Kulatunge V. The Board Of Directors Of The Co Operative Wholesale Establishment

1963       Present: Sansoni, J., and H. N. G. Fernando, J.

L. KULATUNGE, Petitioner, and THE BOARD OF DIRECTORS
OF THE CO-OPERATIVE WHOLESALE ESTABLISHMENT
and another, Respondents

S. C. 326/63-Application for a Mandate in the nature of a Writ of
Certiorari under Section 42 of the Courts Ordinance

Certiorari-Employer and employee-Appointments and dismissals-Dismissal of persons holding office at pleasure-Employee of a statutory body-Right of employer to terminate an employee's service without holding an inquiry- Natural justice-Principle of audi alteram partem-Co-operative Wholesale Establishment Act (Cap. 126), s. 11-Interpretation Ordinance, s. 14 (1).

     Where a statutory body is merely given a power to dismiss a member of its staff, without any specification of the grounds of dismissal and/or of the procedure to be followed prior to dismissal, that body is not bound to act judicially in reaching its decision. In such a case, therefore, the dismissed employee is debarred from obtaining a writ of Certiorari.

      " The principle audi alteram partem must be observed in cases of dismissal only where the power of dismissal is limited in one of two modes, that is to say, where the procedure prior to the act of dismissal is prescribed and requires notice of the charges and an inquiry, or where the grounds for dismissal are specified. In this latter instance, the dismissing authority must, before deciding that a specified ground of dismissal in fact exists, consider what the officer concerned has to say in his defence ; in other words, the duty to act in a judicial manner arises by implication from the specification of the grounds for dismissal. "

     On the 21st March, 1963, the petitioner was appointed to the staff of the Co-operative Wholesale Establishment in terms of section 11 of Act No. 47 of 1949 (Cap. 126). The letter of appointment issued to him provided that his employment would be terminable on one month's notice on either side or on payment of a month's salary in lieu of notice. On the 22nd June, 1963, the Board of Directors of the establishment terminated his employment stating that it was not possible to continue him in service because he had been found guilty by the Bribery Commission which made its report in June, 1949. In the present application for a writ of certiorari to quash the order of dismissal the petitioner submitted that the Board acted in breach of the rules of Natural Justice in that the Board did not afford to the petitioner an opportunity of defending himself or of showing cause against his dismissal.

     Held, that the Board, in the absence of any express provision in the statute (Cap. 126) specifying either the grounds of dismissal or the procedure to be followed prior to a decision to dismiss, had no duty to inform the petitioner of the grounds of his dismissal or to give the petitioner an opportunity of being heard, or to act judicially in reaching its decision.

APPLICATION for a writ of certiorari against the Board of Directors and General Manager of the Co-operative Wholesale Establishment.

                      M. Tiruchelvam, Q.C., with B. J. Fernando, for the Petitioner.

                      H. L. de Silva, Crown Counsel, for the Respondents.

Cur. adv. vult.

December 2, 1963. H. N. G. FERNANDO, J.-

     The Petitioner was on 21st March 1963, appointed to the staff of the Co-operative Wholesale Establishment constituted under Act No. 47 of 1949 (Cap. 126). On the 22nd June 1963, the Board of Directors of the Establishment wrote to the Petitioner informing him that his appointment (as Security Officer in the Establishment) is terminated with effect from the same date. In this letter, the Petitioner was informed that it was not possible to continue him in service because he had been found guilty by the Bribery Commission, meaning thereby the Keune

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