ABEYRATNE VS. STATE TIMBER CORPORATION

ABEYRATNE
VS.
STATE TIMBER CORPORATION

COURT OF APPEAL
SRI SKANDARAJAH. J.
LECAMVASAM. J
CA WRIT 234/2009
DECEMBER 14, 2009.

Writ of Certiorari-State Industrial Corporations Act 49 of 1957 - Section 14, Section 26, Section 34, Section 35- Quashing appointment of the Chief Internal Auditor-Contract of employment-Does writ lie? Public Law-Private Law

The petitioner Assistant Internal Auditor of the Respondent Corporation by a Writ of Certiorari and a Writ of Quo-Warranto was seeking to quash the appointment of the 13th respondent as the Chief Internal Auditor of the 1st Respondent Corporation.

The respondent in the preliminary objection raised contended that, the appointment of the 13th respondent is arising from a contract of employment between the 13th respondent and the 1st respondent and challenge to a contract of employment has to be by civil action and not by judicial review-and the appointment was made by the Board of Directors of the 1st Respondent Corporation exercising the power vested in the Board of Directors under Section 35 of the Act.

Held:

(1) The Board of Directors is authorized to appoint officers and servants as may be necessary for the purpose of the Corporation in the absence of any statutory provision or any rule or regulation in relation to the scheme of appointment to a particular post, the grounds of dismissal and disciplinary control of officers/servants One cannot come to the conclusion that there is a statutory underpinning to the employment of the officers/servants.

(2) Even though the power to appoint officers/servants are provided by a statute, that statutory power will not extend to cover the relationship between the Corporation and the employees unless there is a rule or regulation regulating the relationship by providing guidelines of appointment, promotion, disciplinary control and dismissal.

Per Sri Skandarajah J

"Even if one presumes that the 13th respondent is not qualified to be appointed as Internal Auditor but he was appointed by the Board as Internal Auditor - his appointment can be challenged by way of civil action-it cannot be said that the appointment is an abuse of power conferred on the Board of the 1st Respondent Corporation under section 35."

Per Sri Skandarajah.J.

"It is common ground (hat the 13th respondent was appointed by the Board of Directors under the power vested in (he Board under section 35. The required qualifications, nature of employment the terms and conditions of employment are all matters in relation to the contract of employment between the employer and the employee. In these circumstances, the petitioner cannot challenge the said appointment by way of judicial review."

APPLICATION for a writ of certiorari/quo warranto on a preliminary objection taken.

Cases referred to:

1. K.S. de Silva vs. National Water Supply and Drainage Board -1989 - 2 Sri LR 1 at 4.
2. Reg vs British Ceal Corporation - Exp Vardy [D.C.] - 1993 QB 726 at 747
3. Reg vs. Panel on Take Overs and Merchants - Ex parte Datafin P/L - 1987 -QB 815
4. Reg. vs. Disciplinary Committee of the Jocky Club - Ex parte Agakhan - 1993 1 WLR 909
5. Council of Civil Service Union vs. Member of the Coil Service - 1985 1 CR 1436
6. Reg vs. East Berbslune Health Authority Ex parte Walsh -1984 - 1 CR 743
7. Davy vs Spelthorne Borogh Council 1984 - A1 262 276
8. Vine vs. National Dock Labour Board - 1957 -A1 488
9. Ridge vs Baldwin - 1964 A1 40
10. Malloch vs Aberdeen Corporation - 1971 - 1 WLR 1578

Dr. Sunil Cooray with Shaminda Silva for petitioner
Nirmalan Wigneswaran SC for respondents.

Cur.adv.vult.

June 14, 2010.
SRISKANDARAJAH,J.

The Petitioner by this application has sought a writ of Certiorari and a writ of quao warranto to quash the appointment of the 13th Respondent as the Chief Internal Auditor of the 1st Respondent Corporation.

The Petitioner is presently working as an Assistant In

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