012-SLLR-SLLR-2005-V-1-WICKRAMASINGHE-vs.-NETHASINGHE.pdf
WICKRAMASINGHE
vs
NETHASINGHE
COURT OF APPEAL
MARSOOF, P. C., J. (P/CA) AND SRISKANDARAJAH, J.
CA 659/2003AUGUST 5, 2004 ANDSEPTEMBER 14,2004
Termination of Employment of Workmen (Special Provision) Act, No. 45 of1971, sections 5, 6, and and 6A (1) — Amending Act, No. 4 of 1976 – Noclosure – Has the Commissioner authority to award compensation in lieu of re- instatement 7
The petitioner decided to send the 1st respondent employee on 3 months nopay leave. On a complaint lodged by the respondent employee, the 2ndrespondent Assistant Commissioner of Labour caused an Inquiry to be heldand observed that the petitioner had terminated the employment of the 1st
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respondent without obtaining her prior consent or prior approval of theCommissioner of Labour and ordered compensation to be paid to the 1strespondent employee.
Held:
(i) Under section 6 the Commissioner has only the power to order the employerto continue to employ the workman and he has no power to awardcompensation in lieu of making an order compelling the employer to continueto employ the workman.
APPLICATION for a writ of Certiorari/ Mandamus.
Case referred to:
1. Eksath Kamkaru Samithiya vs Commissioner of Labour (2001) – 2 Sri LR
137
Ranjan Goonarathe for petitioner.
Murshid Maharoof for 1 st respondent
Yuresha de Silva State Counsel for 2nd respondent.
Cur.adv.vult
October 7, 2004
SALEEM MARSOOF, J, P/CAThe Respondent – Petitioner (hereinafter referred to as ‘the Petitioned) is awell known architectural firm carrying on business under the name andstyle of “Surath Wickremasinghe Associates”. It has filed this applicationseeking a writ of certiorari to quash the order made by the 2nd Respondent,Commissioner General of Labour dated 30th December 2002 (P6)awarding the 1st Applicant – Respondent (hereinafter referred to as the1 st Respondent) compensation computed at the rate of 3 months salaryfor every year of service in terms of Section 6 of the Termination ofEmployment of Workmen (Special Provisions) Act, No. 45 of 1971, assubsequently amended. The said order was a sequel to an applicationdated 26th September 2001 (P3) made by the 1st Respondent seekingrelief against the decision of the Petitioner to send the 1 st Respondent onno pay leave for 3 months with effect from 30th September 2001. The saiddecision was communicated to the 1st Respondent by the Petitioner’sletter dated 3rd September 2001 (P2) in which, after thanking the 1st
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Respondent for giving her very best towards the progress of the firm, it isstated that “due to cut backs on capital expenditure” and “the prevailingeconomic crisis in the country” the Petitioner is compelled to “downsize”the staff.
The letter continues as follows:
“The Management has closely considered the options available andhave decided to grant you three months no pay leave with effect from■ 30th September 2001 and any payments due to you will be paid beforethis date.'
Meanwhile, if you need a letter of recommendation or a certificateconfirming your employment with us, with a view to obtaining alternativeemployment, .the undersigned would be pleased to provide you withsame.
In the event the political and financial situation in the country gets betterand we get adequate work you will be recalled and the terms of youremployment will be as per the Agreement.
We trust you will understand our position and. bear with us in thisregard.
With warm regards,
Yours sincerely,
Sgd/-
Deshabandu Surath WickremasingheChairman.”
The 1 st Respondent sought the assistance of the 2nd Respondent, byher letter dated 26th September 2001 (P3) alleging that the decision of the ■Petitioner to send her on no pay leave lor 3 months tantamounted to aviolation of her contract of service and was contrary to law. The 2ndRespondent caused an inquiry to be held by an Assistant Commissionerof Labour, the proceedings of which have been produced marked P5 and
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in the course of which the testimony of the 1st Respondent was alsorecorded. The order of the 2nd Respondent dated 30th December 2002(P6) was made after the conclusion of the said inquiry. The 2nd Respondent,Commissioner General of Labour has determined that the Petitioner hadterminated the employment of the 1st Respondent without obtaining herprior consent in writing or the prior written approval of the Commissioner ofLabour in contravention of Section 2 of the Termination of Employment ofWorkmen (Special Provisions) Act. However in view fo the fact that thenature of the employment of the respondent as a private secretary was ofa personal nature, the 2nd respondent did not make an order directing thepetitioner to continue to employ the 1st respondent in the same capacityin which she was employed prior to the termination of her employment,and instead made an order as noted above awarding her compensation atthe rate of 3 months salary for every completed year of service in thePetitioner firm.
Although in the petition filed before Court several grounds have beenurged for challenging the said order, when this application was taken upfor hearing on 5th August 2004 learned Counsel for the Petitioner indicatedthat he would rest his case on the legality of P6 and submitted that interms of Sections 5 and 6 of the Termination of Employment of Workmen(Special Provisions) Act, the 2nd Respondent had no power to awardcompensation in lieu, of or without, reinstatement except where there is aclosure. Oral submission of Counsel and the written submission filedsubsequently were confined to this issue alone.
In order to appreciate the submissions of Counsel in regard to thisissue it is necessary to consider Sections 5 and 6'of the Termination ofEmployment of Workmen (Special Provisions) Act, No. 45 of 1971 whichare quoted below:
“ 5. Where an employer terminates the scheduled employment of aworkman in contravention of the provisions of this Act, such terminationshall be illegal, null and void, and accordingly shall be of no effectwhatsoever
Where an employer terminates the scheduled employment of aworkman in contravention of the provisions of this Act, the Commissionermay order such employer to continue to employ the workman, witheffect from a date specified in such order, in the same capacity inwhich the workman was employed prior to such termination, and to pay
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the workman his wages and all other benefits' which the workman wouldhave otherwise received if his services had not been so terminated; andit shall be the duty of the employer to comply with such order. TheCommissioner shall cause notice of such order to be served on bothsuch employer and the workman.”
Section 6 of the Act does not confer any power to the Commissioner toaward compensation to an employee whose employment has been illegallyterminated. On the face of the said section, the Commissioner can onlyorder the employer to “ pay the workmen his wages.and all other benefitswhich the workman would have otherwise received if his services had not' been so terminated” and that too, only where the Commissioner has madeorder that such employer should'continue to employ the workman ascontemplated by Section 6. It has been submitted on behalf of the petitionerin these circumstances the award of compensation to the 1 st Respondentis not justified in terms of Section 6. Learned Counsel for the Petitionersought to compare with the aforesaid provision, Section 6 A (1) of the Actwhich was introduced by Section 4 of Law, No. 4 of 1976 to show that thepower to award compensation (as opposed to wages and other benefits)under the Act is confined to a situation where the employment wasterminated in consequence of the closure of the trade, industry or businessof the employer. In fact Section 6 A (1) of the Act expressly provides that:-
“Where the scheduled employment of any workman is terminated incontravention of the provisions of this Act in consequence of the closureby his employer of any trade, industry or business, the Commissionermay order such employer to pay to such workman on or before a specifieddate any sum of money as compensation as an alternative to thereinstatement of such workman and any gratuiry or any other benefitpayable to such workman by such employer.”
The identical issues that arise in the present case were dealt withrecently by this Court in Eksath Kamkaru Samithiya v Commissioner ofLabourIn that case', a trade union acting on behalf of 26 workmencomplained to the Commissioner of Labour that the termination of theirscheduled employment by the employer was illegal. The Commissioner ofLabour found that the termination of employment of the 23 workmen wasillegal and ordered the employer to pay compensation at the rate of 6months’ salary to workmen whose length of service ranged between 1 to 3years, 12 months salary to workmen whose length of service rangedbetween 3 to 6 years, 18 months’salary to workmen whose length ofservice exceeded 6.years. The Petitioner sought to quash the said orderby certiorari and further sought a mandate in the nature of mandamus on
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the Commissioner of Labour to compel him to make an order according tolaw. The Court of Appeal granted to the union relief as prayed for by it. Inthe course of his judgement in the case, U. D. Z. Gunawardane, J madethe following pertinent observation at pages 148 to 149-
“In section 6 of the Act the term ‘wages’ is obviously used in the senseof a fixed payment to be made by the employer at regular intervals, veryoften monthly, to a workman in return for the work or services renderedby the workman. It is to be observed that in section 6 A (1) of therelevant Act the term ‘compensation’ is used in contradistinciton 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’ andas such in the expression that is employed in section 6 of the Act i. e.‘wages and all other benefits’ – the term ‘benefits’ cannot be interpreted- as embracing ‘compensation’ which is paid as damages to make goodthe harm or injury caused by the loss of employment, and not paid,like wages, under the contract of employment itself, whilst such contractsubsists.”.
Adverting to the issue whether the Commissioner has any discretion toaward compensation in lieu of restoration in service, His LordshipGunawardane, J went on to observe at page 144 of the judgement-
It is somewhat irrational to suppose that the legislature, after having sosternly, decidedly and uncompromisingly declared in section 5 of theAct that any termination of employment in contravention of the provisonsof the relevant Act to be utterly void, would have relented in the verynext succeeding section of the Act and in the same breath, so tospeak, would have given the Commissioner a discretion whether or notto order the reinstatement of the workmen. When section 5 of the Actdeclares that all termination of services of workmen in breach of theprovisions of the relevat Act is “illegal null, void and accordingly shall beof no force or effect whatsoever”, there is, at the lowest, an implicitrecongnition of the legal right of the workman to remain in employment
notwithstanding the purported termination And, in fact, such
machinery for enforcement of the workman’s rights, in the givencircumstances, had been provided for by section 6 of the Act whichrequires the Commissioner to re – instate the workman although the
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■ drafsmen has, perhaps, by force of habit used the word “ may” to whichdraftsmen seem to be addicted to."
I am in agreement with the reasoning of this Court in Eksath KamkaruSamithiya v Commissioner of Labour (supra) and hold that the 2ndResopondent only has the power in terms of Section 6 of the Terminationof Employment of Workmen (Special Provisions) Act to order the employerto “continue 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, although it might be desirable to confersuch a discretionary power to the Commissioner of Labour as thosepresented in the instant case.
For the foregoing reasons, I make order granting a mandate in the natureof certiorari quashing the impugned order of the 2nd RespondentCommissoner General of Labour dated 30th December 2002 marked P6.There shall be no order for costs in all the circumstance of this case.
SRISKANDARAJAH, J. -1 agree,
Application allowed.