Our first move was to visit our lawyers, Messrs Julius & Creasy, whose head was a very clever lawyer called Byrnell.
by Charitha. P. de Silva
(This piece has been excerpted from business leader Charitha. P. de Silva’s Memoirs published in 2018 in the context of the impending Trincomalee Oil Tank Farm deal which is today a hotly discussed topic. De Silva who retired as Chairman of Aitken Spence in a professional accountant who began his post qualification working life at Caltex, one of the three multinational oil giants running the petroleum import and distribution business in then Ceylon nationalized in 1962 by the Sirima Bandaranaike government.)
To get back to my Caltex days: danger was looming for us in the form of the powerful Leftist group in Mrs Bandaranaike’s cabinet. Minister T.B. Ilangeratne and two leftist officials, Sam Silva (Civil Servant) and G.V.S. de Silva (brilliant economist and a former classmate of mine at Royal) had convinced Mrs B that it was very much in the interests of the country to nationalise the Oil Industry that was run by three foreign oil companies, Shell, Esso and Caltex.
GVS and Co. had been publishing articles showing how much foreign exchange would be saved if Sri Lanka imported crude from sources such as Russia and refined it herself. I saw very clearly that the writing was on the wall, and tried to persuade my Managing Director, Harry Bernard, to allow me to refute some of the fallacious arguments that GVS and Co were putting forward.
Bernard was a very cautious, mild man and was loath to write anything that might antagonize the government. In this frustrating situation our Intelligence man, Douglas Kelly (former senior policeman) informed us on a Monday that a gazette was already printed to take over the Caltex Oil Installation at Bloemendhal on the Friday!
I walked into Bernard’s room and asked him “Harry, can I write something now?” Deeply depressed he told me to go ahead and write whatever I wanted. I immediately sat down and wrote a strong article refuting many of the claims made by GVS. I pointed out, among other things, that in trying to save about Rs 14 million per annum by expropriating Oil company assets and nationalizing the Oil Industry the Government was running the risk of enraging America thereby jeopardizing a Rs 140 million tea market to the US. I also pointed out that the oil companies were giving the consumers of the country a very good service through their competition and concentration on quality and service. All this would be lost when a Government monopoly took over.
Bernard read the article, blanched, and asked me to go across to Shell (they were on the first floor of the Chartered Bank building, and we were on the third) and show it to Blarney, the boss of Shell, the leader of the oil oligopoly with 60% of the market. As the article would be under Bernard’s name Harry was understandably nervous.
I walked across to Blarney’s office and showed him the article. He read it with close attention. At one point a smile stole across his face. Mrs B had gone to great pains to point out that it was not her intention to get rid of the Oil Companies from the local scene. All she wanted to do was to bring down the cost of imports by taking advantage of an attractive offer made by Russia.
She could not understand why we could not reduce the cost of our imports. She did not realize that the market in the entire Indian subcontinent would be affected if the price to Sri Lanka was reduced; and our imports were miniscule comapared to India’s and Pakistan’s who would all be compelled to fall in line. In the body of my article I had written “For Mrs B to say that it was not her intention to get rid of the oil companies but only to reduce the cost of oil imports is like cutting a ladder from under a man’s feet and claiming that the intention is not to bring him down but to collect some firewood!”
Blarney totally approved of the article (he must have been relieved that it was to be signed by Bernard and not himself) and urged me to walk 50 yards down the street to the office of Mason, the MD of Esso, and show it to him. I did so, and found to my delight that Mason was so thrilled with it that he provided me with an office and stationery, and insisted that I write an article for him too!
I did so, and thus it came about that both articles appeared on the centre page of the Ceylon Daily News (CDN) on Wednesday, Cabinet day. For information on what happened thereafter I am indebted to my cousin Percy Peiris, who was Cabinet Secretary at the time and told me the story some years after he had retired by which time the question of the confidentiality of cabinet discussions was no longer important.
Mrs B had stormed into the Cabinet Office waving the CDN in her hand. She had screamed at Ilangeratne “TB, what are you trying to do? Are you trying to bring our Government down? This whole plan of taking over the Caltex Terminal is Phillip’s idea (Phillip being her political enemy, Phillip Gunawardena, who was a dyed-in-the-wool Marxist). GVS de Silva and Sam Silva are his men. Get rid of them within a month. And stop the takeover of the Caltex plant.”
History will record that the gazette was canceled and Caltex was saved for the nonce. From this extraordinary experience I learnt a lesson that I never forgot. It is vital that when an injustice or wrong is threatened, good men must stand up and fight against it, as Burke pointed out in the 18th Century. Also, the one thing that Governments fear is the written word -particularly in their own newspaper!
There is a curious footnote to this affair. GVS who was one of the key thinkers behind the Nationalization visited me in my home down Maya Avenue during the early days when the Ceylon Petroleum Corporation (CPC) was being set up. He was a mild, innocuous looking, extremely clever individual who evidently had a high regard for his one-time classmate. He told me that the oil companies were doomed, and he offered me the top financial job at the CPC (when I was only a Deputy Chief Accountant at Caltex).
When I explained to him that I was by temperament a private-sector man who would never fit into the public sector he told me very earnestly, that in five years’ time there would be no private sector left in the country as every key industry would be in the hands of the Government. I remember telling him how much I appreciated his offer (I really did) but I would regretfully resign myself to my fate.
It was therefore ironic that as a direct result of my two articles he himself lost his job at the CPC. Fate works in strange ways. I wonder whether he ever realized that it was I who had written the articles that had cost him his job. No one in the private sector, and certainly none of my colleagues, were aware of it. I kept it a close secret as I had no desire to let down my Managing Director, Harry Bernard (under whose name my article was written) who was a charming man.
My next memorable experience at Caltex was after Government passed legislation to take over the assets of the oil companies. The thinkers behind the legislation drafted the law so that the companies would get very little compensation. They stipulated that compensation would be the purchase price of the assets less depreciation. They knew that the Terminal installations and service stations were well over ten years old and would have been written off in the books of account.
At Caltex I had been placed in charge of the compensation claim because the Chief Accountant, a charming Englishman called Geoffrey Gardiner was far more interested in producing plays at the Lionel Wendt (he was a producer and actor) than getting involved in the nitty-gritty of the Compensation Claim. A brilliant American called Jim Wollahan (California-Texas Oil Corporation) came down to Colombo, sized up the situation, and sat down with me to figure out our strategy.
Our first move was to visit our lawyers, Messrs Julius & Creasy, whose head was a very clever lawyer called Byrnell. Byrnell studied the relevant section together with us and told us regretfully that there was no way we could expect market value for our assets because the legislation was shrewdly drafted to prevent it. It would be “purchase price less depreciation” even though they had as a sop to international opinion added a proviso that “if purchase price was not determinable” it would be market value. They knew full well that oil company accounting would be so meticulous that every purchase would be correctly recorded.
Wollahan and I returned crestfallen and deeply disappointed to my office and thrashed the matter out from every angle. After a couple of hours of the most intensive devil’s advocacy on the part of both of us, Wollahan suddenly cried out “Chari, it will be market value!”. His point was that we did not know the purchase price of our installations and service stations. We had not purchased them from anyone. We had built them. It was a brilliant concept that was later confirmed as legally sound by H.V. Perera QC, the last word on law in Sri Lanka.
I was entrusted the task of writing the Memorandum on “Why Purchase Price was not determinable”. Once the basis of compensation became market value, we included Goodwill in our Claim because Market Value was the price that a willing buyer (say Phillips Petroleum) would pay a willing seller, and that would certainly include Goodwill.
I was put in charge of preparing our Compensation Claim (Gardiner was delighted to be relieved of that responsibility) and did so with the help of my able assistant Bertie Casie Chetty. It ended up literally with millions of dollars more than the leftists behind the legislation had ever anticipated.
This experience taught me one of the most valuable lessons of my life. Never since that day did I accept unquestioningly the opinion of a lawyer on a matter that had business or moral implications. I tended from that day onward to make all business decisions myself and use lawyers for their expertise to prepare the legal documentation. I had always had a legal bent, and from then onward gave it full reign. The culmination of this attitude was when I sued Aitken Spence & Co Ltd in 2007 (16 years after my retirement) on the grounds of Oppression. But that is another story. (I won that case; pp. 123 to 127).
During the compilation of the Compensation Claim, in 1962, Mike Thornton of Aitken Spence sent for me. This was the second time I was interviewed by Aitken Spence for a job. The first time was when R.P. Gaddum offered me the job of accountant shortly after I had passed out as a Chartered Accountant in 1955. Thornton offered me the job of Chief Accountant.
I told him that unfortunately I was heavily involved in the Compensation Claim for Caltex and could not let them down. We parted and he wrote me a charming letter. After this experience I got Bertie Casie Chetty to sign all the documents that would be used in the case.
Meanwhile Jim Wollahan, who had developed a huge regard for me, offered me employment as an expatriate. I declined it for a number of reasons. Firstly I had no great desire to live the life of a nomad abroad, traveling from one country to another. Secondly, I knew that it was quite likely that I would be posted to some Asian country like India or Malaysia. My colleagues in those countries, who would be as well qualified as I was, would be earning much less than I did (being an expatriate). In those circumstances it was unlikely that they would cooperate whole heartedly with me, or view me with great affection.
Around 1962 the government finally took over the assets of the oil companies. The employees were offered handsome severance packages and the staff at Caltex dwindled to a skeleton. At this point, I received my third offer to join Aitken Spence where Jack Reeves had taken over from Mike Thornton, and Ron Law the Chief Accountant had given notice of resignation. I evaluated the two choices before me: either become an expatriate with Caltex or the Chief Accountant of Aitken Spence.
I had already foreseen the problems I would be faced with as an expatriate. In any case three unsolicited offers from the same company within ten years seemed too much like Fate. I therefore accepted Aitken Spence’s offer after informing Harry Bernard and Geof Gardiner of my decision. They were sad about it but very understanding. They were also generous, because despite the fact that I was employed by Aitken Spence the day after I left Caltex they paid me the full Compensation Package!