009-SLLR-SLLR-1996-1-BLANAK-DIAMONDS-PVT-LTD.-V.-COEME.pdf
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BLANKA DIAMONDS (PVT) LTD.
V.
COEME
COURT OF APPEALH. W. SENANAYAKE, J.
C. A. No. 202/94.
29 SEPTEMBER, 11 DECEMBER, 1995.
AND 8 JANUARY 1996.
Certiorari – Vacation and abandonment of post – Termination of Employmentof Workmen (Special Provisions) Act, ss. 2(1), 6 – Commissioner of Labour’snomination of inquirer – Necessity to give reasons – Order under section 6of the – Termination of Employment of Workmen (Special Provisions), Act- Jurisdiction to hold inquiry in the absence of termination – Requirementof affording party to present his case – Natural Justice – Fair hearing.
Held:
Other than in exceptional cases, reasons must be given. As reasonswere in fact given though late there was no lapse here.
Although under section 6 of the Termination of Employment of Workmen(Special Provisions), Act the order that the Commissioner could make isan order to re-employ the workmen, in view of the words of the sectionbeing 'may order’ and not ‘shall order* the Commissioner is vested with adiscretionary power. As the employee was an ex-patriate and his visa wasfor a specific period the circumstances justify the Commissioner in hisdiscretion ordering compensation rather than re-employment. Hence theorder is not ultra vires.
In arranging for a replacement for the employee the employer hadconstructively terminated the services of the employee. Hence theCommissioner was within his rights in appointing an officer to hold aninquiry and the officer so appointed had jurisdiction to hold the inquiry.
The facts do not support the plea that the petitioner was not given anopportunity to present his case. A witness had been cross-examined onhis behalf on the facts and an opportunity to tender a counter affidavit wasalso given though not availed of. There was a fair hearing given to thepetitioner.
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Case referred to:
1. Reg. v Home Secretary Ex parte Doody H/L, 1993 3W.L.R. p. 169.
APPLICATION for a Writ of Certiorari to quash orders of the Senior AssistantCommissioner and Commissioner of Labour.
Faiz Mustapha P.C. with Gomin Dayaslri and Sanjeewa Jayawardena forPetitioner.
V. C. Mothilal Nehru P.C. with S. Mahenthiran and Mrs. Joseph for 1stRespondent.
Adrian Pereira S.C. for 2nd and 3rd Respondents.
Cur. adv. vult.
March 22, 1996.
H.W. SENANAYAKE, J.
The Petitioner filed this application invoking the jurisdiction of thisCourt to issue a Mandate in the nature of a Writ of Certiorari to quashthe orders contained in ‘P-23’ and ‘P-33’ made by the 2nd and/or 3rdRespondents.
The relevant facts briefly were, the Petitioner was a duly incorpo-rated Company under Law relating to Companies in Sri Lanka. It wasan Associate Company fully owned by VandenEynde and Zonen (Sons)Ltd., situated in Antwerp in Belgium.The 1st Respondent in responseto an advertisement appearing in the News Paper in Belgium was se-lected and given an assignment in Sri Lanka where he was appointedas the Managing Director of the Petitioner Company and the 1st Re-spondent accepted the appointment on or about February, 1991. ThePetitioner averred that the 1st Respondent abruptly vacated and orabandoned his post of the Petitioner Company on or about 2nd June,1992. The 1 st Respondent made an application to the 3rd Respondentin terms of theTermination of Employment of Workmen (Special Provi-sions) Act (hereinafter referred to as T.E. Act). The 3rd Respondentnominated M. R. Kannangara, Assistant Commissioner of Labour toinquire into this application; due to certain objections taken by thePetitioner to the hearing of the inquiry by Mr. M. R. Kannangara, the3rd Respondent appointed the 2nd Respondent to hear the inquiry.
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At the commencement of the inquiry on 10th November, 1992 theCounsel for the Petitioner raised a preliminary objection that the 3rdRespondent did not have jurisdiction to hear and determine the com-plaint of the 1 st Respondent on the grounds-
the Petitioner did not terminate the services of the 1stRespondent as he vacated and or abandoned his post.
the Petitioner is not the employer,
the 1st Respondent is not a workman within the schedule ofthe T.E. Act.
The 2nd Respondent had indicated that evidence should be ledbefore a determination is made on the objections. The 1st Respondenttendered an affidavit and at a subsequent stage tendered the correcttranslation acceptable to both parties marked‘P-12’and‘P-13’. In ad-dition to the affidavit also the said evidence of the 1 st Respondent andthe Counsel for the Petitioner had confined his cross-examination tothe question of jurisdiction in view of the order made by the 2nd Re-spondent. After the 1 st Respondent’s evidence was concluded the Pe-titioner called a witness and also tendered the affidavit marked‘P-14’.Thereafter, the 1st Respondent and the Petitioner tendered written sub-missions and the 2nd Respondent by order‘P-23’ dismissed the objec-tions raised by the Petitioner and held that the 1st Respondent’s serv-ices had been terminated by the Petitioner contrary to the provisionsof section 2(1) of theT.E. Act. The Petitioner had requested to file ob-jections to the order made by the 2nd Respondent.The 2nd Respond-ent made order that objections be filed with regard to the salary andother benefits claimed by the 1 st Respondent in the document marked‘A-X’.The Petitioner’s objections were –
the undated order was bad in law,
the scope of the inquiry on which the said order was based wasrestricted to the preliminary objections raised,
the Petitioner was denied the opportunity to cross-examine the1st Respondent on his affidavit including the averments in paragraphs7 and 12 including the document ‘a-x’ marked ‘P-23’,
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the 2nd Respondent has failed to consider that the Petitionerhas reserved his rights to cross-examine on matters in the affidavit ofthe 1 st Respondent and that the Petitioner has been denied the rightto lead the evidence from Vanden Eyned and Zonen Ltd., by reason ofthe order of the 2nd Respondent in respect of the scope of the inquiry,
there has been denial of natural justice. The 3rd Respondent bydocument ‘P-30’ made order in terms of section 6 of the T.E. Act todeposit a sum of Rs. 7,349,580.50 cts. on or before 15.02.1994.
The Petitioner further averred, as the scope of the inquiry wasrestricted to the determination of the preliminary issue, the Petitionerwas denied the opportunity to lead the evidence or cross-examine the1st Respondent on aspects which was the subject matter and alsomatters relating to section 2 and 6 of theT.E Act.They further averredthat the 2nd and 3rd Respondents made order in ‘P-30’ based on theaffidavit of the 1 st Respondent without giving the Petitioner an oppor-tunity of presenting evidence or cross-examining the 1st Respondenton his affidavit. They further averred that the 2nd and 3rd Respond-ents had failed to give reasons when so requested.
The learned Counsel for the Petitioners first submission was thatno reasons had been adduced by the 3rd Respondent for the order‘P-30’. In going through the record I find that the 2nd and 3rd Respond-ents had not filed a statement of objections. He relied on the submis-sions as no reasons were given for the order in ‘P-30’. The said orderwas in breach of principles of natural justice. During the course ofsubmissions the State Counsel indicated to Court that the reasonswere available in his file and the Court directed to file a copy of thereasons and give a copy to the Petitioner’s Counsel and the 1 st Re-spondent’s Counsel. Therefore, even at the late stage the reasons weremade available. Therefore one cannot hold that‘P-30’was made with-out any reasons. This court has taken the view, that the duty to givereasons is yet another aspect of the requirements of procedural fair-ness. The beneficial effect of a duty to give reasons are numerous. Tohave to provide the explanation of the basis for their decisions is asalutary discipline for those who have to decide anything that adverselyaffect others.The giving of reasons is regarded as one other principleof good administration. The giving of reasons may protect the body
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from unjustified challenges because those adversely affected are morelikely to accept decisions If the reasons are available. In addition fun-damental fairness and respect for the individual often requires thatthose in authority over others should give reasons. As Lord Mustiffobserved in the case of Reg. v. Home Secretary exparte Doody H/L. <1>“I find in the more recent cases on judicial review a perceptible trendtowards the insistence on greater openness or if one prefers the con-temporary jargon‘Transparency’ in the making of administrative deci-sions. This tendency has been an increasing recognition both in therequirement of statute and the decisions of the Court”.
In a land mark decision of the Court of Appeal in R. v. Civil ServiceAppeal Board exparte Cunningharf-2> held that the Civil Service AppealBoard a judicialised’ tribunal established under the Royal prerogativewas under a duty to give reasons for its decisions, sufficient to showwhat it has directed its mind and to indicate whether its decisions arelawful and a failure to do so is a breach of natural justice”.
This Court has taken the view that there are exceptional casesand situations where reasons need not be given especially when thesecurity of the State is involved. However, I am of the view, the con-cept of natural justice should not be viewed in a narrow perception, theform of the determination is part of the procedure of the hearing and isno less subject to the requirements of natural justice than any otherpart.
But however in this instant even at a late stage reasons had beenadduced though there was no opportunity available for the Petitioner tosatisfy that the determination on‘P-30’ was based on the reasons whichwas filed in Court at a subsequent stage on direction of Court. How-ever, there was a duty on the part of the 2nd and the 3rd Respondentsto file a statement of objections attaching a copy of the reasons ten-dered to Court. This was a very serious lapse on the part of the 2ndand 3rd Respondents, in my view it is a short fall not expected fromthe Head of the Department. As reasons were tendered even at thelate stage I am of the view, the submission of the learned Counsel forthe Petitioner has no force.
The second submissions of the learned Counsel was that the order
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‘P-30’ made under section 6 of the T.E. Act was ultra vires. His sub-mission was that the 3rd Respondent had acted without jurisdictonwhen he ordered compensation in terms of section 6 of the T.E. Act.His submission was that the only order that the Commissioner couldhave made under section 6 to order the Petitioner to employ the work-men with effect from a date specified in such order in the same capac-ity in which the workman was employed prior to such termination …and it shall be the duty of the employer to comply with such order. Andthe order in‘P-30’ was an order for payment of compensation which isultra vires and was of no avail or effect in law.
I am unable to accept the submissions of the learned Counsel forthe Petitioner. The Commissioner in terms of section 6 of the T.E. Acthas a discretion in view of the word used in section 6.The words usedare'may order’ and not'shall order’.The Legislature in its wisdom hadgiven the Commissioner a discretionary power as each case has todepend on various factors and circumstances. The word ‘may order’was considered in an unreported case the Ceylon Mercantile Union v.Messrs Vinitha Limited and the Commissioner of Labour,^ decided on29th March, 1976Tennakoon, C.J. observed “the words in the sectionare ‘may order’ and not ‘shall order' the legislature obviously did notcontemplate that in every case of Termination of Employment withoutthe permission of the Commissioner of Labour, it would be mandatoryon the Commissioner to order reinstatement or continuance of employ-ment upon a complaint being made to him under section 6 “I am boundby the interpretation given by a Bench of three Judges of the SupremeCourt. In the instant case the 1 st Respondent was an ex-patriate andhis visa was granted for a specific period. Therefore, it is my view thecircumstances and facts of each case have to be considered on itsown merits and the Commissioner in those circumstances consideringsection 6 exercised his discretion without making an order for continu-ance of service. Therefore I am of the view that the submissions of thelearned Counsel for the Petitioner giving a restrictive interpretation tosection 6 of the T.E. Act has no merit.
The third submission of the learned Counsel for the Petitioner wasthat the 2nd and the 3rd Respondents had no jurisdiction to inquire intothis matter as there was no termination of the services of the 1stRespondent as contemplated in terms of the provisions of section ‘2(1)’
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of the T.E. Act. The document ‘A-2’ establishes that the 1 st Respond-ent was employed as a Managing Director of Blanka Diamonds Pvt.Ltd., and ‘A-3’ establishes that he was in receipt of a salary of 3000U.S. dollars per month. The document ‘A-6’ dated 20th May 1992 writ-ten by the 1st Respondent to Mr. Vanden Eyn de informing him that hewas shocked that a new Managing Director had arrived on 21.03.92 toreplace him at Blanka Diamond Ltd. and document ‘A-9’ the reply of P.Vanden Eyn de clearly shows that he wanted the 1st Respondent toteach the incoming person Mr. Wilfried who was to take the place ofthe 1st Respondent's position as the Managing Director and teach theknowledge of production and administration. This document clearlyestablished that the intention of the Petitioner was to replace the 1stRespondent by a New Managing Director. The Petitioner did not obtainthe written authority of the Commissioner to take the steps or the priorconsent in writing of the 1st Respondent. The Petitioner’s action was aconstructive termination of the services of the 1 st Respondent. There-fore, I am of the view that the Commissioner had jurisdiction to inquireinto the complaint made by the 1st Respondent.
The Petitioner had not tendered all the documents that were filedby the 1st Respondent before theTribunal.They had filed only part ofthe documents. am unable to accept the contention of the learnedCounsel that the Commissioner did not have jurisdiction to hear thecomplaint of the 1st Respondent.The contention of the learned Coun-sel was that since the 1st Respondent has vacated and had aban-doned his work place the Commissioner had no jurisdiction under theT.E. Act to a hold an inquiry for the reason that the workman had ten-dered his resignation to vacate or abandon his post. But the docu-ments tendered clearly indicate that the Petitioner's action amountedto constructive termination of the services of the 1st Respondent.
The fourth submission of the learned Counsel for the Petitionerwas that he was not given an opportunity to present his case. I amunable to accept his submission; in fact the Petitioner had called Wilfriedde Van Els was examined and cross examined by the Petitioner’s Coun-sel and the 1st Respondent’s Counsel and the 1st Respondent wasexamined and cross-examined at great length; he was cross-exam-ined regarding his salary and other allowances and regarding the vari-ous perks that he was entitled to. Therefore, I am unable to accept the
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position that the Petitioner was not given an opportunity to present hiscase.The Petitioner’s Counsel attempted to show that the inquiry waslimited to the question of jurisdiction. In view of the 2nd Respondent’sorder dated 03.12.92 if that was so there was no necessity to cross-examine the 1st Respondent regarding his salary and other emolu-ments and perks that he received from the Petitioner. Furthermore, thePetitioner was given an opportunity to counter the specific paragraphsof the affidavit tendered by the 1st Respondent regarding his salaryand other emoluments. The Petitioner had the opportunity to tender acounter affidavit but he had failed to do so.Therefore I am of the view,there was no breach of principles of natural justice as the Petitionerwas heard and was given every opportunity to present his case.Theinquiry had proceeded for a number of dates. Therefore, I am of theview, there was a fair hearing given to the Petitioner. In view of theabove reasons, I am unable to accept his submissions that there wasa violation of principles of natural justice.
I do not see any merit in this application. In the circumstances, Idismiss the application with costs fixed Rs. 20,000/- to be paid to the1st Respondent.
Application dismissed.