. The
petitioners, according to Defence counsel have also conceded that
the act of termination is exclusively vested in the employer. Learned
counsel avers that letters of termination were formally issued, the
terminations duly effected and compensation deposited. The stay
order sought for by the petitioners was refused by Their Lordships 250
N.E.Udalagama, J and Edirisuriya, J in CA. 1325/02 in December
2002, and hence according to learned Counsel for the 3rd and 4th
respondents as no appeal was filed the terminations stand which is
the status quo.
It is pointed out by learned counsel for the 3rd and 4th
respondents that the Writ of prohibition is no longer a live issue at all
and cannot be granted as prohibition would lie only to prevent the
occurrence of an event which has not yet taken effect, whereas in
this instance termination of employment of the services of the
petitioners in CA. 2282/02 have occurred more than 4 years before 260
the application.
Counsel for the 3rd and 4th respondents submit that the only
remedy that can be granted theoretically is the CertiorariXo quash the
document marked X2 being the approval of the Commissioner of
Labour for termination. Counsel submits that however if the Writ of134 Sri Lanka Law Reports [2007] 1 SriLR
Certiorari is granted, then the order of the Commissioner of Labour
would be annulled. However learned Counsel points out that serious
complications would result in respect of issuing such a writ, which
would be as follows, inter alia.
1) More than 4 years have elapsed since the termination of 270
employment of the petitioners.
2) The termination has been acted upon by all parties including
the petitioners who have accepted all terminal benefits
thereby accepting the termination, with some of the
petitioners having accepted the compensation package.
3) The Bank and its structure has subsequent to the merger
undergone a significant change with the status quo which
prevailed being no longer in existence.
4) Judicial authorities expound the principle that re-instatement
means the resumption of the status quo ante, which means 280
re-installing the workman to the same post, same conditions
and terms that prevailed prior to termination, and if this is not
possible, then the only alternative is compensation. The
resumption of the status quo ante is not possible even if all
parties including the bank are amenable to it due to the
restructuring which the bank has undergone, its downsizing,
its streamlining, advanced computerization of functions and
the introduction of new technologies.
Learned counsel for the 3rd and 4th respondents referred to
relevant provisions of the “TEW” (Special Provisions) Act, namely 290
section 2(1) which reads as follows.
“No employer shall terminate the scheduled employment of any
workman without
a) The prior consent in writing of the workman; or
b) The prior written approval of the Commissioner.”
Section 2 (2) states as follows
“The following provisions shall apply in the case of the exercise
of the powers conferred on the Commissioner to grant or refuse his
approval to an employer to terminate the scheduled employment of
any workman.” 3 0 0CA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 135
Section 2(2) sub paragraph (b) states as follows:
‘The Commissioner may, in his absolute discretion decide to
grant or refuse such approval.”
Section 2(2) sub paragraph (e) states as follows:
‘The Commissioner may, in his absolute discretion, decide the
terms and conditions subject to which his approval should be
granted, including any particular terms and conditions relating to the
payment by such employer to the workman of a gratuity or
compensation for the termination of such employment.”
Section 2(2) subparagraph (f) states as follows. 310
“any decision made by the Commissioner under the preceding
provisions of this subsection shall be final and conclusive, and shall
not be called in question whether by way writ or otherwise:
i) In any Court or
ii) In any Court, tribunal or other institution established under the
Industrial Disputes Act.”
Learned Counsel submits that these statutory provisions which
do not find any parallel in any other law, have been advisedly devised
by the legislature to provide a greater degree of immunity in respect
of orders made by the Commissioner of Labour under this statute to 320
ensure expeditious conclusiveness to proceedings under the Act.
Counsel submits that in a series of judgments delivered recently by
the Court of Appeal including Nestles Limitedv The Consumer Affairs
Authority O) and Dr. S.U.S. Pererav The University of Colombo^ it
was held by Their Lordships Justices Sripavan and Basnayake that
Courts cannot, through a perceived or subjective process of so called
Judicial Activism, refuse to give effect to the statutory word when it is
plain, clear and unambiguous. Counsel submits that section 2(2)(b)
read with 2(1 )(b) of ‘TEW (Special Provisions) Act constitutes the
Commissioner of Labour as the sole authority to decide whether to 330
grant or to refuse permission to terminate, upon an application to
terminate made by an employer. Counsel avers that the
Commissioner’s order consists of only the permission to terminate
excess employees by way of the “Written approval of the
Commissioner”. However counsel submits that the termination136 Sri Lanka Law Reports [2007] 1 SriL.R
proper has been effected by the 3rd and 4th respondents by deciding
to terminate the contract of employment and consequently issuing
formal letters of termination to each of the petitioners. It is averred by
counsel that even if the Commissioner’s order is quashed by way of
a Writ of Certiorari, the consequent act of termination by the 340
employer, namely the factum of termination would remain intact and
thus cannot be changed. Counsel contends that the petitioners
cannot contend that if an order of approval is quashed, then all
consequential acts thereafter are also invalid as the termination Act
is sui generis and extraordinary in its specialty as it provides
expressly for terminations to be rendered illegal and for punitive
sanctions to be imposed for illegal terminations. Counsel submits
that in CA. 2282/02 the petitioners in the Prayer to the petition have
not specifically prayed to be re-instated, and as a Court cannot grant
more than what has been prayed for, the Writ Application CA. 350
2282/02 should be dismissed. Counsel states that in the aforesaid
case all the petitioners have taken their Gratuity, Leave pay
entitlement, EPF and ETF, and as all the petitioners have obtained
their terminal benefits, there exists an unequivocal acceptance that
their services are terminated.
Counsel submits that several of the petitioners have withdrawn
the Compensation awarded by the Commissioner and deposited with
the Commissioner of Labour by the 3rd and 4th respondents which
clearly indicate their acceptance of their termination as well as the
Commissioner’s order of compensation upon termination. 360
The numbers of petitioners who have taken their Compensation
payments in each of the cases are as follows.
CA. 1070/03 – 6 Petitioners.
CA. 1080/03 – 3 Petitioners.
CA. 2282/02 – 21 Petitioners.
Counsel avers that this is in addition to all having taken their
other terminal dues as well, which enhances the fact fact the even
the workmen have accepted their termination of employment. It is
pointed out by counsel that in the event of the petitioners being
reinstated in service a tremendous practical difficulty would arise, as 370
the sums which have already been given to the petitioners would
entail an enormous difficulty in recovering the same. For theKumara Fernando and others v
CA Commissioner of Labour and others (Imam, J.) 137
aforesaid reasons counsel for the 3rd and 4th respondents submits
that the petitioners cannot be reinstated to their original posts, and
urges that these 3 writ applications be dismissed.
Order of the Commissioner
I have examined the 3 writ applications of the petitioners, the
objections of the respondents, the written submissions and other
material tendered by both sides, and the law applicable to these
applications. In December 2002 the 55 petitioners sought interim 380
relief in CA. 1352/02 to prevent the termination of their services by
the employer, which application was refused by Their Lordships
N.E.Udalagama, J and Edirisuriya, J subsequent to a complete inter
parties hearing. It is pertinent to note that this order was not
challenged in the Supreme Court. In CA. 2282/02 the petitioners in
the prayer to the petition have not specifically prayed to be reinstated in service.
Section 2(2)(b) read with section 2(1 )(b) of the ‘TEW (Special
Provisions) Act constitutes the Commissioner of Labour as the sole
authority to decide whether to grant or refuse permission to terminate, 390
upon an application made by the employer. Significantly section 2(2)(b)
provides by express and unequivocal statutory language that approval
to terminate may be granted or refused by the Commissioner in his
absolute discretion. Section 2(2)(e) of the ‘TEW Special Provisions
Act when dealing with the power of the Commissioner to grant relief
when he has decided to grant approval to terminate also renders his
decision on this relief well protected, as it also expressly refers to
“absolute discretion”. The words “absolute discretion” have rarely been
used by the Legislature in an Act of Parliament. These 2 provisions
pertaining to “absolute discretion” must be considered in view of the 400
fact that the Act is a Special Act promulgated to make special provision
in respect of the termination of workmen in non-disciplinary situations.
In section 2(2)(f) of the aforesaid Act the intention of the legislature is
manifestly clear which is to effect finality of litigation / disputes by
providing that such an order is “final and conclusive” and shall not be
called in question whether by way of Writ or otherwise. Section 20 of
the aforesaid Act establishes primacy of this Statute over any other
written law, for in the event of any inconsistency between the
provisions of this Act and the provisions of any other written law, the
provisions of this Act shall prevail. 4 1 0138 Sri Lanka Law Reports [2007] 1 SriL.R
When there is a possibility of multiple conclusions being arrived
at, the decision must be one made within vires i.e. within the power
to make decisions and not exceeding it. In this context it is relevant
to cite Professor H.W.R. Wade with regard to the proper application
of the Wednesbury principle of reasonableness, which is as follows,
“the doctrine that powers must be exercised reasonably has to be
reconciled with the no less important doctrine that the Court must not
usurp the discretion of the Public Authority which Parliament
appointed to take the decision. Within the bounds of legal
reasonableness is the area in which the deciding authority has 420
genuinely free discretion. If it passes those bounds it acts ultra vires.
The Court must therefore resist the temptation to draw the bounds
too tightly merely according to its own opinion. When a Divisional
Court yielded to that temptation by invalidating a Secretary of State’s
decisions to postpone publication of a report by Company Inspectors,
the House of Lords held that the judgments illustrate the danger of
Judges wrongly thought unconscientiously substituting their own
views for the view of the decision maker who alone is charged and
authorized by Parliament to exercise a discretion. The Court must
strive to apply an objective standard which leaves to the deciding 430
authority the full range of choices which the legislature is presumed
to have intended. Decisions which are extravagant or capricious
cannot be legitimate, but if the decision is within the confines of
reasonableness, it is no part of the Court’s function to look further into
its merits.” There is no ultra vires as far as the Commissioner is
concerned, as the Commissioner has been invested with the
exclusive power to decide the question of whether to grant or refuse
approval for as application made by an employer to terminate the
services of its workman under section 2(1) of the ‘TEW” (Special
Provisions) Act. Thus, in my view the aforesaid orders of the 440
Commissioner of Labour are legal, within vires and non perverse.
Natural Justice
With regard to the complaint of the petitioners that there was a
violation of the principles of Natural Justice by the Inquiring JUfficer
namely the 2nd respondent and the Commissioner of Labour by
failing to afford the petitioners a full and fair hearing at the respective
inquiries, the inquiry before the Commissioner which was under
section 02 of the ‘TEW” Act was very long where SudheeraCA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 139
Wijetileke and Bharata Ganawickrema who were office bearers of the
Union gave evidence. None of the affected workmen gave evidence 450
nor claimed reinstatement. Mr. Anura Silva the witness of the Bank
was cross-examined by learned President’s Counsel Mr. Shirely
Fernando who appeared on behalf of the Union on 9 days, and the
inquiry exceeded one year, with 25 dates of inquiry. However the
principles of immunity expressly resorted to by the legislature in its
wisdom as clearly set out in sections 2 (2)(b), 2(2)(e) and 2(2)(f) of
the ‘TEW” (Special Provisions Act) read in conjunction with the
textual authority of professor Wade and the dicta of Lord Denning,
show that the order of the Commissioner of Labour cannot be
interfered with, unless he has made an order which is so perverse 460
that it shocks conscience of Court. The order of the Commissioner as
well as the reasons thereof (X2 and 1R1) are comprehensive
containing the detailed reasoning of the Commissioner, wherein the
main issues are dealt with in an objective manner. The aforesaid
order is not tainted with mala fides, and as the order does not shock
the conscience of Court, it is my view that there is no violation of the
principles of Natural justice. Hence I see no reason to interfere with
the aforesaid order of the Commissioner.
Conditions Imposed By The Central Bank
Learned President’s counsel for the petitioners averred that one 470
of the principal complaints of the petitioners was that the clear
conditions for retrenchment imposed by the Central Bank were not
followed, and hence the Commissioner of Labour could not have
proceeded to hear and determine these 3 Writ Applications. A
condition imposed by the Central Bank as stated in paragraph 2 (iv)
of its letter dated 23.01.2001 (X7) refers to “purely on a voluntary
basis” in respect of the retrenchment of the Petitioners. The Central
Bank reiterated this condition consequent to a discussion which the
Central Bank had with the then CEO of “SCGB” Mr. Frank Gamble,
in the letter addressed (X7) to Mr. Frank Gamble by the Director of 480
Bank Supervision of the Central Bank dated 23.01.2001 which states
that “With regard to item (iv) above, as discussed at the meeting you
had with us on 17.01.2001, we wish to reiterate that the releasing of
employees should be carried out purely on a voluntary basis and in
a fair and equitable manner for employees of both banks and in
accordance with the prevailing laws. No employee should be140 Sri Lanka Law Reports [2007] 1 SriLR
removed from one bank to the other until the merger of the 2 banks
is finalized. In case of retrenchment of staff, you mentioned that each
bank would offer compensation packages to its employees and that
comprehensive information on those packages would be furnished to 490
the CBSL”. In my view “and in accordance with prevailing laws”
refers to the ‘TEW (Special Provisions) Act, which is ‘sui generis’
and prevails over all other laws, with the Commissioners jurisdiction
not being fettered by any other state agency. In this context section
12 of the Banking Act was clearly satisfied, the Ministers approval
also obtained, and hence the bank has complied with the Law. In the
event of a workman having been removed from one Bank to the
other before the merger was complete the workman could have
given evidence to this effect at the inquiry before the Commissioner,
which no workman did. For the aforesaid reasons, I am of the view 500
that the conditions of the Central Bank have been complied with by
the ‘SCGB’ and the approval of the Central Bank is not a matter in
issue in this case.
Lack of Bona Fides towards the Petitioners
From an examinations of the inquiry before the Commissioner it
is apparent that the petitioners themselves delayed the inquiry.
During the pendency of the inquiry, the Bank paid the petitioners their
salaries and other benefits in full. For instance in CA. 2282/2002 the
inquiring Officer had observed on 31.05.2002 that it was the 12th day
of inquiry and that the witness of the Bank was under cross 510
examination for the last 8 days of inquiry (as per proceedings of
31.05.2005 at page 156 of the brief) stated that the inquiry should be
concluded on 31.07.2002, and fixed several more dates of inquiry.
However notwithstanding this direction learned President’s Counsel
for the petitioners continued to cross examine the Bank’s witness for
a further 3 days namely 06.06.2002,15.06.2002 and 12.07.2002.
The petitioner made an application bearing No. CA. 1325/02 to
this court, where their Lordships N.E.Udalagama, J with Edirisuriya,
J agreeing held that the petitioners should lead their evidence without
delay, state their case when the inquiry commences, and directed the 520
Commissioner to conclude the inquiry as expeditiously as possible.
The Commissioner fixed the inquiry for a further 9 days of inquiry
giving the petitioners sufficient time to present their case. Even in
CA. 1070/03 the relevant application was lodged with theCA
Kumara Fernando and others v
Commissioner of Labour and others (Imam. J.) 141
Commissioner-General of Labour on 19.12.2001 consequent to which
13 dates were fixed for inquiry upto 24.09.2002. On 24.09.2002 the
inquiring Officer noted that the Bank’s witness had been under cross
examination for 13 dates spanning a period of 9 months (page 119 of
the Brief in Case No. CA 1070/03). Under these circumstances the
inquiring Officer consented to grant the petitioners a further four 530
months in which to present and conclude their case. Thus in this case
to the proceedings were delayed by the petitioners during which
period the petitioners were paid their monthly salaries. The sums paid
as salaries during the year long inquiry were as follows:
CA. 2282/02 – Rs. 13.2 Million
CA. 1070/03 – Rs. 5.22 Million
CA. 1080/03 – Rs. 9.1 Million
Amounting to a total of approximately 27.25 million.
For the aforesaid reasons in my view there is no material or
evidence to suggest that the respondents demonstrated a total lack 540
of bona fides towards the petitioners, and hence I reject the
proposition tendered on behalf of the petitioners and hold that there
was no lack of bona ficfes towards the petitioners by the respondents.
Allegations of Bias-Meeting with the Commissioner
This allegation of the petitioners was comprehensively dealt
with by DSG Ms. Murdu Fernando, who submitted that there was no
proof in any manner that the Commissioner was influenced in any
way. The petitioner’s contention was that the inquiry into the Bank’s
Applications for termination was expedited by the inquiring Officer
(the 2nd respondent) after the then CEO of SCGB ( Mr. Wasim Saifi) 550
and the witness for the Bank’s Mr. Anura Silva who was at such time
under cross-examination had met the Commissioner of Labour on
30.05.2002 without any of the petitioners representatives being
present and without even their own legal counsel being present,
during the course of the inquiry in May 2002, and had admittedly
discussed matters relating to expending the inquiry with the
Commissioner (pages 43 and 44 of the proceedings in the CA.
1070/03 Brief. The petitioners are unaware of what other matters
were surreptiously discussed between the said parties. It was also
admitted during cross-examination by the bank’s said witness 560142 Sri Lanka Law Reports [2007] 1 Sri L.R
Mr. Anura Silva that the said meeting was held just one day before
the next day fixed for inquiry into Application No. TE/82/2001 {CA.
2282/02}, (Page 44 of the proceedings in the CA. 1070/03 Brief). The
Petitioners submit that this surreptitious meeting directly resulted in
the inquiring Officer’s sudden and arbitrary decision taken on the
very next day namely on 31.05.2002 to drastically curtail the duration
of the inquiry and restrict the employees’ Counsel’s opportunity to
present the entire case on behalf of the employees (pages 156 to
164 of the proceedings in the CA., 2282/02 Brief).
His Lordship Lord Denning in Metropolitan Properties (FGC) Ltd 570
v Lannort® as reproduced at pages 456 and 457 of Wade on
Administrative Law (8th edition) held that “Nevertheless there must
appear to be a real likelihood of bias. Surmise or conjecture is not
enough. There must be circumstances from which a reasonable man
would think it likely or probable that the justice, or chairman, as the
case may be, would or did favour one side unfairly at the expense of
the other. The Court will not inquire whether he did, in fact, favour one
side unfairly. Suffice it that reasonable people might think he did. The
reason is plain enough. Justice must be rooted in confidence and
confidence is destroyed when right minded people go away thinking 580
the Judge was biased. “Wade further states that the aforesaid
decision reasserted” justice must be done’ as the operative principle.
The petitioners allege that a clear and demonstrable likelihood of
bias can be inferred from the surreptitious conduct of the respondent
Banks’ Senior Representatives and the Commissioner of Labour.
The petitioners accept that up to date they are unaware of the full
and/or actual extent of discussion the Banks’ CEO and Mr. Anura
Silva the witness had with the Commissioner of Labour on
30.05.2002. However, from the inquiring Officers reaction
immediately thereafter which became evident, inter alia from the 590
inquiry being expedited, the petitioners allege that the obvious
inference of bias needs to be drawn.
The petitioners have failed to point out any part of the order of
the Commissioner which exhibits bias on the petitioner. The
petitioners themselves accept that they are unaware of the actual
extent of the discussion the Banks CEO and Mr. Anura Silva the
witness of the Bank had with the Commissioner of Labour on
30.05.2002. Lord Denning in the aforesaid Judgment held thatCA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 143
“Nevertheless there must be a real likelihood of bias. Surmise or
conjecture is not enough ” Due to the aforesaid reasons and the 600
inability of the petitioners to point out in which manner there was bias
in the order of the Commissioner, I am compelled to reject the
allegation of bias on the part of the petitioners and thus hold that the
Commissioner was not biased in the delivery of his order.
Total lack of Bona fides on the part of the respondent Bank Flagrant
Violation of the terms and conditions of the Collective Agreements
This complaint of the petitioner is applicable only to the cases of
the “Support Staff’ and “clerical staff’ employees since the
“Managerial Staff employees are not parties to any Collective
Agreements with the aforesaid 2 Banks. The respondent Banks 610
clearly state in their applications for termination that it is, inter alia, the
introduction of new Technology that has prompted the bank to treat
the petitioners as surplus employees.
SCGB has expressly agreed at clauses 7 and 8 of the schedule
2 of the Collective Agreement dated 26.07.2001 (p 385 of the CA.
1070/03 Brief) read with clause 24 of the main agreement, that it will
not retrench staff who become redundant as a result of the
introduction of new technology. SCB too has agreed to be bound on
very similar terms in the Collective Agreement dated 15.5.2000
(Clause 29 of the Agreement at page 413 read together with clauses 620
7 and 8 of the 3rd Schedule to the said Agreement at pages 426 and
427 of the CA. 1070/03 Brief). Hence the petitioners entertained a
legitimate expectation that they would not be retrenched because
new technology was being introduced. Mr. Baratha Gunawickrama,
the witness who gave evidence on behalf of the employees in
respect of the inquiry into Application No. TE 82/2001 has stated at
paragraph 16 of the affidavit submitted by him as evidence in chief
(page 183 of CA. 1070/03 Brief), that inter alia, Frank Gamble, the
then CEO of SCGB (in March 2001), had categorically indicated to
the said employees that they would be re-trenched purely on a / -630
voluntary basis. The petitioners aver that the employees relied on the
aforesaid representation made by the then CEO, and accordingly did
not seek alternative employment or pursue other avenues of
employment, and have been severely prejudiced as a result of the
violation of the said undertaking. The petitioners submit that the
Banks are estopped in law from acting contrary to the said holding144 Sri Lanka Law Reports [2007] 1 SriLR
out and/or from denying the same. The “TEW” (Special Provisions
Act) deals with situations of “Non-disciplinary” termination. As stated
by S.R. De Silva in “Legal Framework of Industrial relations in
Ceylon” at pages 501 and 502 it was held that “An employer has the 640
right to bona fide retrench his employees, on the ground that such
employees are redundant to his business. Such redundancy may
arise from the fact that the employer wishes to reorganise his
business, either due to the losses sustained by him or even for the
purpose of enhancing his profits. Once the necessity for
retrenchment is established, the employer is normally free to decide
on the number of employees who would become surplus to his
requirements. These principles have been established in a number
of decided cases.
In the case of Vishwamitra Press v Workers of Vishwamitra 650
Presst6) where retrenchment was effected as a result of
reorganization of the Company’s business he states “It is the prima
facie right of the Management to determine it’s labour force and the
Management would be the best Judge to determine the number of
workmen who would become surplus on the ground of
rationalization, economy or other reasons on which retrenchment
can be sustained.” It was also stated that in Ceylon these principles
have been enunciated in a number of cases and accepted.
“Retrenchment is a right of the management and is a necessary
incident of an industry. So long as it is exercised bona fide, the 660
employers’ decision should be accepted.” As stated at pages 316
and 317 of “A commentary on the Industrial Disputes Act” by Nigel
Hatch, retrenchment has been justified on the grounds of losses
occasioned by strike and reorganization of a business due to losses.
Retrenchment is also justified where it is consequent on the closure
of a section of the business.”
In the present instance reorganization of the business was as a
result of the merger and integration of 2 banks which also resulted in
a streamlining and introduction of new technologies and processes.
The original application for termination (P1 in 228/02, X1 in 1070/03 670
and 1080/03 categorically states that: ” The integration of the
operations and staff of the two institutions has been coupled with a
streamlining of the operational aspect of bpth institutions and
introduction of new technology Obviously, the integration andCA
Kumara Fernando and others v
Commissioner of Labour and others (Imam. J.) 145
streamlining of operations have made an impact on manpower
levels. For instance all divisions which independently functioned in
the 2 Banks earlier have now integrated which has consequently
resulted in 2 divisions becoming a single division for the purposes of
operations. In addition, technological developments have also
contributed towards a reduced requirement in cadre levels. “As 680
stated by Mr. Ravi Jayasekara in his affidavit of 07.01.2002 at
paragraphs 10, 11 and 12 there of appearing at page 42 of the brief
in CA. 2282/02.
“10. Subsequent to the acquisition, SCB sought and received
approval from the Central Bank of Sri Lanka to integrate the hitherto
separate operations of the SCB and Grindlays Bank into a single
operation.
11. Accordingly, the 2 Banks have now combined its operations
and technology platforms into one. During the integration process
new technologies and more efficient processes were introduced. 690
12. Subsequent to the integration of operations, functions
carried out previously by 2 Departments are now handled by one
Department …” The mechanics of the diminution and downsizing
was referred to in the application for termination dated 09. 11. 2001
(P1) and the supporting affidavit of Mr. Ravi Jayasekera (page 42 of
the brief) where he specifically states with reference to numbers,
categories post that there was a downsizing due to the merger.
These were not effectively challenged. Hence this clearly reveals that
the scope of the application before the Commissioner for termination
was on the basis of the merger as well as excess due to streamlining. 7 0 0
In accordance with section 2(4) of the ‘TEW (Special Provisions)
Act, the employer has a right to retrench and the jurisdiction of the
Commissioner is in respect of “non disciplinary terminations” i.e. for
any reason whatsoever, otherwise than by reason of a punishment
imposed by way of disciplinary actions. For the foresaid reasons it is
my view that the Banks are not estopped from acting contrary to the
said holding out as alleged by the petitioners.
The Employees were denied a full and fair hearing
The petitioners complain that although this Court made an order
in CA. Writ Application No. 1325/02 that the inquiry before the 710
Commissioner of Labour should resume not later than 02.09.2002146 Sri Lanka Law Reports [2007] 1 SriL.R
and be concluded before 30.11.2002, the 2nd respondent however
commenced the inquiry on 17.09.2002 and concluded the same on
28.11.2002. Thus the petitioners allege that the 2nd respondent by
resuming the Inquiry 15 days after the specified date has unlawfully
and unjustly limited the opportunities for the petitioners to fully
present their case before the 2nd respondent. The petitioner also
contend that the employees were prevented from summoning
Mr. Wasim Saifi the then CEO of SCGB as a witness by the 2nd
respondent in view of the unreasonable order made by the 2nd 720
respondent, resulting in the rules of fairplay being flagrantly violated
by the 1st and/ or 2nd respondents.
Although the 2nd respondent commenced the Inquiry 15 days
after 02.09.2002, the 2nd respondent concluded the Inquiry before
the 30.11.2002, namely on 28.11.02, thus before the deadline
imposed by the Court of Appeal. It is unfair for the petitioners to
complain that they were unable to fully present their case before the
2nd respondent. The 2nd respondent had fixed the Inquiry for
numerous dates, and the learned President’s Counsel Mr. Shirley
Fernando who appeared for the petitioners cross-examined the 7 3 0
witness of the bank on 13 dates and Inquiry proper constituted
numerous dates during which occasions the 2nd respondent
endeavoured to complete the Inquiry as expeditiously as possible,
which he achieved by concluding the same on 28.11.2002.
It is significant to note that the very same Petitioners alleged
bias by the 2nd respondent on the basis that Mr. Wasin Saifi and the
witness for the Banks Mr. Anura Silva met the Commissioner of
Labour on 30.05.2002 without any of the petitioners’ representatives
being present and without their own counsel being present.
No established rational or logical methods have been adopted 740
by the banks when they purported to identify the petitioners for
Retrenchment.
With regard to the above complaint of the petitioners, in each of
the cases namely CA. 228/02, CA. 1070/03 and 1080/03 the
numbers which were excess in each category of support staff,
clerical staff and managerial Staff respectively, were clearly stated
and the reasons for them being excess, also revealed. In all the
cases the following issues were addressed in the evidence of the 3rdCA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 147
and 4th respondents.
a) Whether there was an excess of staff. 7 5 0
b) If so how many persons were excess and in which categories.
c) How many persons had left voluntarily
d) How many persons remained excess thereafter.
For example in CA. 2282/02 which was in respect of Support
Staff, paragraphs 10 to 22 of Mr. Ravi Jayasekara appearing at
pages 42 and 43 of the Brief are of significance.
He stated the following:
“The Support Staff cadre in ‘SCB’ consists of Peons, Drivers,
Technicians and Labourers.
The support staff cadre in the SCGB consist of peons, Drivers 760
and Technicians. At the time of acquisition of Grindlays Bank by
SCGB, SCB had a support staff of 23. SCB carried out its internal
administrative operations as an independent commercial Bank with
these 23 Support Staff. With the acquisition of Grindlays Bank, the
Support Staff Cadre increased from 23 to 68. The integration of the
2 banks operations, introduction of new technology and streamlining
of operations reduced the requirement for Staff in the “Support Staff’.
The reasons why some staff had to be retrenched was adverted to in
detail, in respect of each of the categories at paragraphs 27 to 33 of
the said Affidavit. Similar evidence appears in CA. 1070/03 in the 770
Affidavit of Mr. Anura Silva, and in CA. 1080/03 too in the affidavit of
Mr. Anura Silva. (page 6 of the brief of 1080/03).
Manner of Selection.
The manner in which such staff was selected was set out during
the course of evidence.
Q. In Your evidence today you stated that the identification of the
redundant staff was a complicated process?
Can you please explain ?
A. In respect of support staff we applied LIFO (“Last in first out”).
We could do that because the nature of these jobs was not 780
complex. But in the case of the other jobs what we followed
was a professional selection process. The four steps were to148 Sri Lanka Law Reports [2007] 1 SriLR
decide the future combined organization structure and then
drawing up of personal specifications for each and every job.
Then for each of these jobs we identified suitable candidates,
mostly current incumbents of those jobs. Then we conducted
an interview which was done with a panel with representatives
from SCB, SCBG, and an independent Human Resources
person. The objective was to find the best candidate for the job,
and the ones who were not selected were identified as excess,
(pages 157 and 158 of the brief in case No. 1080/03). Thus
although the petitioners stated that the manner in which
selection was effected had not been stated, evidence had in
fact been led to the contrary. For example the following
evidence demonstrated the method in which Downsizing was
revealed in evidence:
Q. Would you agree with me that in view of the merger operation
the management took certain decisions in relation to the
operational departments of the Bank?
A. Yes.
Q. There were some changes made?
A. Yes.
Q. One change was a decision made by the management to
discontinue the Internal Control Department?
A. Yes.
Q. And that was the department that you were functioning in at
that time?
A. Yes. (Pages 194 and 195 of 1080/03)
The need to chose one of 2 persons for a single position was
revealed at pages 206, 207 and 208 of the Brief of 1080/03. It was
revealed that SCGB had a Compliance officer whilst SCB had a
single person (the head of legal) to handle the legal and Compliance
functions.
Referring to the function of Compliance.
Q. Do you agree that it requires a person to have a good
knowledge of the laws?
A. Definitely. -CA
Kumara Fernando and others v
Commissioner of Labour and others (Imam, J.) 149
Q. Consequent to the Merger exercise the Head of Legal also
took over as Head of Compliance?
A. Yes.
Q. The Head of Legal . . . was functioning as Head of Legal at
SCB?
A. She was Head of legal and Compliance at SCB?
Q. And now she functions Head of Legal and Compliance for both
banks?
A. Yes.
The LIFO method of Selection
It was elicited during the course of the inquiry (as stated above)
that in respect of Support staff, the “last in first out” (LIFO) method
had been adopted in the selection of staff for retrenchment. In
respect of the other categories however, a Professional Selection
Process was adopted in selecting the redundant staff in view of the
fact that they were more senior and had more specialized functions.
This evidence was not effectively contradicted by the petitioners.
Although the Petitioners sought to contend that the LIFO system
should have been followed in respect of all categories, it is well
established that in Sri Lanka there is no compulsion to follow the said
method on selecting persons for recruitment. Although this system is
indeed adopted, the employer has a discretion to decide the method
of selection. This is however, different to the position in Indian Labour
law where the LIFO systems has been statutorily recognized and
incorporated into the Industrial Disputes Act of India. However In
Industrial Law – P.L. Malik (16th Edition) at page 1105, it is stated
however, that even in the Indian law, there are many situations of
departure from this principle. “Departure from the ‘last come first go’
rule is permissible on valid and justifiable grounds.” It was held by the
Supreme Court of India ” that the employer may take into account
consideration of efficiency and trustworthy character of the workmen,
and if he is satisfied that a person with a long service is inefficient,
unreliable or habitually irregular in the discharge of his duties he may
be retrenched.” “The taw of Dismissal” by Chakravarthi also speaks
of departing from the LIFO rule in an appropriate case.150 Sri Lanka Law Reports [2007] 1 SriL.R
In Sri Lanka there is no requirement for “LIFO” but the
respondent Banks followed it out of prudence in CA. 2282/02 and in
order to establish it’s bona fides. Hence this complaint of the
petitioners is baseless as the respondents Banks established logical
methods in identifying the petitioners for retrenchment.
The petitioner were not allocated any work for over 1 year in a
calculated bid to compel them to accept the VRS packages offered
to them.
The petitioners complain that the 3rd and 4th respondents
illegally and unlawfully transferred the petitioners to a common pool
where they were not allocated any work but were only paid their
monthly salaries. The petitioners allege that the “caging” of these
employees took place over a year prior to the conclusion of the
inquiries pending before the 1st respondent (i. e. on or about January
2002) and therefore, the said illegal transfers were effected during
the course of the inquiry into the applications made for the
termination of the petitioners’ services. It was submitted that whilst
not allocating any work to the petitioners, the 3rd and 4th respondent
Banks outsourced the services of 136 Personnel to carry out the
work previously carried on by some of the petitioners. The said illegal
transfers were brought to the notice of the Banks, and the Banks
were requested to desist from doing so and to recall all employees
who had already been sent on special leave. (Document marked
“E11” with the petition in CA. 1070/03 at page 435 of the brief). The
petitioners allege that the said transfers were effected by the banks
to isolate, frustrate and demoralize the petitioners thereby weakening
their resolve to resist the aforesaid wrongful and unlawful actions as
well as to compel the petitioners to accept the Voluntary Retirement
Scheme (VRS) packages and retire. The petitioners averred that
apart from being totally wrongful, unlawful and illegal, the said acts of
the banks are similar to a situation of ‘non employment’ as
contemplated by the TEW (Special Provisions) Act, but does not
constitute ‘Non-employment’ because the said employees were paid
their salaries.
A similar course of action which was followed by the 3rd and 4th
respondents Indian counterparts, has been held by the Indian
Industrial Tribunal (Mumbai) to be illegal. The aforesaid decision has
been upheld by the High Court of Mumbai, India. (DocumentKumara Fernando and others v
CA Commissioner of Labour and others (Imam, J.) 151
annexed “Z1” and “Z2” with the Petition in CA. Application No. 9oo
1070/03).
It is only after excess staff were identified and after a formal
application had been made to the Commissioner by the 3rd and 4th
respondents in terms of the law for approval to terminate these
persons, whilst all the time paying their salaries, that some of the
petitioners were sent to a different department. All these persons who
were said to the “caged” were paid their full salary and received all
benefits during this period. At the conclusion of the inquiry and
consequent to the Commissioner’s order for compensation (which
was the highest ever award in the annals of Labour Law in the 9 1 0
country as stated by the Commissioner in his objections) the 3rd and
4th respondents immediately deposited the same with the
Commissioner. There was absolutely no attempt to avoid reparating
these persons, and steps had been taken in terms of the applicable
law. (Unlike in the Indian case) to terminate them lawfully. The said
Indian Judgment may be clearly distinguished on the facts, as in that
case the employees were transferred to a different location,
arbitrarily, and no further action taken to terminate them legally.
Hence the Indian Judgment referred to is irrelevant and
distinguished, and has no bearing whatsoever to the present 920
Application. Moreover the provisions of law available under the
‘TEW” (Special Provisions Act) which had been invoked in case of
the 3rd and 4th Respondents, were not available in the Indian case.
Although the petitioners sought to contend that there was
‘outsourcing’ no valid evidence had been led in respect thereof,
except for a list of names tendered by the petitioners which they
failed to substantiate. The petitioners were not compelled to accept
the Voluntary Retirement Scheme (VRS) packages offered to them.
For the aforesaid reasons this complaint of the petitioners is also not
tenable. 930
Necessary Inferences and Material Evidence Disregarded.
The petitioners state that the 2nd respondent has arrived at the
conclusion that Support Staff employees will find it more difficult to
find jobs than the Clerical or Managerial staff employees and
therefore have been offered a better “VRS” package than the other
categories of staff on mere conjecture and without any proper152 Sri Lanka Law Reports [2007] 1 SriL.R
evidence to support the same (para 24 of the report at page 11) The
2nd respondent has given undue and unwarranted weightage to the
number of employees in the other categories who have accepted the
‘VRS’ packages and left, when the same is not in any manner, a 940
material consideration for the determination of issues raised before
him, especially as the majority of the Clerical Staff employees (ie 24
^out of 40) amounting to 60% of the total sought to be retrenched have
not accepted the ‘VRS’ packages. The petitioners submit that the 2nd
respondent has interposed his own personal views whilst
determining this matter which is evident from the contents relating to
globalization etc. as enumerated by him in the said report which are
not matters that are based on any firm evidence.
The aforesaid inferences are decisions, views and observations
which he 2nd respondent arrived at, which relate to his ‘absolute 950
discretion’ being incidental matters – and in my view is an expression
of his views although he has considered the material evidence
completely and drawn inferences accordingly which are correct.
Compensation awarded to the Petitioners – wholly inadequate.
The petitioners allege that the compensation awarded to the
petitioners by the 1st respondent is totally inadequate, and that
severe disparities were apparent in the compensation packages
awarded to the several categories of petitioners. The petitioners state
that although the Banks boast that the highest compensation
packages were awarded in respect of these employees, relevant 96C
criteria when calculating the compensation payable to each
employee had not been taken into account by the Commissioner of
labour. The petitioners contend that the inadequacies and disparities
of the compensation awarded by the 1st respondent to the
petitioners are evident by the following factual examples pertaining to
3 of the employees/ petitioners in the 3 separate staff categories.
Name Category/Period Compensation Outstanding
Y.G.Rodrigo
B.R.Ranasinghe
K.K.D.Kahaduwa
of service
Manageria/19years
Clerical/10 years
Support/6 years
awarded
Rs. 1.2.Million
Rs. 660,000/-
Rs. 510,000/-
Home Loan
Rs. 1.4 Million
Rs. 560,000/-
Rs. 470,000/-
970CA
Kumara Fernando and others v
Commissioner of Labour and others (Imam. J.) 153
Accordingly at the conclusion of 19 years of service
Mr. Y. G. Rodrigo of the Managerial Staff catergory would not receive
the benefit of the compensation awarded to him since his outstanding
Home Loan clearly exceeds the compensation awarded and therefore
he will have to repay the bank a sum of Rs. 2 Million. At the conclusion
of 10 years of service Mr. B.R. Ranasinghe would receive only a sum
of Rs.100,000/- after he settles the outstanding Home loan with the
bank. At the conclusion of 6 years of service Mr. K.K.D. Kahaduwa of
the support Staff category would receive a sum of Rs. 40,000/- after 980
he settles the outstanding Home loan with the Bank. Under these
circumstances the petitioners submit that they are entitled to the
substantive reliefs prayed for in the respective petitions.
Very significantly the entire case of the petitioners and the Union
which represented them, and the evidence before the Commissioner
of Labour at the inquiry, was entirely presented on the basis that what
the Petitioners wanted was enhanced compensation. It transpires
that the Commissioner had reasonably acted on the thrust of the
Union case which is for the grant of compensation and he has held
that due to the merging of 2 entities, and also due to the enhancing 990
of technology that there has been a diminution of the actual need for
cadres, that he should not therefore deny permission to terminate,
and that he should order compensation as contemplated by the Act.
There are several authorities which hold that the Commissioner need
not grant reinstatement and that the he can award compensation
under the “TEW” (Special Provisions) Act. The affidavit of
Mr. Baratha Gnanawickrema President of the Branch Union of the
Ceylon Bank Employees Union in his affidavit filed at page 349 in
CA. 2282/02 states as follows. “Without prejudice of what I have
stated objecting to the grant of approval by the Commissioner of 1000
Labour, I state that the only reasonable relief that should be granted
in the circumstances of this case is salary and other benefits which
the employees would earn up to the age of retirement.
The Only Reasonable Relief
This is substantiated by the fact that Baratha Gnanawickrema
states that compensation is the “only reasonable relief that should be
granted in the circumstances of the case”. Sudheera Wijatilleke and
Baratha Gnanawickrema were office bearers of the Union. None of
the affected workmen gave evidence nor claimed reinstatement. The154 Sri Lanka Law Reports [2007] 1 Sri L.R
aforesaid 2 Office bearers of the Union obviously coordinated to give 1010
evidence in order to make a case out for compensation for all
workmen as they in their capacity as Office bearers of the Union
would be best equipped to comment upon the financial issues in a
post terminal situation.
In this case some positions of the employees retrenched are not
longer in existence, and the status quo cannot be resumed. There
will be utter disaster and mayhem if the workmen claim a return to
work.
Another important issues is what would happen to the large
amount of monies that have been taken by the employees on the 1020
basis that their services were terminated. The Gratuity Act (section 5)
enables the payment of gratuity upon the existence of a terminal
situation. The compensation granted is absolutely in excess of that
formulated by the State in the published compensation formula and
is the highest award made.
I am of the view that the Commissioner has correctly identified
the issues, has analysed the relevant facts in relation to the
redundant staff, has come to a correct finding with regard to their
identification, made orders dated 27.03.2003 having evaluated the
evidence based on relevant principles properly, and hence I see no 1030
reason to interfere with the orders of the 2nd respondent dated
27.03.2003. For the aforesaid reasons, I refuse the Writ Applications
CA. 1070/03, CA. 1080/03 and CA. 2282/02, which are dismissed
without costs.
SRISKANDARAJAH, J. – I agree.
Application dismissed.CA Jayatissa v Appuhamy (Chandra Ekanayake, J.) 155
JAYATISSA
v
APPUHAMY
COURT OF APPEAL
EKANAYAKE, J.
GOONERATNE, J.
CA 752/95 (F)
DC KALUTARA 5170/P
SEPTEMBER 19, 2007
Partition Law- S35 Amendment – Act 17 of 1977 – Scheme Inquiry – Original
defendant permitted to object to final plan – Can the person who is substituted
be given another opportunity to consider plan/ report?
Held:
When the Court had duly and properly allowed the original defendant to
object to the final plan, the person who was substituted in the room of
the deceased defendant cannot be given another opportunity to
consider the plan and the report.
APPEAL from the judgment of the District Court Kalutara.
Daya Guruge with G.M.R. Wimalaweeralor 1A defendant-appellant.
Hemasiri Withanachchi with Shantha Karunadasa for substituted plaintiffrespondent.
November 13, 2007
CHANDRA EKANAYAKE, J.
The 1A defendant-appellant (hereinafter sometimes referred 01
to as the 1A defendant) by this appeal has sought inter alia, to set
aside the order and decree dated 10.08.1995 pronounced in the
District Court Kalutara case No. 5170/P and to direct that a date for
consideration of the final plan and report or a date be given to the
1A defendant to file his objections to the scheme of partition plan
No. 717 and report. As evidenced by Journal Entry No. 106 of
04.09.1995 the final decree dated 16.08.1995 was tendered and
order made to be sent for registration after signing the same. As per156 Sri Lanka Law Reports [2007] 1 Sri LR
Journal Entry No. 109 of 06.10.1995 the final decree had been
returned after due registration.
The original plaintiff had instituted the above styled partition
action in the District Court of Kalutara seeking to partition Lot No.3
of “Dodangodagewatte” alias “Dodangahawatta” in accordance
with the undivided shares shown in paragraph (4) of the plaint. After
filing the statement of claim of the original defendant case had
proceeded to trial and the learned trial Judge by judgment dated
05.04.1991 had ordered a partition according to the undivided
shares embodied there.
After entering the interlocutory decree commission had been
issued to the Commissioner in the case namely – E.T.
Gunawardena for the final survey. As seen by the Journal Entry No.
67 dated 19.03.1992 said Commissioner had returned the
commission with the final plan bearing No. 1162 of 10.02.1992
together with the summary of distribution. Thereafter as per Journal
Entry No. 70 of 29.04.1992 the original defendant’s Attorney-at-Law
having filed a petition supported by an affidavit had moved to reject
the said commissioner’s plan No. 1162 and moved for an
alternative commission. By order of the Court dated 02.06.1992
(J.E.71) application for alternative plan had been allowed and order
was made to issue an alternative commission returnable for
12.08.1992. K.D.L. Wijenayake (L.S) while returning the said
commission had submitted the alternative plan No. 178 of
13.08.1992 and scheme inquiry had been fixed for 09.10.1992.
At the scheme inquiry on a joint application by both parties
commission was issued to both surveyors (Commissioner in the
case and K.D.L. Wijenayake – L.S). It appears from the Journal
Entry No. 82 of 10.03.1993 that, said commission was returned
unexecuted seeking further instructions. Thereafter it was again
fixed for scheme inquiry for 09.10.1992, despite both parties
having agreed to abide by the plan which would be prepared by
both surveyors. However the said commission was not executed
and thereafter the matter was again fixed for scheme inquiry on
29.04.1993. It appears that same being resolved by way of written
submissions (vide Journal Entries 83 to 86) order was fixed for
12.07.1993.CA Jayatissa v Appuhamy (Chandra Ekanayake, J.) 157
By the order dated 12.07.1993 the learned trial judge had
ordered to issue a commission to the Commissioner in the case
namely – E.T.Gunawardane to prepare a plan and a report
according to the instructions given therein. Last paragraph of the
said order is as follows:-
” » § » J 6T3> 8S)d qg£> £S)0 as© g@3«5cs d*S 23 o&Qd
24.50 zs5 ea^a di& 28 ed£)d 23.50 zrf e& d e?7£Q 6® g@D«So
e^^SQjsdjQ EDD SjrfsSzsd^O es® C3®0 cizn ec3 SaftSzad^ecrf GOOD
e3S ^ x 2 ? ^ Q 2 5 5 5 ^ eraoOd zad qseizrf 8 § d CSD^D ODSJJJDOZS! e3@eo
mdaftn.”
That is the plan (No.717) and report submitted in compliance
with the above order. Though a joint commission was ordered to
bear the expenses jointly by both parties, it is seen from Journal
Entry No.95 the plaintiff had undertaken to pay the defendant’s
share of the commission fees and subsequently commission had
to be issued to another Licensed Surveyor as the Commissioner in
the case had withdrawn. In the result in compliance with the order
of Court Commissioner had been issued to G. Adikaram (Licensed
Surveyor) vide Journal entry 97 of 19.01.1995 and the respective
marginal note of the Registrar of the District Court. The final plan
bearing No. 717 dated 25.04.1995 with the report and the other
annexures was submitted by G. Adikaram (L.S) as a result of the
order of Court dated 12.07.1993, which being the order made after
scheme inquiry. For the first time death of the defendant had been
brought to the notice of Court on 21.06.1995 (J/E-103) and on
16.08.1995 the 1A defendant was substituted in the room of the
deceased-defendant. On that day since there was no objection
from 1A defendant, said final plan had been confirmed. Since it was
a plan and report submitted in compliance with the joint
commission issued in terms of the order dated 12.07.1993 which
being an order with regard to the scheme inquiry held (in which the
original defendant too participated) no further date need be given
to the 1 A defendant to consider same.
In this respect examination of the provisions in section 35 of
the Partition Law (as amended by Act No. 17 of 1977) would
become relevant. Plain reading of that section would reveal that158 Sri Lanka Law Reports [2007] 1 Sri L.R
after the return to the commission the Court shall call the case in
open Court to fix a date for the consideration of the scheme of
partition proposed by the surveyor. Of course the time frame within
which that has to be done is given in the section. In the case at
hand Court had already complied with this provision and
furthermore the original defendant being the only defendant in the
case was even given an opportunity to tender objections to the final
plan and scheme inquiry was fixed. At the inquiry also the original
defendant had been duly represented by Counsel and the
aforesaid order dated 12.07.1993 was the order which was
pronounced after the said inquiry. It is seen that thereafter only the
death of the original defendant had occurred and 1 A defendant
was substituted. When the Court had duly and properly allowed the
original defendant to object to the final plan bearing No. 1162, the
person who was substituted in the room of the said deceaseddefendant (1 A defendant) cannot be given another opportunity to
consider the plan and report (plan No. 717) which being the
outcome of the order dated 12.07.1993 – order of the scheme
inquiry. For the reasons given as above I see no error in the order
dated 16. 08.1995 of the learned District Judge confirming the final
plan bearing No. 717 with the report and the other annexures and
in the judgment pronounced also.
For the foregoing reasons this appeal should fail. I would
accordingly dismiss the appeal with costs fixed at Rs. 15,000/-
GOONERATNE, J. – I agree.
Appeal dismissed.CA Neville Fernando v Chandrani Fernando 159
NEVILLE FERNANDO
v
CHANDRANI FERNANDO
COURT OF APPEAL
EKANAYAKE, J.
GOONARATNE, J.
CA 902/95
DC KALUTARA 2731/D
JULY 9, 2007
Civil Procedure Code – Divorce – Ground of constructive malicious desertionRequirements – Burden on whom? Is it a question of fact? Matrimonial relief only
to the innocent spouse?
The plaintiff-appellant instituted divorce action seeking a divorce vinculo
matrimonii dissolving the marriage between him and the defendant-respondent
on the ground of constructive malicious desertion of the defendant.
The trial judge dismissed the action holding that, leaving of the matrimonial home
by the plaintiff was not due to any fault of the defendant and according to law
matrimonial reliefs could be granted only to the innocent spouse.
Held:
1) In the case of constructive malicious desertion the spouse who is out
of the matrimonial house must show that the other acted with fixed
intention of putting an end to the marriage and the burden of proving
just cause in order to assert constructive malicious desertion is on the
spouse who alleges constructive malicious desertion.
2) To constitute the offence of constructive malicious desertion by the
defendant the necessary conduct should be of grave and convincing
character.
3) It would be for the judge to say whether the facts were capable of
being regarded as equivalent to an expulsion from the matrimonial
home.
“the function of an appeal Court is to consider the matter without either
denying its first Court its special advantages or supposing that it can
place itself in the same position by a mere study of the record.”
APPEAL from the judgment of the District Court of Kalutara.160 Sri Lanka Law Reports [2007] 1 SriL.R
Cases referred to:-
1) Anulawathie v Gunapala and another- 1998 – 1 Sri LR 93.
2) Edwards v Edwards – 1949 – 21 ALL ER 145.
3) /Wesv4//es-51 NLR416.
4) Chellammah v Kanagapathy- 65 NLR 49 at 52.
\5) Oberholzerv Oberholzer- 1921 – A.D. 272 at 274.
6) Alwis v Piyasena Fernando – 1993 – Sri LR 119.
Asoka Fernando with Ms. Manori Manik and M. Gamage for plaintiff-appellant.
Rohana Deshapriya for defendant-respondent
September 21,2007
CHANDRA EKANAYAKE, J.
The plaintiff-appellant (hereinafter sometimes referred to as the 01
plaintiff has preferred this appeal from the judgment of the learned
District judge of Kalutara dated 20.11.1995 pronounced in District
Court, Kalutara Case No 2731/D seeking inter alia to set aside the
said judgment and decree of the District Court and to enter judgment
and decree as prayed in the plaint.
The plaintiff had instituted the above styled divorce action
against the defendant-respondent (hereinafter sometimes referred to
as the defendant) seeking inter alia a divorce vinculo matrimonii
dissolving the marriage between the plaintiff and the defendant on the 10
ground of constructive malicious desertion of the defendant. The
defendant by her answer dated 20.10.1993 whilst admitting only the
marriage and the birth of the 2 children namely – Himal Nilruksha
Hikkaduwa, Malshi Nilrukshi Hikkaduwa had prayed for a dismissal of
the plaintiff’s action. By way of further answer defendant had
contended that the plaintiff was living with another lady and even a
child was born to her as a result of the said undue intimacy and
denying the averment in paragraphs 7 of the plaint stated that in or
about February 1987 she was chased out of the matrimonial home by
the plaintiff after ill-treating her and harassing her. 20
When the trial commenced having admitted the marriage
between the plaintiff and the defendant and that the matrimonial home
was at No. 35, Siri Nawasa Mawatha, Kalutara-North, case hadCA Neville Fernando v Chandrani Fernando (Chandra Ekanayake, J.) 161
proceeded to trial on issues I to 6 and 9-10 raised on behalf of the
plaintiff and the defendant respectively. Since the plaintiff had agreed
to give custody of the above two children to the defendant (as
appearing at page 26 of the brief), the learned trial judge had stated in
the judgment no necessity arises to answer the said issues 7 and 8.
Case of the plaintiff had been concluded with evidence and no
oral evidence had been adduced for the defendant’s case.
The learned Trial judge by the impugned judgment had
dismissed the plaintiff’s action with costs. This is the judgment this
appeal has been preferred from.
Perusal of the evidence of the plaintiff reveals that the defendant
was in the habit of coupling names of the females and to quarrel with
him even prior to the marriage and the defendant continued to do so
even after the marriage. His position had been that as he had to leave
the matrimonial home he left. Further his evidence in examination-inchief at page 39 of the brief had been to the following effect:
C : ®8
g •• ozaoSzsoeoci 8 0 ^ gatesf?
C •• 1992 Db&od 8 0
The evidence to the above effect was not contradicted and his
evidence in cross examination (at page 50 of the brief) had been that
one lady by the name Priyangani had a child from him and said child’s
birth certificate was also produced through him marked as V3. He had
further testified that said child was born on 18.04.1993 and particulars
to prepare V3 was furnished by him and the above position is
supported by the particulars appearing in cage 9 of V3. According to
V3 father of child born to said Priyangani is Hikkaduwa Nevil
Fernando – the plaintiff.
Having subjected the evidence of the plaintiff with regard to the
conduct and behavior of the wife (the defendant) to a severe scrutiny
the trial judge had concluded in the judgment that leaving the
matrimonial home by the plaintiff was not due to any fault of the
defendant and according to our law matrimonial reliefs could be
granted only to the innocent spouse.162 Sri Lanka Law Reports [2007] 1 SriLR
It is to be observed that the basis of the plaint and issues of the
plaintiff had been on the constructive malicious desertion of the
defendant-wife In the case of constructive malicious desertion the
spouse who is out of the matrimonial home must show that the other
had acted with fixed intention of putting an end to the marriage and
the burden of proving just cause in order to assert constructive
malicious desertion is on the spouse who alleges constructive
malicious desertion,- in this case the plaintiff husband. Therefore it
becomes essential to examine the actual facts of the case in order to
ascertain whether the party was obliged to leave the matrimonial
home as a direct consequence of the expulsive acts of the spouse
said to have been at fault. It was observed by Weerasuriya, J. in the
case of Anulawathie v Gunapala and another) as follows:
“It is to be observed that when a party seeks a divorce on
the ground of constructive malicious desertion what is
required to be proved is that, the innocent party was
obliged to leave the matrimonial home as a direct
consequence of the expulsive acts of the other party.”
To constitute the offence of constructive malicious desertion by
the defendant (here the wife), the necessary conduct should be of
grave and convincing character. In this regard it would be pertinent to
consider the decision in Edwards v Edwards^2). Their Lordships at
148:
but the necessary conduct must, from the very nature
of the offence of desertion, obviously be of a grave and
convincing character. Whether in any given case this
requirement is fulfilled is a question of fact on which a jury
would require to be carefully directed. It would be for the
judge to say whether the facts were capable of being
regarded as equivalent to an expulsion from the
matrimonial home.”
In the light of the above decision it is clear that in any given
circumstances whether requirements to constitute constructive
malicious desertion are fulfilled, is a question of fact.
The observations of Lord Radcliffe with regard to finding of fact
by a trial judge, In Alles v Alles® would also be of importance. Per
Lord Radcliffe at 421.CA Neville Fernando v Chandrani Fernando (Chandra Ekanayake, J.) 163
“To reverse this finding on appeal would be a strong step.
Only justified if the trail judge had demonstrably misjudged
the position.”
Similarly Lord Radcliffe in delivering the Privy Council judgment
in Chellammah v V. KanagapathyW at 52 has succinctly stated the
circumstances in which a finding of fact of a trial court could be
interfered with. Per Load Radcliffe at 52.
“The function of an Appeal Court is therefore to consider the
matter without either denying its first Court its special
advantages or supposing that it can place itself in the same
position by a mere study of the record. With these limitations
in mind it has to decide whether the judge’s findings of fact,
since no question of law is in dispute, are so far
unmaintainable upon the whole conspectus of the evidence,
oral and documentary, that they cannot be supported.”
The following observation made in Oberholzerv Oberholzet5) at
274 would be important in the circumstances of this case.
“These matrimonial cases throw a great responsibility
upon a Judge of the first instance, with the exercise of
which we should be slow to interfere. He is able not only
to estimate and credibility of the parties but to judge of
their temperament and character. And we, who have not
had the advantage of seen and hearing them, must be
careful not to interfere, unless we are certain, on firm
grounds, that he is wrong.”
The above principle was followed by His Lordship the Chief
justice G.P.S. de Silva, in the case of Alwis v Piyasena Femandd®. It
was held amongst other things that:
“The Court of Appeal should not have disturbed the findings
of primary facts made by the District Judge on credibility of
witnesses.”
In this case the most vital issues of the plaintiff appear to be
issues 1 and 2. Those are to the following effect:
” 1 o j @ ^ d G d ^GQ£> <3&$ed oqsozrf 08^ o^@€Sg2sx5j esSStoeozs164 Sri Lanka Law Reports [2007] 1 SriLR 2 ipsozsi oqsozrf £3q°6o <$eci oOznd £>8@0 Sgged SzrfSzsita
jSca^?”
The learned trial judge had answered issue No. (1) in the
affirmative and (2) in the negative. Examination of the plaintiff’s
evidence demands the answer to issue No. (1) to be in the affirmative.
What needs consideration now is whether the learned judge was
correct in answering issue No. (2) in the negative. Perusal of the
impugned judgment reveals that (as appearing at page 67 of the brief) no
it had been concluded that under those circumstances it cannot be
said that there were strong reasons compelling the plaintiff to leave
the matrimonial home. The legal position too had been considered by
the learned judge. Judge’s finding on facts appear to be that
according to the own testimony of the plaintiff he had been living as
husband and wife with another lady (from 1992) and thus a
matrimonial offence by plaintiff was proved before the Court.
Therefore he was not an innocent party. Further the learned judge
appears to have considered what really led the plaintiff to leave the
matrimonial house in February 1987 (as averred in the plaint). 150
Whether it was due to the fault of the defendant-wife. The finding with
regard to the above appearing at page 68 of the brief is as
follows:
“… o®@ zDgeOzrf oDcSd epjj§ eps^®0 1986 QSssed e^S^ogzadjO
ozstex; z552rf esqsozrf GaJqjrf © s ) sSide&o zsxs oznDeo^”
Of course according to paragraph 7 of the plaint the date of
leaving the matrimonial home by the plaintiff appears to be 14.2.87.
Issue No 01 also refers to the averments in paragraph 07 of the plaint.
When concluding as above with regard to constructive malicious 160
desertion it is seen that year 1986 is mentioned there. However
paragraph 07 of the plaint gives the date of leaving as 14.02.87.
Therefore it is evident that due to some inadvertence, year 1986
appears in the aforesaid finding.
On the evidence available I am unable to infer that plaintiff had
left the matrimonial home in February 1987 due to direct
consequence of any expulsive acts of the defendant. Further plaintiff’s
own evidence in cross examination had*been that in or about 1987 theCA Perera v Caldera and others 165
defendant was living in Colombo as she had to follow a course in
Borella and he left the matrimonial home in 1986 November or
December. Plaintiff’s evidence to the above effect would suffice to
answer issue No. 02 in the negative since it appears that in February
1987 the defendant had not even lived in the matrimonial home.
Having examined the evidence I am inclined to agree with the
findings of the learned trial judge and I conclude that issues had been
correctly answered.
For the foregoing reasons I see no justification in interfering with
the findings. Accordingly this appeal is hereby dismissed. In all
circumstances of the case no order is made with regard to costs.
GOONERATNE, J. – I agree.
Appeal dismissed.
PERERA
v
CALDERA AND OTHERS
COURT OF APPEAL
EKANAYAKE, J.
GOONERATNE, J.
CA 1096/96 (F)
DC HOMAGAMA 235/P
AUGUST 27, 2007
Civil Procedure Code – S114 (3) – S154 (3) – S187 – Documents marked
become part of the record – Should Court call for documents? Answering of
issues – Bare answers – adequate ?
Held:
(1) The absence of answering the points of contest in a judgment –
would amount to a clear breach of S187.
(2) The points of determination and the decision thereon needs to be
embodied in the judgment which would refer to the reasons for such
decision.166 Sri Lanka Law Reports [2007] 1 SriLR
(3) There is a duty on Court to take the documents tendered and
marked at the trial to the custody and keep1 them filed of record –
documents marked in evidence become part of the record.
Per Anil Gooneratne, J.
There seems to be a serious lapse in this case where a judgment has been
pronounced without documents being considered by the original Court, and it
would be no excuse for a trial Court Judge to observe on the judgment that the
defendant had not tendered the marked documents to Court. The District
Judge should call for those documents”.
APPEAL from the judgment of the District Court of Homagama.
Case referred to:-
(1) Podiralahamy v Ran Banda – 1993 – 2 Sri LR 20.
(2) Dona Lucihamy v Ciciliyanahamy – 59 NLR 214
(3) Warnakula v Ramani Jayawardane – 1990 1 Sri LR 207
November 27, 2007
ANIL GOONERATNE, J.
This appeal arises in a partition case from the Judgment of
District Judge, Homagama dated 4.10.1996. In the Judgment it is
stated that parties proceeded to trial on 7 points of contest. Plaintiff
had produced plan marked ‘x’ and two deeds marked P1 & P2. In
the Judgment the learned District Judge states that the documents
produced in evidence by the defendants had not been tendered to
Court. In the petition of Appeal it is also averred inter alia that the
learned trial Court Judge had not given due consideration to the
evidence led by the defendants and the Judgment had been
delivered in the absence of the document of the defendants. It is
the position of the appellant that the Judge had failed to call for the
defendant-appellant’s documents.
On a perusal of the Judgment I find that the learned Trial
Court Judge had not considered the points of contest. In the
absence of answering the points of contest in a judgment would
amount to a clear breach of section 187 of the Civil Procedure
Code.
In paragraph 7C of the Petition of Appeal it is averred that
court made order for lis pendens on 21. 7.1988 and 9. 3.1989 but
there is no compliance with the court order.U A Perera v Caldera and others (Anil Gooneratne. J.) 1 b /
There seems to be a serious lapse in this case where a
judgment had been pronounced without documents being
considered by the Original Court and it would be no excuse for a
trial Court Judge to observe in the Judgment that the defendant
had not tendered the marked documents to Court. The District
Judge should call for those documents. In Podiralahamy v Ran
BandaSV It was held that –
“There is a duty on Court to take the documents tendered and
marked at the trial to its custody and keep them filed of record.
Documents marked in evidence become part of the record,” 30
and
At pg. 21 – The provision of section 154 (3) reads as follows:-
“The document or writing or being admitted in evidence the
Court, after marking it with a distinguishing mark or letter by which
it should when necessary be ever after referred to throughout the
trial.”…
The explanation to the subsection reads as follows:-
” Whether the document is admitted or not it should be marked
as soon as any witness makes a statement with regard to it and if
not earlier marked on the account, it must at least be marked when 40
the Court decides upon admitting it”.
In the instant case the defendant-appellant’s documents D1 to
D10 were not only marked but also led in evidence without any
objection from the opposing party. Those documents have been
admitted; therefore the Court in terms of the provisions of section
114(3) should have kept them in its custody. If was for convenience
the Court had allowed the Attorney-at-Law to the defendantappellant to retain the documents during the trial, there was a duty
cast on the learned District Judge to call for the documents.
The learned Counsel or the appellant cited an unreported so
authority CA/SC No. 63/76(F) D.C. Kurunegala No. 357/LCA
minutes of 25.10.1984, where Justice Atukorala observed: “we are
of the view that documents once marked in evidence become part
of the record and should remain the custody of Court.”168 Sri Lanka Law Reports [2007] 1 Sri LR
The Judgment gives no indication to the points of contest
raised at the trial. Even the bare answers to points of contest
although not permissible and not suggested or answered by the
original court would make this a bare judgment without the required
requisites in term of section 187 of the Civil Procedure Code. The
Appellate Court should be in a position to glance through the 60
answers given to the points of contest before examining the
reasons for same, and should not be called upon to re-write the
judgment of the Original Court to fill in the gaps by suggesting that
no prejudice would be caused to the parties notwithstanding the
bare answers to issues. In the instant case not even the bare
answers are incorporated in the judgment of the Original Court.
Section 187 of the Code reads thus….
“The judgment shall contain a concise statement of the case,
the points for determination, the decision thereon, and the reasons
for such decision; and the opinions of the assessors (if any) shall 70
be prefixed to the judgment and signed by such assessors
respectively.”
The points for determination and the decision thereon needs
to be embodied in the Judgment, which should refer to the reasons
for such decision. I am inclined to follow the decision on requisites
of Judgment reported in Lucyhamy’s Case<2) and Warnakula v Ramani JayawardeneM. The Court is not inclined to deviate from the usual and normal practice of answering the issues or points of contest. In the circumstances there is no need to examine the merits of so this case in the absence of mandatory requirements which have not be complied with by the Original Court. Therefore I set aside the Judgment of the learned District Judge and send the case the back for trial de novo. Subject to this direction this appeal is allowed with cost. EKANAYAKE, J. - I agree. Appeal allowed. Trial de novo ordered.