SURATH WICKREMASINGHE v. NETHISINGHE AND TWO OTHERS

049-SLLR-SLLR-2004-V-3-SURATH-WICKREMASINGHE-v.-NETHISINGHE-AND-TWO-OTHERS.pdf


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Blanka Diamonds (Pvt) Ltd v Van Els
(Wijetunga, J.)
SURATH WICKREMASINGHEvNETHISINGHE AND TWO OTHERSCOURT OF APPEAL
SALEEM MARSOOF, J. PC (P/CA)
SRISKANDARAJA, J.
CA 659/2003AUGUST 5, 2004SEPTEMBER 14, 2004
Termination of Employment of Workmen (Special Provisions) Act (TED) 45 of1971 amended by Act No. 4 of 1976 – sections 2, 5 and 6 – Has theCommissioner power to award compensation in lieu of or without reinstatementexcept when there is a closure.
The 1st respondent complained to the Commissioner of Labour alleging thatthe decision of the petitioner to send her on no pay leave for 3 months wastantamount to a violation of her contract of service and was contrary to law.After inquiry the Commissioner determined that the petitioner has terminatedthe employment of the 1st respondent without obtaining her prior consent orprior written approval of the Commissioner of Labour in contravention ofsection 2 of the TEU and in view of the fact that the nature of the employmentof the 1st respondent as a private secretary was of a personal nature, withoutordering reinstatement, instead awarded compensation.
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Held:
In terms of Section 6 of the TEU Act in the circumstances, theCommissioner of Labour has only the power to order the employer tocontinue to employ. the workman and he has no power to awardcompensation in lieu of making an order compelling the employer tocontinue to employ the workman.
Per Saleem Marsoof, J. (PC)
“It must be desirable to confer such a discretionary power to theCommissioner General of Labour to deal with the eventualities such asthose presented in the instant case".
APPLICATION for a Writ of Certiorari
Case referred to:
Eksath Kamkaru Samithiya v Commissioner of Labour – 2001 2 Sri LR 137.Ranjan Gunaratne for petitioners.
Murshid Maharoof for 1st respondent.
Yuresha de Silva for 2nd respondent.
Cur.adv.vult.
October 7, 2004.
SALEEM MARSOOF, J., P/C.A.The Respondent-Petitioner (hereinafter referred to as 'thePetitioner'), is a well-known architectural firm carrying on businessunder the name and style of ’Surath Wickremasinghe Associates". Ithas filed this application seeking a writ of certiorari to quash theorder made by the 2nd Respondent, Commissioner General ofLabour dated 30th December 2002 (P6) awarding the 1 st Applicant-,Respondent (hereinafter referred to as the 1st Respondent)compensation computed at the rate of 3 months salary for every yearof service in terms of Section 6 of the Termination of Employment ofWorkmen (Special Provisions) Act No. 45 of 1971, as subsequentlyamended. The said order was a sequel to an application dated 26thSeptember 2001 (P3) made by the 1st Respondent seeking reliefagainst the decision of the Petitioner to send the 1 st Respondent onno pay leave for 3 months with effect from 30th September 2001. Thesaid decision was communicated to the 1st Respondent by thePetitioner's letter dated 3rd September 2001 (P2) in which, afterthanking the 1st Respondent for giving her very best towards the
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progress of the firm, it is stated that "due to cut backs on capitalexpenditure" and "the prevailing economic crisis in the country" thePetitioner is compelled to "downsize" the staff.
The letter continues as follows:
The Management has closely considered the options availableand have decided to grant you three months no-pay leave witheffect from 30th September 2001 and any payments due to youwill be paid before this date.
"Meanwhile, if you need a letter of recommendation or acertificate confirming your employment with us, with a view toobtaining alternative employment, the undersigned would bepleased to provide you with same.
"In the event the political and financial situation in the countrygets better and we get adequate work you will be recalled andthe terms of your employment will be as per the Agreement.
"We trust you will understand our position and bear with us inthis regard.
With warm regards,
Yours sincerely,
Sgd/-
Deshabandu Surath WickremasingheChairman"
The 1st Respondent sought the assistance of the 2ndRespondent, Commissioner of Labour by her letter dated 26thSeptember 2001 (P3) alleging that the decision of the petitioner tosend her on no pay leave for 3 months tantamounted to a violationof her contract of service and was contrary to law. The 2ndRespondent caused an inquiry to be held by an AssistantCommissioner of Labour, the proceedings of which have beenproduced marked P5 and in the course of which the testimony ofthe 1st Respondent was also recorded. The order of the 2ndRespondent dated 30th December 2002(P6) was made after the
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conclusion of the said inquiry. The 2nd Respondent, Commissionerof Labour has determined that the Petitioner had terminated theemployment of the 1st Respondent without obtaining her prior' consent in writing or the prior written approval of the Commissionerof Labour in contravention of Section 2 of the Termination ofEmployment of Workman (Special Provisions) Act. However, inview of the fact that the nature of the employment of the 1stRespondent as a Private Secretary was of a personal nature the2nd Respondent did not make an order directing the Petitioner tocontinue to employ the 1st Respondent in the same capacity inwhich she was employed prior to the termination of heremployment, and instead made an order as noted above awardingher compensation at the rate of 3 months salary for everycompleted year of service in the Petitioner firm.
Although in the petition filed before Court several grounds havebeen urged for challenging the said order, when this applicationwas taken up for hearing on 5th August 2004 learned Counsel forthe Petitioner indicated that he would rest his case on the legalityof P6 and submitted that in terms of Section 5 and 6 of theTermination of Employment of Workmen (Special Provisions) Actthe 2nd Respondent, Commissioner of Labour had no power toaward compensation in lieu of or without re-instatement exceptwhere there is a closure. Oral submission of Counsel and thewritten submission filed subsequently were confined to this issuealone.
In order to appreciate the submissions of Counsel in regard tothis issue it is necessary to consider Sections 5 and 6 of theTermination of Employment of Workmen (Special Provisions) ActNo. 45 of 1971 which are quoted below:
"5. Where an employer terminates the scheduled employmentof a workman in contravention of the provisions of this Act,such termination shall be illegal, null and void, andaccordingly shall be of no effect whatsoever
"6. Where an employer terminates the scheduled employmentof a workman in contravention of the provisions of this Act,the Commissioner may order such employer to continue toemploy the workman, with effect from a date specified in
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such order, in the same capacity in which the workman wasemployed prior to such termination, and to pay theworkman his wages and all other benefits which theworkman would have otherwise received if his services hadnot been so terminated, and it shall be the duty of theemployer to comply with such order. The Commissionershall cause notice of such order to be served on both suchemployer and the workman."
Section 6 of the Act does not confer any power to theCommissioner to award compensation to an employee whoseemployment has been illegally terminated. On the face of the saidsection the Commissioner of Labour can only order the employer to"pay the workmen his wages and all other benefits which theworkmen would have otherwise received if his services had notbeen so terminated" and that too, only where the Commissionerhas made order that such employer should continue to employ theworkman. In this case the 2nd Respondent, Commissioner ofLabour has declined to make an order that the employer shouldcontinue to employ the workman as contemplated by Section 6 andit has been submitted on behalf of the Petitioner in thesecircumstances the award of compensation to the 1 st Respondent isnot justified in terms of Section 6. He sought to compare with theaforesaid provision Section 6A(1) of the Act which was introducedby Section 4 of Law No. 4 of 1976 to show that the power to awardcompensation (as opposed to wages and other benefits) under theAct is confined to a situation where the employment was terminatedin consequences of the closure of the trade, industry or businessof the employer. In fact Section 6 A(1) expressly provides that –
"Where the scheduled employment of any workman isterminated in contravention of the provisions of this Act inconsequence of the closure by his employer of any trade,industry or business, the Commissioner may order suchemployer to pay to such workman on or before a specifieddate any sum of money as compensation as an alternative tothe reinstatement of such workman and any gratuity or anyother benefit payable to such workman by such employer."
The identical issues that arise in the present case were dealtwith recently by this Court in Eksath Kamkaru Samithiya v
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Commissioner of LabouW (2001) 2 Sri LR 137. In that case, atrade union acting on behalf of 26 workmen complained to theCommissioner of Labour that the termination of their scheduledemployment by the employer was illegal. The Commissioner ofLabour found that the termination of employment of the 23workmen was illegal and ordered the employer to paycompensation at the rate of 6 months' salary to workmen whoselength of service ranged between 1 to 3 years, 12 month's salary toworkmen whose length of service ranged between 3 to 6 years and18 months' salary to workmen whose length of service exceeded 6years. The Petitioner sought to quash the said order by certiorariand further sought a mandate in the nature of mandamus on theCommissioner of Labour to compel him to make an order accordingto law. The Court of Appeal granted to the union relief as prayedfor by it. In the course of his judgment in the case U.D.Z.Gunawardane, J. made the following pertinent observation-
"In section 6 of the Act the term 'wages' is obviously used inthe sense of a fixed payment to be made by the employer atregular intervals, very often monthly, to a workman in return forthe work or services rendered by the workman. It is to beobserved that in section 6 A(1) of the relevant Act the term'compensation' is used in contradistinction to the term
'wages'What I am seeking to explain is this, that is,
that 'compensation' is not a thing of the same class or kind as'wages' and as such in the expression that is employed insection 6 of the Act i.e. 'wages and all other benefits' – theterm 'benefits' cannot be interpreted as embracing'compensation' which is paid as damages to make good theharm or injury caused by the loss of employment, and notpaid, like wages, under the contract of employment itself,whilst such contract subsists."
Adverting to the issue whether the Commissioner has anydiscretion to award compensation in lieu of restoration in service.His Lordship Gunawardane, J. went on to observe at 144 of thejudgment –
"It is somewhat irrational to suppose that the legislature, afterhaving so sternly, decidedly and uncompromisingly declared
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in section 5 of Act that any termination of employment, incontravention of the provisions of the relevant Act to be utterlyvoid, would have relented in the very next succeeding sectionof the Act and in the same breach, so to speak, would havegiven the Commissioner a discretion whether or not to orderthe re-instatement of the workmen. When Section 5 of the Actdeclared that all termination of services of workmen in breachof the provisions of the relevant Act is "illegal null void andaccordingly shall be of no force or effect whatsoever", there is,at the lowest, an implicit recognition of the legal right of theworkman to remain in employment notwithstanding the
purported terminationAnd, in fact, such machinery for
enforcement of the workman's rights, in the givencircumstances, had been provided for by Section 6 of the Act- which requires the Commissioner to reinstate the workmanalthough the draftmen has, perhaps, by force of habit used theword "may" to which draftmen seem to be addicted to."
I am in agreement with the reasoning of this Court in EksathKamkaru Samithiya v Commissioner of Labour (supra) and holdthat the 2nd .Respondent only has the power in terms of Section 6of the Termination of Employment of Workmen (Special Provisions)Act to order the employer to "continue to employ the workman" andhe has no power to award, compensation in lieu of making an ordercompelling the employer to continue to employ the workman,although it might be desirable to confer such a discretionary powerto the Commissioner General of Labour to deal with eventualitiessuch as those presented in the instant case.
For the foregoing reasons, I make order granting a writ ofcertiorari quashing the impugned order of the 2nd RespondentCommissioner of Labour dated 30th December 2002 marked P6.There shall be no order for costs in all the circumstances of thiscase.
SRISKANDARAJAH, J. – I agree.
Application allowed.