Air Lanka ltdNARRATOR: Air Lanka Ltd.
V. Air Lanka Ltd. Others
AMERASINGHE, J. WIYETUNGA, J. S.C. APPLICATION NO 275/93." Furthermore, it was Air Lanka's declared aim to fill such positions with in-house applicants as far as possible. However, the petitioner was not only refused his promotions, but was also convicted in these trials by the company directors, who took measures to create a body with the aim of encouraging him.
Accusations of miscompetence, incompetence and irresponsibility against the petitioner are unfounded. This petitioner had a justified expectations of being named International Relations Manager. First respondent had a justified interest and a general obligation to ensure that the best nominee was nominated. Saviour proceedings and rules were completely ignored and the thirteenth defendant was nominated for grounds unconnected rationally with the purpose of nominating the best skilled individual.
Therefore, the petitioner was not only unevenly dealt with, but also aggressively subjected to discrimination. Air Lanka had no job advertisement for which the thirteenth respondent could have applied. Appointed International Relations Manager in a manner other than through the accepted process for such appointment.
Interviewee 13 did not meet the fundamental conditions required for nomination as a manager, grade M.1. That nomination was dependent on the violation of the petitioner's right to equal rights under the Constitution by proving that he was inappropriately biased in relation to the thirteenth amendment of the Constitution. Do not hesitate to claim that his nomination is void.
Ladies and gentlemen, I would like to point out that the nomination of the thirteenth defendant will be immediately suspended. Request ing legal remedies in the event of violation of basic human freedoms. R.K.W. Goonesekera with Jayantha de Almeida Guneratne and Francis Gunawardene for petitioners. S. J. Mohideen for the thirteenth respondent. WIJETUNGA, J. The Petitioner, who is the Senior International Relations Executive of First Respondent, Air Lanka Ltd.
Air Lanka alleges the infringement of its basic freedoms enshrined in Art. 12(1) of the Constitution by the nomination of the thirteenth Defendant as Chief of International Relations by the Adviser, who was its Division Chief, and was questioned on January 13.
93, the petitioner learned through the senior managerÂager, Human Resources Development (Human Resources Manager), that the interviews did recommend his nomination to the board, which at the moment, consisting of the second to sixth respondents, had agreed to postpone the nomination. Then the petitioner gave the 2. defendant a remonstrative note of 2.3. 93 (P5).
On 22 March, the Secretary of the Board of Directors briefed him. that the board would convene him at a board meeting set for 25 March. There was also no suggestion by the secretary to the applicant that his case would be taken up at the next board meeting. In the year 93 the PetiÂtioner was notified by the Adviser that the Board is considering the appointment of the thirteenth defendant for this position.
Asked the petitioner whether he would like to be transferred to another division as a senior executive under the given conditions. The petitioner also refused this proposal, pointing out to the consultant that he was only interested in the position of International Relations Manager, as this was the position that matched his skills, experiences and knowledge.
He complained about the handling given to him and asked him to notify the second defendant so that he could handle the case in accordance with the fixed and usual management procedure. In spite of the protests of the petitioner, the thirteenth respondent was named International Relations Manager on or about 3 May 1993.
Air Lanka's Board of Directors was constituted in May 1993 or about May 1993. He appealed once again to the new Board of Directors, composed of the sixth to eleventh respondents. It has also lodged that request with the Court of Justice within the meaning of Article 126(2) of the Constitution, and in its observations it took the view that Air Lanka was not an organ and/or representative of the State and that the petitioner was not justified in upholding that request, since the purported facts or failures to act in respect of which a complaint had been lodged were not covered by the concept of'executive or administrative proceedings'.
They further declared that the nomination of the thirteenth defendant was lawful, legal and without infringement of any basic right. As regards the facts which led to the nomination of the thirteenth defendant, declarations on oath were made by the former chairman, a former director and the human resources officer.
Seventh to eleventh respondents, who are the Chairman and members of the new Board of Directors (the sixth respondent, who was also a Director of the former Board of Directors and is a member of the current Board of Directors), stated that at the moment they took up their duties as Directors of Air Lanka, the thirteenth respondent's job had already been completed and he had taken up his post as International Relations Manager.
The applicants also declare that they have not taken a position on the complaint submitted by the applicant to the new Management Board, as this complaint was still before the Court. They consider that the refusal to encourage the petitioner does not constitute an enforceable breach of the petitioner's basic freedoms, which entitles him to resign under the terms of Art. 12 of the Constitution.
On 3.5.93 the thirteenth interviewee admitted that he took over the function of International Relations Manager. The applicant rejects the fact that he was excessively advantaged and declares that his nomination was based on his merits. Respondent 13 points out that the applicant's applicant's qualifications are of a general character and not specific to aviation legislation or the organisation, that the applicant is not a lawyer and that the applicant also lacks the 5-year Air Lanka MAT.
The applicant claims that he has been informed that the complaint does not reveal any reasons which would entitle the petitioner to appeal under the terms of Rule 12 of the Constitution. Even though the trained Deputy Solictorâ?'General at the beginning of his arguments gave evidence that he would claim that Air Lankaâ??s actions did not represent an enforcement or administration suit, he retreated from prosecuting the issue of justice and limited himself to the facts.
At any rate, that issue was discussed in detail by that court in Rajaratne v. Air Lanka Ltd. As I have already explained, the order of precedents is such that the petitioner is excluded from being appointed International Relations Manager. While the former Board of Directors neglected to inform this court of the conditions in which the defendant 13 filed his motion for this office, the President's Counsel made an sworn statement with example accuracy on March 7 for the seventh to eleventh respondents who are members of the current Board of Directors.
by the current Secretary General and Secretary of the Board of Directors, together with a copy of certain documentation pertinent to the case, a note of 21.11. Forty-one ( 7 R4) to the former chairman, the second repondent in this proceeding, who attaches a summary of the careers of the thirteenth repondent while he was still a McGill University scholar and recommends him "for a leadership position.......in the area of law marketiing.
"The Chairman has forwarded your note to him regarding Lasantha Hettiarachchi. Mr President, we have been discussing the issue and I have informed him that the petitioner is very promising and should be interviewed when he gets back to Sri Lanka. Your writing indicates that he will return to Sri Lanka after completing his Master (if he has not already done so).
It appears to have skills that would benefit both the legal unit and international relations. Yorkshire Street, Columbo 1. Sri Lanka. Mr Jayawardene, following our phone call and the meeting with Mr Shibly Aziz, I would like to make a request for the position of Executive Director in the International Relations Division of Airlanka.
During my interview with Mr Aziz, he told me about the current organisation of the International Relations Division, the possible starting point for a candidate with my skills and experiences and the kind of compensation packages I could get from Airlanka. My purpose in remaining is to return to Sri Lanka.
Mr President, I look forward to seeing you and further debating the opportunity for cooperation in international relations at Airlanka. "Advertising in a newspaper is not because recruiting was only done to find a job for a certain amount of space of time.
" This was the presentation of the scholarly deputy lawyer'General', who for the former board of directors seemed that what he termed the petitioner's "non-appointment" and the nomination of the defendant 13 were distinct questions and that there was no connection between them. The transfer of 91 (7R4) to the then Chairman/Managing Director was undoubtedly a move towards sponsorship of the thirteenth defendant, who was still at McGill University, for a qualified post at Airlanka.
Already at this early state, the Adviser had stated the opinion that the thirteenth respondent "appears to have skills that would benefit both the legal department and international relations". Defendant 13's request of 26.3. Section 93 (7R6) relates to a phone call between him and the Chairperson and a subsequent appointment with the Adviser, at which he submitted his "application" for the position of Manager of International Relations.
Meanwhile, the petitioner had been questioned on 13 January. 1993 from a body of senior civil servants, among them the adviser who advised him for that position. And the petitioner had learned on or about 23.2. In the case of the Board of Directors of the company, the Board of Management of the company at the outset had resolved to postpone the nomination.
The applicant submits 93 that the applicant learned that the Bureau had asked him to take into consideration the appointment of the thirteenth defendant and to evaluate the thirteenth defendant and to examine his eligibility to join the division as head. Furthermore, he explains that he had encountered the thirteenth interviewee "several times" and was "satisfied... that he was qualified for a leadership role in International Relations and would then forward (his) opinions to the then Chairman" and that he was of the opinion that "the former Chairman had questioned him (the thirteenth interviewee) as well and came to the same conclusions.
This shows that both the counsellor and the chairman had already convinced themselves of the aptitude of the thirteenth interviewee for the position before submitting his "application". There is therefore no point in claiming that there was no connection between the absence of the petitioner's name and the name of the thirteenth defendant:
This latter pushed the petitioner out of a situation for which he had previously been considered eligible. Nomination of the thirteenth defendant was inevitably subject to the condition that the applicant be excluded as a competitor. If the applicant is not nominated, the former Board of Appeal justifies this by stating that the applicant was not fit for managerial duties at that point in the proceedings.
Referring to his sworn statement, the Chairman stated that he recalled that at the board meeting at which the proposal to advance the claimant was debated, the board of directors agreed by unanimity not to respond to the proposal because, in his opinion, the claimant was not yet prepared for it. It further states that it was the opinion of the board members that'steps would be taken to find someone qualified also from outside Airlanka, since the claimant who had submitted an application according to the internal personnel information was the claimant himself.
" It is not known whether the then chairman, namely the second defendant, drew the attention of the Board of Directors to the fact that the thirteenth defendant was present in Air Lanka in 1991/1992, albeit in the shadows, and had already given a positive view as to his fitness for that position.
Strangely enough, the transcript of this board meeting, which is so important for the issue under review, was not made available to us. It is necessary to examine the applicant's allegations of indecency in relation to certain other allegations made in paragraph 6 and 7 of the former chairman's statutory declaration. Says that in the last year of his term as Chairman/Managing Director, the Adviser drew the attention of the Adviser and Mr Wijayatilake, the fourth Defendant who was another colleague, to certain problems he had due to lack of timing in the effective supervision and management of the work of that department, and asked him to place at his disposal a competent manager who could take over part of his duties so that he could act as the Adviser for whom he was initially engaged.
There was a general agreement that someone from outside the International Relations Department should be involved at the executive levels, as the highest ranking individual in the International Relations Department, the petitioner, had hitherto been unsuitable for leadership roles.
Both he and Mr Wijayatillake fully agree with these opinions, as both have first-hand experiences of the petitioner's work and work. Mr Wijayatilake also declares in his sworn statement, with particular references to paragraph 6 and paragraph 7 of the Chairman's sworn statement, that he and the Chairman properly set out the objective view and conclusion achieved with respect to the petitioner.
Thus, if there was a general agreement that the petitioner was not fit for the role of Representative for International Relations, it is not clear why the company leadership chose to take over the vain task of internally convening candidates, knowing that the only in-house nominee for this role would be the petitioner himself.
Moreover, as the former Chairman and the Board of Directors expressly acknowledged in their SO, it was the petitioner who, in October 1992, applied for the upgrading of his senior international relations executive post at managerial management levels and, in reply to this application, the adviser issued a job advertisement (P3) in which the post in question was to be occupied by recruiting internally.
However, if the board was not happy with the petitioner's qualifications and was really looking for a more skilled individual for this important position, in Air Lanka's best interest, it should have sought external applicants without resorting to what now looks like a bogus recruiting process through in-house advertising.
However, the interviewee panels that recommended the petitioners for promotions included the adviser himself (who had served as the petitioner's head of department since February 1990), the Air Lanka training coordinator, the chairman's financial adviser and a deputy from the Ministry of Policy Planning and Transport.
It is not contradicted that the adviser under whom the applicant worked directly had the best chance to assess the applicant's qualifications for that office. It was, as already noted, the adviser who had taken measures to improve the petitioner's position by demanding candidatures from within, although he well knew that the candidate would be the natural candidate.
Petition (P4) was filed by the consultant himself, who had suggested it. 1993 that some very leading Air Lanka executives and the then Chairman and Mr Wijayatillake, Director, were not happy with the petitioner's achievements and that he had repeatedly told the petitioner about this criticism and told him to correct his deficiencies and that he too had noticed them.
I do not understand why, if that was the consultant's own opinion about the petitioner, he should take action and even suggest him for nomination, especially if, as he now maintains, he knew that the chairman "was very unhappy with him (the petitioner)", "and he also agreed with the chairman's and Mr. Wijetillake's concern about the petitioner's shortcomings".
Petitioner also points out that after one year in office he was promoted and deserved his increases on schedule â?" which is incompatible with the post, that he was ineffective or unable or that his work and behaviour were in any way unsatisfactory and that at no point has there been any detrimental comment on the fulfilment of his tasks.
If, as is now claimed, the petitioner had been found to be defective, it would have been hoped that the company's senior managers would have brought these issues to his attention in written form and even warned him accordingly. Quite the opposite, the company not only gave him a promotions, but even took measures to improve his current position.
Petitioner further stated that during his Air Lanka carrier he had been appointed by the Chairman, with the consent of the Adviser, to participate in about 35 flight discussions and about 30 bi-lateral (government to government) encounters. In July 1993, after the thirteenth defendant had taken up his post, the petitioner had still taken the adviser to a bi-lateral conference in Japan.
In his sworn statement, the former Chairman stated that, despite the good scholarly backgrounds of the petitioner, who gave him a research capability, he had found in him "a deficiency of competency and trust in other areas of foreign affairs and an incapacity to deal efficiently with circumstances requiring rapid answers and reactions" and that it was "often challenging for the petitioner to take a practical stance in a situation which was a great handicap in the successful management of communication or negotiation with other carriers and aeronautical agencies.
Says that he had talked these issues over with the counsellor, who told him that he was also looking after them and that he was doing his best to help the petitioner resolve some of these issues, although he was not sure whether they could be resolved in a timely manner.
Sri Lankaâ??s government, it has to be admitted, owns about 95% of Air Lanka and even the other stockholders are state owned entities such as Bank of Ceylon, PeoÂpleâ??s Bank, National Savings Bank, Salu Sala and National Insurance Corporation. However, the materials provided by the respondents do not justify this conviction of the applicant.
In accordance with the Air Lanka promotion/recruitment process (P7), where the amount of a position to be occupied is that of a departmental and divisional head, the explicit consent of the Chairman/Managing Director must be obtained to fill this position. It can therefore be assumed that the measures to fill the position of International Relations Manager by means of in-house recruiting were carried out with the consent of the Chairman/Managing Director.
According to the sworn statement of the human resources manager, the body which questioned the petitioner had advised him to be selected, but a specific authorisation was required for his advice because the petitioner did not have the required five years of relevant expertise. This was apparently the motive why the issue was even made known to the board.
The applicant is recognised to have had the required two years' experience in the Senior Executive Grade (E V). However, at the forefront of his career, he had only worked for Air Lanka for four years. In the following sworn statement by the HR officer, it is shown that the policy was to obtain the consent of the Management Board in such circumstances and that this consent was normally given.
Indeed, a nomination for managerial office (M 1) by the same body that questioned the applicant had also been submitted to the Bureau for endorsement because the nominee had not had two years of senior executive grade (E V) senior executive expertise and the Board had endorsed his nomination at the rejection session.
During these two sessions, the petitioner summarised in great detail the proposals made by the adviser. It asks the adviser "to notify the chairman of the content of this correspondence and to send him (his) application to deal with this case through ordinary administrative channels as they were used at the date of (his) recruitment".
"Mr. Abeyratne did not advise to take Mr. Hettiaratchi to Airlanka and I pointed out to the petitioner that the above mentioned correspondence included inaccuracies concerning in particular the offering of alternate positions to the petitioner and the position of Mr. Tissa Abeyratne. The petitioner has been asked to rectify them, as I have no choice but to forward my observations to the chairman when sending my remarks on point6.
Although the petitioner has consented to examine this and to return to me, he has still not done so. "The Chairman and Directors of the former Board (with the exception of the sixth Defendant) resigned in May 1993. There does not appear to be a case where letters no. 6 were also sent to the Chairman of the current Management Board with or without the Adviser's observations.
The 91st shows that Tissa Abeyratne did not commend the thirteenth defendant to the then chairman for a leading role in Air Lanka, especially as the petitioner is confirmed on the question of Tissa Abeyratne's commendation to the thirteenth defendant. This was also the case with the protests of 2.3. 93 (P5) submitted by the petitioner to the then chairman, the acknowledgement of which was acknowledged and which reads as follows:
There is no justification for me to believe that the postponement of my promotions is due to my lack of education, my lack of accountability, my lack of corporate identity, my lack of commitment to the business, my performance of my tasks or my personal relationships. In this phase it would be important to look at the skills and experiences of the thirteenth respondent.
From November 1989 to October 1990, his attorney at law practice in Sri Lanka was less than a year, and his practice did not include aeronautics or related work. As regards the eligibility of the defendant's thirteenth defendant for this office, the then Chairman noted that the adviser asked to evaluate his eligibility had made a very positive assessment, which the adviser reported to him after several interviews he had with the defendant's thirteenth defendant.
However, the advisor states that he has interviewed the thirteenth respondent several occasions and has convinced himself that he is suited for a management role in International Relations. Furthermore, the then chairman explains that he also had a meeting with the thirteenth interviewee and was very positively influenced by his academical qualification as well as his overall personalities and ability to dispose.
It is apparent from the defendant's request that he had an interview with the counsellor before he applied for the position. It looks forward to meet the Chairman and further discuss the opportunity of working in international relations.
On oath, the defendant states that before being appointed, he was first questioned by the Adviser and later by an interviewee consisting of the then Chairman, the Human Resources Officer and the Chief Financial Officer. Therefore, the management's ability to evaluate the aptitude of the thirteenth respondent was restricted to the above.
In support of the procedure used to appoint the defendant's thirteenth defendant, the human resources manager argues that'there are cases where the departments of officials are needed to cover short-term staffing needs, they were contracted without asking in the media for candidates for such posts'.
It further explains that "the job was not promoted in the media, since the recruiting was carried out only to find a candidate for a temporary duration. First, the adviser took action to update the position of senior international relations executive of the petitioner to that of international relations manager at the initiative of the petitioner himself, and such nomination was pursued through in-house recruiting.
According to the Handbook on the Promotion/Recruitment Process (P7), it is Air Lanka's Policy "to fill vacant posts within the authorised organisation as far as possible with in-house candidates". In his counterstatement, the petitioner states that it was the adviser's intent that the nomination of the petitioner to the improved position of manager (M 1) would lead to the abolition of the office he occupied (at EV).
When the Board of Directors was not happy with the Consultative Body's recommendations on the petitioner's nomination, the only way it could legitimately request candidatures from outside nominees was through appropriate advertising. Without the very correct move of the scholarly Council of Presidents of the current Board of Directors, the conditions of the "proposal" of the thirteenth interviewee would still have stayed a puzzle.
Now we know that while the thirteenth respondent was still a McGill University undergraduate, movements were underway to find him a place at Air Lanka. He was appointed to the position in which he was employed solely on the strength of his professional and professional skills and, from a business point of view, did not take any account of the indispensable condition for gaining practical knowledge.
Required skills and qualification for a Sectional Manager, Degree M I at Air Lanka are: Intern (Promotions) â?" 5 years of experience at Air Lanka, including 2 years in the Senior Executive (E V) class. As can be seen from the above the petitioner had reasonable expectations of being nominated International Relations Manager.
Contribution was made by revaluing its current contribution. It had been nominated by a properly composed jury of senior civil servants, which included the adviser himself. As shown above, the fact that he was lacking some of the prescribed expertise at the moment of his candidature would not have prevented him.
In addition, it was Air Lanka's declared aim to fill such positions with in-house applicants as far as possible. However, the petitioner was not only deprived of his promotions, but he is now in these proceedings convicted by the company leadership, which has taken measures to create a job with the aim of advancing him.
Emphasis should be placed on the fact that, in the lack of timely evidence that the applicant has not been found to be in any way insufficient and that appropriate measures have been taken on his name, the materials provided by the company managements to this court do not warrant the conviction of the applicant.
After the petitioner had rejected all such accusations by way of the counterstatement, which he described as incorrect and vicious, and in view of his claim that there had been no opportunity for unfavourable statements to be made in order to carry out his tasks, the human resources manager, in his counterstatement of 23 September, rejected all such accusations outright.
93, could not oppose the applicant, although he made some unimportant remarks on other issues of much lesser importance and significance. And the thirteenth respondent was nominated for grounds which were not rationally related to the objective of nominating the most highly skilled individual. Therefore, the petitioner was not only unevenly dealt with, but also aggressively subjected to discrimination.
I now come to the issue of the applicability of the appointment made to the thirteenth defendant. Air Lanka had no job advertisement for which the thirteenth respondent could have applied. Appointed International Relations Manager other than through the accepted process for such employment.
The nomination was dependent on the petitioner's breach of his right to equal rights under the Constitution by demonstrating inappropriate prejudice against the thirteenth defendant. Therefore, I do not hesitate to claim that his nomination is void.
Accordingly, I would point out that the nomination of the thirteenth defendant will be immediately discontinued. The President's trained lawyer for the seventh to eleventh respondents pointed out that even if the court found that there had been discriminatory treatment, it should abstain from nominating the petitioner for the position in dispute.
He claimed that the Court should not replace his ruling with that of the Management Board on the question of assessing the eligibility of a candidate for a position. The complainant pointed out to us that the Board of Directors, newly created in May 1993, had waived its right to a ruling on the case since the action was still before the Court.
He therefore demanded that the current board of directors remain free to select a qualified nominee who will stand under any circumstances the court may prescribe. Those interviewed who fill the resulting gap in accordance with the First Respondent's above-mentioned guideline and with regard to his promotion/recruitment process (P7) and that the International Relations Manager will be appointed within three month of the date of this assignment.
May I also point out that the request already made by the petitioner is regarded as a request for this position, except for the supplementary materials that he may provide, and that the opinion and opinion of any member of the former Administrative Board or any officer of the first defendant, Mr President, Commissioner, ladies and gentlemen, any opinion or opinion of the petitioner which may be voiced in the course of this procedure by any member of the former Administrative Board or by any officer of the first defendant, Mr President, Commissioner, ladies and gentlemen, Commissioner, ladies and gentlemen, Mr President, ladies and gentlemen, I would like to point out that the petition already made by the petitioner is regarded as a request for this position.
Considering the totally unjustified discriminatory nature and the unnecessarily insulting way in which the attempt was made to justify the refusal to nominate the petitioner, I grant the petitioner an amount of Rs.50,000/â?' as a solitary measure for the breach of his basic freedoms, granted in Art. 12(1) of the Constitution, to be paid by the first defendant.
Furthermore, I order the first defendant to reimburse the applicant an amount of 5.000/â?' as expenses.