This case is about a legal dispute concerning the retirement age of an employee (the petitioner) who is an English copy typist. The petitioner argues that his employer (Sri Lanka State Plantations Corporation) forced him to retire at 55 years, which he believes is unfair.
The petitioner made an application under Article 126 of the Constitution which empowers the Supreme Court to enforce fundamental rights enshrined in the Constitution. (Reddiar v. Van Houten and Others – SLR – 265, Vol 1 of 1988 [1980] LKSC 4; (1988) 1 Sri LR 265 (9 June 1980).).
The petitioner argues that his right to equality (Article 12) and right to engage in any lawful occupation or profession (Article 14) have been violated.
He cites in his petition an internal circular issued by the General Manager of the Corporation to regional boards andmentions a directive from the Presidential Secretariat stating that employees on plantations who wish to continue working should not be retired before 60 years without approval from the Presidential Secretariat.
Circular C of 6.2.1985 is another internal circular from the Chairman of the Corporation to all Superintendents. The petitioner argues it specifies that staff cannot be retired before 60 without Presidential Secretariat approval.
Proper reasons
In essence, the petitioner argues that mandatory retirement age is 60 according to internal circulars. He was not given proper reasons for his ‘premature’retirementat 55 and proper procedure for retirement outlined in the circulars was not followed.
The employer, on the other hand, claims that 55 is the retirement age and they acted within their rights.The judgement initially focuses on the applicability of internal circulars regarding retirement procedures for non-executive estate staff.
Circulars B and C govern the retirement of “non-executive estate staff” employed on plantations. They establish a process for retirement including 6 months’ notice prior to retirement.
There is a requirement for written reasons to be adduced if extension of service beyond 55 years is not recommended. Obtaining approval of the SLSPC Board for extension requests is mandated and there is a potential need for approval from the President for retirement before 60 years.
The employee argues that the respondents (Board officials) violated these circulars during his retirement process by not providing written reasons for denying his extension request and obtaining presidential approval for his retirement before 60 years (if applicable).
The respondent Board argued that the circulars don’t apply to the employee because he was a “non-executive staff” employed in the Board’s office (and not on a plantation). The circulars are intended for “non-executive estate staff” specifically working on plantations.
Breach of Circulars
The judge acknowledges that the petitioner’s case for violation of Article 12(1) (right to equality) hinges on the breach of Circulars B and C. The judgment concludes that the wording of the circulars (“non-executive estate staff”) are clear, and suggests they only apply to plantation staff.
Did the employee hold a position considered “non-executive estate staff” despite the office location? Did the Board follow its own internal procedures even if the specific circulars didn’t apply?
The judgment states, as a bridged here:”…a distinction between the two categories of employees, in relation to the age of retirement, appears to have originated with the issue of Circular R 1 of 17.3.1978… Schedule 1 of this Circular specifies the appropriate authority for granting of … a distinction between the two categories of employees, in relation to the age of retirement, appears to have originated with the issue of Circular R 1 of 17.3.1978… Schedule 1 of this Circular specifies the appropriate authority for granting of extensions of service to the various categories of employees of the Corporation and the officer through whom such applications for extensions should be submitted. It enumerates, amongst others, the following 3 categories of employees, namely, Regional Office Non-Executives, Head Office Non-Executives and Estate Sub-Staff.”
The judgement concludes therefore that the petitioner’s claim for relief on the basis of the averments set out in his application to the Court must fail.
The judgement refers to the Elmore Perera case ((1985] 1 Sri LR-340) which established a precedent that to succeed in a case of discrimination under Article 12(1), a petitioner must prove that he has been treated differently from others similarly circumstanced.
Beyond retirement age
In the current case under review, the petitioner failed to prove such differential treatment. He submitted a letter ‘T’ as evidence that another employee, Thiyagarajah, was given an extension beyond the retirement age. However, the court found the letter inadmissible as hearsay and even if its contents were true, there is no evidence to show the circumstances under which Thiyagarajah was given the extension.
The petitioner also claimed that the company violated his rights to freedom of association and movement (Articles 14 (1) (c) and (h) of the Constitution) by prohibiting him from entering the office premises without permission. He argued this restriction is connected to his trade union activities (which the company allegedly disapproves of) and his attempt to challenge a complaint against him.
One month time bar
The Court dismissed the petitioner’s claim with regard to restrictions upon his entry to office premises, stating the petitioner waited over a month to file his complaint after receiving the restriction letter. Fundemetal Rights applications in Court are subject to a one month time bar.
The Court found no evidence that the company restricted his access due to his trade union involvement.
The judgment states the Board’s office isn’t a public space like a park. The petitioner, being on compulsory leave, had no duties there.The respondent company argued the petitioner’s presence could disrupt work due to past issues. The Court accepted this reasoning as potentially valid.
The judgment further stated that the petitioner never tried to enter and get denied permission. He challenged the general rule itself. The Court clarified that freedom of association doesn’t guarantee access to any place and freedom of movement doesn’t apply to entering a non-public office.
The Court dismissed the petitioner’s application regarding these alleged violations and ordered him to pay costs.
