v.
CHAIRMAN, CEYLON FERTILIZER CORPORATION
Page 393
SUPREME COURT
JAMEEL, J.
FERNANDO,J.
AMERASINGHE, J.
S.C. APPLICATION No.7/88
NOVEMBER 9,11,22 AND 24, 1988 &
Fundamental Rights Cruel, inhuman or degrading
treatment or punishment Mental torture Freedom to engage in any
lawful occupation of one's choice Articles 11 and 14(1)(g) of the Constitution.
The first respondent was the Chairman of the Fertilizer Corporation and
the petitioner was the Secretary. The Fertilizer
Corporation had contracted with a foreign supplier for the supply of urea in
three deliveries. In September 1985 the supplier
requested that he be permitted to do the supply in two deliveries. The Purchase Review Committee of the Corporation
recommended the request subject to a reduction of one dollar per metric ton. Later a rebate of 50 US cents per metric ton was accepted
on a purported decision of the Board of 29.11.1985 of which the petitioner had
no record in the minutes. The petitioner's position
was that no such decision had been made. However at
the meeting of 29.4.86 the 1st respondent wanted the 'omission'
rectified. The petitioner agreed to make an amending
minute but refused to authenticate it with her signature. From
here began the eventual souring of relations between the petitioner and the
first respondent. The petitioner made a statement to
the C.I.D. Unit of the Presidential Commission about this and put the first
respondent under investigation. Subsequently the
petitioner was sent on compulsory leave. Later she was recalled with
effect from 01.01.1988 but she was not allowed the use of her old
cubicle or allocated any work. The treatment meted out
to her gradually deteriorated. She was made to sit in
the verandah at a broken table on a broken chair and even totally locked out
and life in the office was made humiliating for her and conditions became
intolerable. In respect of the treatment meted out to her
between 01.01.1988 to 19.01.1988 she complained to the Supreme Court that she
had been subjected to cruel, inhuman or degrading treatment or punishment in
violation of her fundamental rights under Article 11 and that she had been
denied continuity of employment and the freedom to be engaged in a lawful
occupation of her choice in violation of her fundamental rights under Article
14(1)(g).
Held:
1. While the treatment
meted out to the petitioner would undoubtedly amount to a grossly unfair labour
practice, it does not constitute torture or cruel, inhuman
or degrading treatment or punishment.
Per Amerasinghe, J. "In my view Article 11 of the
Constitution prohibits any act by which severe pain or suffering, whether
physical or mental, is, without lawful sanction in accordance with a procedure
established by law, intentionally inflicted on a person (whom I shall refer to
as the 'victim') by a public official acting in the discharge of his executive
or administrative duties or under colour of office, for such purposes as
obtaining from the victim or a third person a confession or information, such
information being actually or supposedly required for official purposes,
imposing a penalty upon the victim for an offence or breach of a rule he or a
third person has committed or is suspected of having committed, or intimidating
or coercing the victim or a third person to do or refrain from doing something
which the official concerned believes the victim or the third person ought to
do or refrain from doing, as the case may be.”
"Article 11 is a species belonging to a
certain genera. It belongs to that class which
protects life and personal freedom. It belongs to the
same family as the fundamental rights of freedom from arbitrary arrest,
detention and punishment and retroactive penal legislation.”
"Article 11 is not concerned with the
conduct of public officials in relation to such matters as one's contractual
rights in a place of work."
2. Article 14(1)(g) ensures the freedom to engage in any lawful occupation
of one's choice, but this provision does not extend to a right to be employed
by a particular master or in a particular place of work.
Article 14 confers the right to certain freedoms upon citizens of
Per Amerasinghe, J:
"That Article (Article 14(1)(g), recognizes the right of every citizen to
use his powers of body and mind in any lawful calling; to pursue any livelihood
and avocation. It confers no obligation to give any
particular kind of work or indeed any right to be continued in employment at
all.”
Cases referred to:
1. Elmore Perera v. Major
Montague Jayawickrema [1985] 1 Sri LR 285, 300, 301, 323
2. Wijeratne v. People's Bank [1984] 1 Sri LR 1
3. Roberts and another v.
Ratnayake and others [1986] 2 Sri LR 36, 45
4. Thadchanamoorthi
v. Attorney General and others (1980) 1 FRD 129, 140
5. Velmurugu
v. Attorney General and another (1981) 1 FRD 180, 215, 241
6. Jeganathan v. The Attorney General (1982) 2 FRD 257
7. Mariadas Raj v. The Attorney General (1983) 2 FRD 397
8. Vivienne Goonewardene v.
Perera (1983) 2 FRD 426
9. Kapugeekiyana v.
Hettiarachchi and two others [1984] 2 Sri LR 153
10. Amal Sudath Silva v. Kodituwakku [1987] 2 Sri LR 119
11. Saman v. Leeladasa et al
S.C. Application 4/88 S.C. Minutes of 12.12.1988.
12. Revis v. Smith (1856) 18 CB 126, 141
13. Marrinan v. Vibart [1963] 1 QB 234, 239
14. Eshugbayi v. Government of
15. The State of
16. Wijesinghe v. Attorney General (1984) 2 FRD 40
17. Wijetunge v. Aluwatuvala and others S.C. Application 89/84
S.C. Minutes of 30.10.84
18. Collier v. Sunday Referee Publishing Co Ltd [1940] 2 KB 647
19. Maybe v. George Edward Daily Theatre Ltd [1928] 1 KB 269
20. Herbert Clayton & Jack Waller Ltd v. Oliver [1930] AC 209
21. Hall v. British Essence Co Ltd (1946) 62 TLR 542
22. Titmus & Titmus v. Rose & Watts [1940] 1 All ER 599
23. Dunk v. George Watter & Sons Ltd [1970] 2 All ER 630 CA
24. Langston v. Amalgamated
25. Breach v. Epsylon Industries Ltd [1976] 1 CR 316
26. Turner v. Lawdon [1901] K B 153
27. Bosworth v. Angus Jowett & Co. Ltd. [1977] 1 RLR 374 EAT
28. R. P. Jayasena and others v. K. R. S. Soysa
and another (1980) 1 FR D 97, 102
Page 396
APPLICATION against
infringement of fundamental rights
M. A.
Mansoor with K. S. Tillekeratne for petitioner.
K. N. Choksy, PC with Rohitha
Bogollagama and Nihal Fernando for
1st and 2nd respondents.
Shibly Aziz, PC, Additional Solicitor General 3rd
respondent
Cur. adv.
vult.
JAMEEL, J.
The Petitioner joined
the Ceylon Fertilizer Corporation (the 2nd Respondent) in 1969, as a
clerk. In April 1981, when Noel Fernando, the
Secretary to the Board, went on overseas leave, the Petitioner was appointed
Secretary to the Board and Personal Assistant to the Chairman.
The Secretary to the relevant Ministry and the Attorney General have been made parties to this application for the purpose
of giving them notice.
The Petitioner's grievance
relates to the treatment meted out to her in consequence of statements made by
her in February 1987 to the C.I.D. Unit of the Special Presidential Commission
of Inquiry concerning a rebate obtained by the Corporation in late 1985 in
respect of a contract for the supply of 35,000 m.t. of urea by Petrochemical
Industries Ltd of Kuwait ("the supplier").
In January 1985, soon after the 1st
Respondent assumed office as Chairman, the Petitioner informed him of her
grievance relating to a decision of the former Chairman that she had to account
to another officer in respect of payments for telex bills. The
1st Respondent took prompt action to redress this grievance. In October 1986, the Board acceded to her request that her
post be upgraded, as "she shoulders high responsibility". I mention these two matters as they indicate that, upto
October 1986, the Chairman and the Board had no reservations about the
Petitioner's work, and did not have any animus against her.
In September 1985, the supplier requested that
it be permitted to advance the deliveries under the contract, and in two
shipments instead of three as stipulated. The Purchase
Review Committee of the Corporation considered, and favourably recommended this
request, subject to a price reduction of US $ 1 per m.t. It
appears that this figure was intended to cover the
estimated additional costs
of warehousing and storage. The Board approved,
the Ministry was informed, and a letter was written to the supplier on this
basis. Advance delivery was made, but there was no
reply to that letter, until the local agents of the supplier wrote on 21.11.85. That letter "confirmed" the discussion between
the principal and Corporation officials, including the 1st
Respondent, and while acknowledging that it was the supplier's problems that
rendered it necessary to advance the deliveries, asserted that the arrangement
was even more beneficial to the Corporation; and suggested a price reduction of
US $ 10000.
That letter bears the date stamp of the Purchasing Division of the
Corporation, indicating that it was received in that Division on 3.12.85;
Counsel for the Petitioner has expressly stated that this is not challenged. It bears an endorsement, dated 2.12.85, admittedly made by
the 1st Respondent to the Purchasing Manager, "Board approved
50% recovery. PI. get this
expedited". It is thus clear that the 1st
Respondent had received this letter not later than 3.12.85. There
is nothing to indicate how and when the supplier agreed to advance his offer
from US $ 10,000 to US $ 17,500, and there must have been some communication
between the parties of which we are unaware. In fact,
the refund ultimately received by the Corporation was the rupee equivalent of
US $ 17,500 (or US $ 0.50 per m.t.). The existence of
this letter came to the knowledge of the Petitioner, she says, only in or about
April 1986 when the Auditors queried the quantum of the price reduction, for
which they could find no Board authority. Having made
a search, she failed to find any Board decision, whereupon the Auditors had
given her the date 29.11.85 and informed her of the existence of this letter in
the Purchasing Division. The Board meeting immediately
prior to 2.12.85 was that held on 29.11.85, and neither the agenda nor the
minutes of that meeting made any reference to this letter or that subject matter;
nor has any reference been made thereto when the minutes of that meeting were
confirmed at the subsequent meeting. She says that the
1st Respondent then dictated a statement for submission by her at
the Board meeting of 29.4.86, which she refused to sign; that document was
typed, but not signed, by her, and was treated as a Board paper; this was
discussed, and the Board recorded that by inadvertence the decision in regard
to this letter had not been minuted, and proceeded to make a full record of
that decision. This constitutes the casus belli in this case: was that decision in fact taken
on 29.11.85, and an inadvertent omission in the minutes rectified on
29.4.86, or was such a decision not
taken, and were the proceedings of 29.4.86 no more than a cover up, with
the Petitioner as the unfortunate scapegoat?
However, the relationship between the
Petitioner and the 1st Respondent apparently continued to be cordial
until about October 1986 when her post was upgraded. Learned
President's Counsel for the 1st and 2nd Respondents
relied heavily on this circumstance as justifying the inference that what
occurred on 29.4.86 was merely the rectification of an omission. However, this is not conclusive, for it is equally
possible that the Petitioner was an unwilling participant or perhaps,
spectator insofar as the events of 29.4.86 were concerned, having only
discharged the stenographic function of recording the minute without involving
herself in an admission as to its truth; and through concern for her
livelihood, refrained from stirring up controversy. On
that view, upgrading her post could be the reward for acquiescence.
A Commission had been appointed, by the
Minister in charge of the Corporation, to inquire into various irregularities
alleged against the 1st Respondent, and in October 1986 the
Petitioner testified inter alia about
this price reduction. She also made a statement to the
C.I.D. Unit of the Special Presidential Commission of Inquiry on 18.2.87. At a Board meeting held on 19.2.87, the Petitioner's
omission (in April 1986) to sign the statement acknowledging her responsibility
for the 'incorrect" minute was again referred to, and upon her continued
refusal to take responsibility, she was asked to leave the Board room, and
recalled about two hours later to take down the minutes. At
the next Board meeting held on 25.2.87, the Board took the view that she had
become a tool in the hands of persons conspiring to make allegations against
the 1st Respondent and the Board, and decided that they lacked
confidence in her, and placed her on compulsory leave pending inquiry. Thereafter, charges were levelled against the 1st
Respondent by the Special Presidential Commision; these were not inquired into,
as the proceedings of that Commission terminated in December that year. (However, the Shipping Manager of the Corporation had been
dealt with, by this Court, for contempt of that Commission, by
reason of his having attempted to dissuade the Petitioner from giving
evidence before that Commission.)
Page 399
On 23.12.87, the Board of the Corporation
resolved to recall her to work on 1.1.88, and to take disciplinary action in
respect of the matters which led to her being placed on compulsory leave. A letter recalling her was served on her at
The 1st Respondent's conduct in
relation to the price reduction and the letter of 21.11.85 would properly have
been a matter for inquiry by the aforesaid Commission. However,
extensive oral and written submissions have been made on that topic, as the 1st
Respondent's conduct towards the Petitioner is alleged to have been influenced
thereby. There appear to be two possibilities:
1. That letter was in fact tabled at the Board meeting, and a decision was
taken:
2. That letter was not
tabled, a price reduction not discussed, and the smaller, price reduction was
only duly approved in April 1986; the 1st Respondent, decided upon
the smaller price reduction prior to 3.12.85, without formal Board approval;
If the letter was formally tabled at the Board
meeting, it should have been handed to the Petitioner for the purpose of her secretarial
duties; instead, it appears to have been retained by the 1st
Respondent over the intervening weekend, and sent to the Purchasing
Manager on Monday (2.12.85). The Petitioner's version
that this letter did not then come to her notice thus seems more plausible,
despite the affidavits of other Directors that the 1st Respondent
"submitted" this letter. It may well be that
the 1st Respondent made a passing reference to the contents of the
letter, and without discussion obtained approval for the smaller price
reduction. On the material available to us, it does
not seem probable that the letter was tabled and that a full discussion took
place. While no finding on that matter is necessary,
it is important to stress that the omission in the minutes is not the lapse of
the Petitioner: since admittedly the letter was not handed to her at any stage. The subsequent events have thus to be viewed on the basis
that there was a lapse or irregularity on the part of the 1st
Respondent, and not the Petitioner; and that there appear to have been some
matters fit for inquiry by the aforesaid Commission.
In that background,
thereafter the Petitioner refused to accept responsibility for the omission;
this was not fatal, because the Board minute of 29.4.86 was sufficient for the
audit query. Her subsequent conduct between October
and February 1987 would inevitably have caused alarm to the 1st
Respondent; her insistence that there had been no Board decision on 29.11.85
could have had serious consequences.
While a host of minor irritants have been dealt with by learned Counsel
for the Petitioner, the real issue in this case is whether the treatment meted
out to her between 1.1.88 and 19.1.88 (when this petition was filed)
constitutes a violation of her fundamental rights. All
the other matters relate to quite different periods, and are relevant only to
support Counsel's submission that the 1st Respondent entertained a
personal animus against the Petitioner; arising from the 1st
Respondent's lapse, or irregular conduct, in regard to the price reduction, and
the Petitioner's refusal to accept responsibility therefor.
It is clear that the Petitioner has been
degraded and humiliated, by being made to mope in front of her colleagues and
subordinates, isolated on a verandah, and at times locked out, even without her
broken chair. She would naturally view this as the
culmination of a course of conduct commencing in February 1987, after her
statement to the C.I.D. While this treatment would
undoubtedly amount to a
Page 401
grossly unfair labour practice, it does not constitute "torture, or
cruel, inhuman or degrading treatment or punishment"; the acts complained
of are clearly not ‘torture" or "punishment"; they fall far
short of the degree of mental or physical coercisiveness or viciousness
required to constitute "cruel, inhuman or degrading treatment". This Court when considering the Essential Public Services
Bill (Decisions of the Supreme Court on Parliamentary Bills, 1978 1983,
page 65) rejected the contention that Article 11 is confined to "some
wrongful and wicked application of physical force"; a mandatory forfeiture
of all property and removal from the register of any profession, regardless of
the nature of the offence and the degree of blameworthiness, was held to be a
cruel and inhuman punishment and thus unconstitutional, but permissible if left
to the discretion of a Court. Thus ill treatment
per se, whether physical or mental, is not enough; a very high degree of mal treatment
is required.
It was further contended that, insofar as it
was linked to her occupation, this treatment was in violation of her
fundamental right under Article 14(1)(g); that she had a right to continuity of
employment, and that the 1st Respondent was attempting to coerce her
to leave the Corporation. Article 14(1)(g) ensures the
freedom to engage in any lawful occupation of one's choice, but this provision
does not extend to a right to be employed by a particular master or in a
particular place of work. In Elmore Perera's case (1) Sharvananda, C.J., expressed
the opinion (semble)
"Article 14(1)(g) recognises a general
right in every citizen to do work of a particular kind and of his choice. It does not confer the right to hold a particular job or
to occupy a particular post of one's choice. The
compulsory retirement complained of, may, at the highest affect his particular
employment, but it does not affect his right to work as a Surveyor."
Hence there is no infringement of the fundamental right under Article
14(1)(g).
Learned President's Counsel has submitted that the Corporation is a trading Corporation which imports, mixes and sells fertilizer, in competition with several other public and private organisations; and that the acts of the Corporation do not constitute executive or administrative action. In Wijeratne v. People's Bank (2), a security officer was placed in a lower grade, after a re organisation; he was
employed in connection with the commercial activities of the Bank, and
not in connection with any State activity. It was held
that the application was not maintainable as there was no infringement by
"executive or administrative action". Here,
too, the Petitioner has failed to establish that the conduct complained of
falls within that description.
All the grievances of the Petitioner, including
non payment of increments and other dues, if established, would
constitute violations of her contract of employment;
as was observed in Roberts' case (3)
"where the rights
and obligations of the parties to such contract fall to be determined by the
ordinary law of contract, then the provisions of Article 12(1) of the
Constitution have no application, and cannot be invoked."
I would accordingly dismiss this application,
but having regard to all the circumstances, without costs.
FERNANDO, J. I agree with the judgments of my brothers Jameel, J., and
Amerasinghe, J.
AMERASINGHE, J.
The delay in arriving
at a decision in this case was due to the unfortunate fact that learned Counsel
for the Petitioner, troubled as he was by illness, was constrained to request a
postponement of the oral hearing from 24 November to 12 December. Although he undertook to complete his submissions in
writing by
I have had the advantage of reading the
judgment of my brother Jameel, J. and I entirely agree with his comprehensive
statement of the facts. I am also in, agreement with
his conclusion that the Petitioner's application should be dismissed on account
of her failure to establish that her fundamental rights under Articles 11,12 and 14 have been violated, but that, in the special
circumstances of this case, this Application should be dismissed without costs.
Article 11 of the Constitution guarantees
freedom from torture, cruel, inhuman or degrading treatment or punishment. The words of
the Constitution are in terms indentical to those in Article 5 of the
Universal Declaration of Human Rights which was adopted by the General Assembly
of the United Nations on
There are several decisions of this Court arising out of applications
for relief based upon the violation or alleged violation of the fundamental
right to be free from torture, or cruel, inhuman or degrading treatment or
punishment. (E.g. see Thadchanamoorthi v. Attorney General and Others (4);
Velmurugu v. Attorney General and
another (5); Jeganathan v. The Attorney General (6); Mariadas Raj v. The
Attorney General (7); Vivienne
Goonewardene v. Perera (8); Kapugeekiyana
v. Hettiarachchi and two others (9); Amal Sudath Silva v. Kodituwakku (10) and A. S. Saman v. Leeladasa et al. (11).
The acts in question in those cases were all done by law enforcement
officers of the State including members of the defence services who, in the
special circumstances of the times, were engaged in law enforcement in addition
to the task of the defence of the Republic. They were
all cases in which physical violence formed the basis of the complaint. In the application before us, however, the alleged cruel,
inhuman or degrading treatment or punishment complained of is psychical in
nature. It is, therefore, a novel claim for relief and
it may raise a presumption against its validity. We
may remark that the world has gone on very well without applications such as
this and we doubt whether it would continue to do so if such things were
allowed. (Cf. per Creswell, J. in Revis v. Smith (12), followed with approval in Marrinan v. Vibart (13). Yet, this Court undoubtedly has power to recognize a novel
claim if justice so requires. We shall not shrink from
doing our duty to advance fundamental rights as we are required to do by
Article 4(d) of the Constitution. (Cf. Eshugbayi vs. Government of
I am of the opinion that the torture or cruel,
inhuman or degrading treatment or punishment contemplated in Article 11 of our
Constitution is not confined to the realm of physical violence. It would embrace the sphere of the soul or mind as well. Lord Denning in
Freedom Under the Law. The
Hamlyn Lectures, 1949 at p. 26, after stating that torture is "usually for
the sake of getting people to confess their guilt or to implicate others",
goes on to say as follows:
"Brutality is not used today but some
other means not known to us is used. Take the cases of
Cardinal Mindzenty and Mr. Rajk. Those men actually
made full confessions in open court with all appearance of telling the truth. Yet most people outside the concerned countries think that
they have been induced by some means or other to say what is untrue. The most credible theory'. says The Times, is that Soviet Psychologists
have perfected methods of mental aggression which can be applied with success
to a great variety of victims ....' The same method,
with suitable variation in approach might be applied to a Communist Cabinet
Minister and a Catholic Cardinal."
The fact that mental aggression should be
looked upon in the same manner as we contemplate physical attack is supported
by Resolution 3452 (XXX) which was adopted by the General Assembly of the
United Nations at its 30th session in 1975. The
Resolution states as follows in Article 1:
“1. For
the purpose of this Declaration, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted by or at the
instigation of a public official on a person for such purposes as obtaining
from him or a third person information or confession, punishing him for an act
he has committed, or intimidating him or other persons. It
does not include pain or suffering arising only from, inherent or incidental
to, lawful sanctions to the extent consistent with the Standard Minimum Rules
for the Treatment of Prisoners.
2. Torture
constitutes an aggravated and deliberate form of cruel, inhuman
or degrading treatment or punishment."
Ralph Beddard in his book, Human Rights and Europe, Second Edition, 1980 at p. 102 says that
"inhuman treatment" was defined by the European Commission of Human
Rights in, what is popularly known in this country see Thadchanamoorthi v. Attorney General
(4), Velmurugu v. A.G.&
Others (5), as we as elsewhere as, "the Greek case",
"as an aggravated form of inhuman
treatment which treatment or punishment may be said to be degrading if it
grossly humiliates the individual before others or drives him to act against
his will or conscience."
In my view Article 11 of the Constitution
prohibits any act by which severe pain or suffering, whether physical or mental
is, without lawful sanction in accordance with a procedure established by law,
intentionally inflicted on a person (whom I shall refer to as ‘the victim’) by
a public official acting in the discharge of his executive or administrative
duties or under colour of office, for such purposes as obtaining from the
victim or a third person a confession or information, such information being
actually or supposedly required for official purposes, imposing a penalty upon
the victim for an offence or breach or a rule he or a third person has
committed or is suspected of having committed, or intimidating or coercing the
victim or a third person to do or refrain from doing something which the
official concerned believes the victim or the third person ought to do or
refrain from doing, as the case may be.
I do not think that the facts of this case fall within the terms of the
prohibitions contained in Article 11 of the Constitution. Mr.
Mansoor's impassioned and eloquent description in terms of the cause and
consequence as far as the facts of this case were concerned, appears to me to
have been designed to excite and gratify our softer emotions.
However he failed to pursuade me by way of logical argument or by
reference to a single precedent laid down by this Court or any other tribunal
or by reference to any international convention or document or any other guide
whatsoever that the Petitioner had, in the relevant sense, been subjected to
torture or cruel, inhuman or degrading treatment or punishment. Sentiment is an inadequate guide to decision. The Petitioner may have suffered a great deal of anguish
as a result of the acts of the First Respondent, but it has not been established
that his conduct was motivated by the sort of reason that would bring the case
within the ambit of Article 11 of the Constitution. Learned
Counsel for the Petitioner claimed that the acts complained of were inflicted by way of a "punishment" for the
reason that the Petitioner gave such information and assistance
Page 406
to certain investigators which might have implicated the First
Respondent in a charge of improper behaviour before the Special Presidential
Commission. There was no punishment in the sense
relevant to Article 11, namely, the imposition of a penalty for an offence or
breach of a rule or supposed offence or breach of a rule. He
may have been taking vengeance on account of the feelings of pain, distress and
intense disappointment caused to him by the conduct of the Petitioner whose
personal loyalty he seemed to have expected to even transcend the higher
obligations she owed the State. However, these
expressions of resentment did not constitute punishment in the sense in which
the word is used in Article 11 of the Constitution.
Article 11 is a species belonging to a certain genera.
It belongs to that class which protects life and personal freedom. It belongs to the same family as the fundamental rights of
freedom from arbitrary arrest, detention and punishment and retroactive penal
legislation. (See Article 13 of the Constitution. Cf. The
International Bill of Rights. Normative and
Institutional Developments, 1948 1985, UNESCO, 1986, Chapter 5. cf. also Lord Denning, Freedom
Under the Law, supra, Chapter I).
Article 11 is not concerned with the conduct of
public officials in relation to such matters as one's contractual rights in a
place of work. There may well have been, as submitted
by learned Counsel for the Petitioner, such intolerable conduct by the First
Respondent which made her contract of employment so difficult that a
repudiation of her contract might have been justified. He
laid a mass of evidence before us to support his contention that there was
enough to sustain his claim that the Petitioner was compelled to go and that
she was constructively dismissed. However, such
evidence is not sufficient to establish a violation of the Petitioner's
fundamental rights under Article 11. In my view the Petitioner formed a wrong idea that redress, if
any, due to her for the constructive dismissal she supposed, should be obtained
from this Court by an application for relief under Article 126 of the
Constitution for the violation of a fundamental right.
Learned Counsel for the Petitioner claimed that
the Petitioner's fundamental right to equality before the law and equal
protection of the law pledged by Article 12(1) of the Constitution had been
violated because the First Respondent had acted in breach of the law relating
to the Petitioner's contract of employment resulting in the constructive
termination of her employment. It is well established
law that it is not every breach of a legal right that amounts to a violation of
the constitutional pledge of equal protection. (E.g.
see The State of Jammu and Kashmir v.
Ghulam Rasool (15); Wijesinghe
v. Attorney General (16); Wijetunge v. Aluwatuvala and Others (17); Elmore Perera v. Major Montague Jayawickreme
(1). The first Respondent, he argued,
had violated the provisions of Article 12(1) by preferring Noel Fernando to the
Petitioner in the matter of the appointment of a Secretary to the Board of
Directors. The Petitioner was appointed to the post of
Secretary when Noel Fernando went overseas on long leave. The
Board had decided to create a Post of Secretary/Legal Officer.
Neither the Petitioner nor Noel Fernando possessed Legal qualifications
and Noel Fernando was appointed during the Petitioner's absence on compulsory
leave to perform the duties of Secretary which he had done prior to his
departure. When the Petitioner returned after her
period of compulsory leave was terminated, Noel Fernando continued to act as
Secretary to the Board. This, learned Counsel for the
Petitioner maintained, was unjust and unfair as far as his client was concerned. The Petitioner failed to discharge the burden that was
upon her of showing how she had been discriminated against in the sense that
she was subjected to unequal and selective treatment and I am of the opinion
that the Petitioner has therefore failed to establish any violation of her
fundamental right to equality of treatment. (See Elmore Perera v. Major Montague Jayawickrema
(1) supra, at pages 300 301).
Learned Counsel for the Petitioner, repeatedly
referred to the fact that the Petitioner, although recalled to employment from
interdiction, had not been assigned any work whatsoever. This
he claimed, was a violation of the Petitioner's fundamental right guaranteed by
Article 14(1) (g) which recognizes that every citizen is entitled to "the
freedom to engage by himself or in association with
others in any lawful occupation, profession, trade, business or
enterprise."
Article 14 confers the right to certain freedoms upon citizens of
establish that the right claimed was (a) a legal right and that (b) it
is a fundamental right. (cf. H.M. Seervai, Constitutional Law of India 2nd
Edn., 1975, Vol. 1, at p. 450).
There is no evidence in the matter before us
that the Petitioner was prevented in any way from engaging in any lawful
occupation, profession, trade, business or enterprise. The
complaint was that the Petitioner was frustrated because she had
not been assigned any work at all although she was paid her due wages.
Perhaps there is a moral right to earn one's
living and to enjoy the warm glow of satisfaction that visits a conscientious
soul at the end of a day of honest endeavour. "Never
one of you have eaten better food than that which he has earned with his own
hands," says the Holy Prophet Mohamed. (See Ali
Abdul Wahid Wafi in The Problems of Human
Rights in the Islamic Tradition, Round Table Meeting on Human Rights,
Oxford, 11 19 November, 1965, UNESCO Human Rights Teaching, Vol. IV, 1985
at p. 39). Whether an employer's legal duty is to
provide wages as well as work is an uncertain matter. (E.g.
see Collier v. Sunday Referee Publishing
Co. Ltd. (18); Marbe v.
George Edwardes, Daily Theatre Ltd (19); Herbert Clayton & Jack Waller Ltd. v. Oliver (20); Hall v. British Essence Co. Ltd. (21);
Titmus and Titmus v. Rose and Watts (22);
Dunk v. George Watter & Sons Ltd (23);
Langston v. Amalgamated Union of
Engineering Workers (24); Breach
v. Epsylon Industries Ltd. (25); Turner v. Lawdon (26) and Bosworth v. Angus Jowett & Co. Ltd. (27). If there is no legal duty on an employer to provide work,
there can be no corresponding legal right to work.
Even if I were prepared to go so far as to hold
that the Petitioner was, by reason of an implication in her contract of
employment, entitled to claim a legal right to work, in the sense that she has
a right to have the opportunity of doing work when it is there to be done, I am
unable to agree with learned Counsel for the Petitioner that the failure to
provide the Petitioner with work violates any right guaranteed by Article
14(1)(g) of the Constitution. That Article recognizes
the right of every citizen to use his powers of body and mind in any lawful
calling; to pursue any lawful livelihood and avocation. It
confers no obligation to give any particular kind of work or indeed any right
to be continued in employment at all. (cf. per Ismail,
Weeraratne and Wanasundera, JJ. in R.P.Jayasena
& Others
Page 409
v. K.R.S. Soysa and Another (28). There may have been a breach of a contractual
right in regard to which a complaint may have been successfully made to another
forum it is a matter on which I do not wish to make any observations in
this case but there has been no breach of a fundamental right conferred
by Article 14(1)(g), namely the right to pursue any lawful livelihood or
avocation, and, consequently, I hold that the Petitioner is not entitled to any
relief for a violation of Article 14(1)(g) of the Constitution.
The Petitioner has, with remarkable courage in pain and adversity, remained
in her employment and endeavoured to restore a desired or desirable state of
circumstances relating to her employment by lawful means. With
some reluctance, therefore, but with no doubt that she has misconceived the
remedies available to her under the law, I declare that the Petitioner's rights
under Article 11,12(1) and 14(1)(g) have not been violated and consequently I
make order dismissing the application of the Petitioner but without costs.
Application dismissed.