LANKA VIDULI PODU SEVAKA SANGAMAYA VS. CEYLON ELECTRICITY BOARD - HON. MAHINDA SAMAYAWARDHENA, J

• Jurisdiction: Sri Lanka
• Case Number: 2019SCOA193C2015Y
• Citation: 2019SCOA193C2015Y
• Date: 02 April 2019
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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Lanka Viduli Podu Sevaka Sangamaya

Vs.

Ceylon Electricity Board - Hon. Mahinda Samayawardhena, J

CASE NO: CA/WRIT/193/2015

Lanka Viduli Podu Sevaka Sangamaya,
No. 50, Sir Chittampalam A. Gardiner
Mawatha, Colombo 2.

Petitioner
Vs.

1. Ceylon Electricity Board,
No. 50,
Sir Chittampalam A. Gardiner
Mawatha, Colombo 2.

And 37 Others

Respondents

Before : Mahinda Samayawardhena, J.

Counsel : Indunil Bandara for the Petitioner.
Sanjeeva Jayawardena, P.C., with Charitha Rupesinghe for the 1st, 4th-7th, 9th-11th Respondents.

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Faisz Musthapha, P.C., with Thushani Machado for the 12th Respondent.
Shantha Jayawardena with Niranjan Arulpragasam for the 13th Respondent.
Chaya Sri Nammuni, S.S.C., for the 2nd, 3rd, 36th-38th Respondents.

Decided on : 02.04.2019

Samayawardhena, J.

1. Introduction

The petitioner Trade Union filed this application against the Ceylon Electricity Board (CEB) seeking to quash by way of certiorari the decision contained in the Circular No. 2014/GM/46/Pers dated 27.11.2014 marked P11 whereby a category known as "Unified Engineering Service" was created and a special salary scale known as "E Salary Scale" was introduced for the Engineers and Engineering Assistants in the CEB. The petitioner says that this is unmistakably illegal and arbitrary, which created a great salary anomaly between the Engineering employees and the other employees of the CEB gravely endangering industrial peace.

The 1st respondent CEB and the other respondent Trade Unions supporting the Engineers filed objections and tendered written submissions against the petitioner's application. The remaining respondents including Ministers of Power and Energy, Finance, and National Pay Commission filed objections and tendered written submissions, in support of the petitioner's application.

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2. Merits of the Application

The learned President's Counsel appearing for the contesting respondents took up several preliminary objections seeking dismissal of the application in limine without going into the merits. To understand the said preliminary objections in the proper perspective, it is necessary to know the facts of the case. Hence I decide to consider the merits of the application first.

2.1. The Crucial Board Meeting of CEB on 26.11.2014

A Board Meeting of the Ceylon Electricity Board was held on 26.11.2014 at 4.00 pm-vide P5. The Minutes of this Board Meeting is crucial to decide this matter. The said Minutes under the heading "PROGRESS OF THE PROPOSED COLLECTIVE AGREEMENT AND THE SALARY INCREASE FOR THE EMPLOYEES OF THE CEB" read as follows:

Before the commencement of the formal proceedings of the meeting the Chairman brought to the notice of the meeting the present position of the progress of the proposed Collective Agreement and the salary increase for the employees of the CEB. He appraised the Board that he continued to further negotiated settlement on the proposed Collective Agreement and the salary increase.

After extensive negotiations with the Trade Unions at several occasions the Management was able to get the consent of most of the Trade Unions for a salary increase of 30% and to retain LKR 1,000/= monthly allowance which is being paid for the last several years. The committee has also proposed to increase the annual bonus of 1 month salary by 50% (1 ½ months salary) with effect from January 01, 2015 for the next 3 years.

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The Board after careful consideration of the contents of the proposed Collective Agreement and 30% increase of salary and the proposed bonus decided to consider them favourably as against the following.

(1) Improvement of overall efficiency and enhancement of productivity of services by the employees arising out the proposed salary increase.

(ii) Financial position of the CEB during the coming 3 years will be satisfactory due to low expenditure resulting from the low cost generation through coal power and improved hydro situation.

(iii) Adoption of performance appraisal scheme within the organization has been improved and will continue to maintain a higher standard of customer service.

(iv) Entering into Collective Agreement at least with a limited scope is a remarkable achievement in maintaining the industrial peace within the CEB during the next 3 year
period.

In view of the above the Board decided to accept the proposed Collective Agreement which includes the above mentioned salary and bonus increase and recommend to the Secretary/Ministry of Power and Energy, Secretary/Ministry of Finance and Planning and the Cabinet of Ministers for approval.

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The following can be deducible from the above Minutes:

a) There shall be a consensus between the Board and the Trade Unions for a salary hike, which shall be included in the Collective Agreement to maintain industrial peace within the CEB (which happens one in three years), and;

b) If there is such a consensus, for it to take effect, the approvals from the Secretary/Ministry of Power and Energy, Secretary/Ministry of Finance and Planning, and the Cabinet of Ministers are necessary.

Further, according to the said Minutes, "the Committee" has proposed salary increase of 30%, retaining of LKR 1,000/= monthly allowance and increasement of annual bonus by 50%, with effect from 01.01.2015-31.12.2017.

This has been incorporated in the Collective Agreement marked P6 signed on 01.12.2014 for the period 01.01.2015-31.12.2017 between the CEB and the Trade Unions of the CEB including the petitioner.

What is "the Committee" above referred to? That is the "Committee on Salary Revision of CEB Employees-2015" appointed by the Chairman of the CEB comprising of five Members, as per 1R9, to consider "Next salary revision due from 01st of January 2015", which "need to be processed through the proposed Collective Agreement." Professor Perera, Vice Chairman of the CEB has been appointed as the Chairman of the Committee.

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2.2. Unusual Decisions soon after the Main Decision

After the said decisions (subject to the approvals) by the Board inter alia for 30% salary increase across the board effective from 01.01.2015 for the next three years, the Minutes of the same day, under the heading "UNIFIED SERVICES IN THE CEB", read as follows:

During the discussion Chairman sought instructions from the Secretary, Ministry of Power and Energy with regard to Engineering Scale issue and in response Secretary, Ministry of Power and Energy advised that this request may be considered positively and requested the Board to consider setting up a Unified Service for Technical, Financial IT and other professional grades and further requested the Vice Chairman to submit a report on this matter based on his committee report dated November 18, 2014, urgently.

Accordingly, an addendum to the committee report was submitted to the Board by the Chairman of the committee Prof. K.K.C.K. Perera, Vice Chairman, before the Board Meeting was adjourned for the day. The Board considered the contents of the addendum along with the committee report submitted to the Board on November 18, 2014 and requested the GM to issue the necessary circular instructions accordingly as recommended in the addendum dated November 26, 2014 submitted by the Vice Chairman and directed the Vice Chairman to submit further proposal with regard to other professional services as well.

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The "Committee Report" above referred to is the Report of the "Committee on Salary Revision of CEB Employees-2015" marked 1R10, and "Addendum" is 1R11.

It is noteworthy that in the said Committee Report 1R10, the proposed "E Salary Scale" by the Engineers' Union has neither been recommended nor approved but only accepted as a policy. In Annexure 6 thereof, it is particularly mentioned that, the proposed "E Salary Scale" for the Engineers is a matter to be considered separately, and it is beyond their mandate to make recommendations on the "E Salary Scale".

In the first place, I must say that, soon after the Board decided to accept the proposed Collective Agreement for 01.01.2015- 31.12.2017 (P6), which included the 30% salary increase across the board subject to the approval of the Secretary/Ministry of Power and Energy, Secretary/Ministry of Finance and Planning, and the Cabinet of Ministers, the Board cannot, immediately thereafter, and out of the blue, hurriedly formulate another salary revision for the Engineers. That is plainly ultra vires.

According the said Minutes under the heading "UNIFIED SERVICES IN THE CEB", the following very unusual things have happened in the Board Room while the Board Meeting in progress.

a) The Chairman of the Board has taken instructions, "During the discussion" at the Board Meeting, from the Secretary of the Ministry of Power and Energy regarding Engineering Salary Scale issue.

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It may be noted that, according to the Minutes, Board Meeting started late in the evening at 4.00 pm, and this has happened- presumably at night, after main business of the Board Meeting under the heading "PROGRESS OF THE PROPOSED COLLECTIVE AGREEMENT AND THE SALARY INCREASE FOR THE EMPLOYEES OF THE CEB" was over.

b) The Vice Chairman of the CEB (who was the Chairman of the "Committee on Salary Revision of CEB Employees- 2015") has been asked to submit a Report on the Engineering Salary Scale "urgently". The Vice Chairman also would have been attending the Board Meeting.

c) Then the Vice Chairman has, in a great hurry, prepared the addendum 1R11 recommending a separate salary scale known as "E Salary Scale" for Engineers and Engineering Assistants "before the Board Meeting was adjourned for the day"! That means, without consulting the other Members of the Committee.

It may be recalled that this Committee was appointed to consider "Next salary revision due from 01st of January 2015" for the next three years, and the Committee had already by their Report 1R10 has informed the Board that the proposed "E Salary Scale" for the Engineers is a matter to be considered...