011-NLR-NLR-V-79-1-S-.S.-WIJEDEERA-Appellant-and-S.-K.-BABYHAMY-Respondent.pdf
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RAJARATUAM, J.— Wijcdcera v. Babyhamy
Present: Kajaratnam, J.S. S. WIJEDEERA, Appellant,and
S. K. BABYHAMY, RespondentS.C. 234/70—L. T. 204/Matara
Labour Tribunal—Domestic servant—Whether she can claim relief ifshe is also her employees mistress—Jurisdiction of Tribunal toaward proved arrears of wages.
The r-pplicant-rcspondent was a domestic servant of therespondent-appellant and' was also kept as a mistress by him.
Held: That the applicant was a “workman” within ihe meaningof the Industrial Disputes Act. The fact that she was a mistresscould not prevent her from claiming relief as an employee.
Held further: That a Labour Tribunal has jurisdiction to awardproved arrears of wages as a part of a just and equitable order.
Repeal from an order of a Labour Tribunal.
L. W. Athulathmudali, with Mahinda de Silva for the respon-dent-appellant .
R. Gooneratne, for the applicant-respondent.
Cur. adv. vult.
November 26, 1973. Rajaratnam, J.
At the conclusion of the argument I dismissed this appeal withcosts. Learned Counsel for the appellant submitted that in theparticular circumstances of this case the President should nothave treated the applicant as a workman inasmuch as she wasalso the mistress of the respondent and during the time she wasa mistress she would have obtained various advantages and bene-fits from her employer. The employer gave no evidence. Theuncontradicted testimony of the applicant was to the effect thatshe was employed under the respondent as a domestic servantand had lived in his house from the time she was 7 years /old.The respondent had promised to pay a salary when she wasabout 25 years old and thereafter she had remained as a domesticservant. She was promised a salary of Rs. 35. She also statedthat while she was a domestic servant she was kept by the res-pondent as his mistress. In view of the dual functions that theapplicant performed according to her uncontradicted testimony,
RAJARATNAM, J.— WijvJ' era t>. Bc.bnhn.my
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the learned Counsel for the appellant submitted that she wasnot entitled to any relief or redress from the tribunal. If learnedCounsel is right the master of the house absolves himself fromhis liabilities as an employer if he develops an association withhis cook-woman. I am unable to accept this proposition.
The applicant in this case quite rightly came to the tribunal onthe termination of her employment asking for relief and redress.The President made all necessary inquiries and granted her 3months' wages as compensation amounting to Rs. 105 and a sumof Rs. 840 which includes wages for 3 years. The President didnot award her arrears of wages for the full period she was inemployment under the respondent on the ground that thesewages are .prescribed in law.
I hold that proved arrears of wages can be part of a just andequitable order which a tribunal is entitled under the IndustrialDisputes Act to make. I have expressed this view in a previousjudgment of mine. It will neither be just nor equitable to pre-clude the tribunal from awarding proved arrears of wages wherean employee comes to the tribunal crying for relief and redresson the termination of his services. Presidents can have regard tounpaid wages when they grant equitable relief to the applicants.There is no necessity to look for any provisions of the law toconsider whether the tribunal has jurisdiction to award provedarrears of wages as a part of a just and equitable order. I donot, however, propose to enhance the award made by the Presi-dent in this case. On the uncontradicted evidence of the appli-cant she has been a domestic servant besides being the mistressof the respondent who is a landed proprietor. This fact does notprevent her from the relief that she is entitled to from thetribunal as an employee.
The order of the President is affirmed. The respondent willpay the applicant the sum ordered, i.e., Rs. 970 together with thecosts of this appeal which I fix at Rs. 105. A sum of Rs. 1,075 willtherefore be deposited, to be paid to the applicant, with theLabour Officer, Matara, within one month of the date of thisorder. The Labour Department will be informed of this orderagainst the respondent, Sarny Sugunapala Wijedeera, Galwala-kuttiya, Makandura, Beragama.
Appeal dismissed