071-NLR-NLR-V-55-G.-B.-MIDDLETON-Appellant-and-A.-G.-MANUEL-Labour-Inspector-Respondent.pdf
262
SWAN J.—Middleton v. Manuel
1953Present: Swan J.
G. B. MIDDLETON, Appellant, and A. G. MANUEL (LabourInspector), Respondent
S. C. 1,012—M. C. Batnapura, 28,121
Wage'-' Boards Ordinance, No. 27 of 1941—Section 44—Prosecution for dismissal ofworher—Implied condition that dismissal should be wrongful..
An employer cannot be prosecuted under section 44 (1) of the Wages BoardsOrdinance for dismissing a worker for any of the reasons set cut in that seetionif the dismissal was at the same time otherwise lawful "and can be justifiedon the grounds, for instance, of due payment of wages in lieu of notice orinsubordination or irregularity of attendance and absence from work withoutlau ful excuse..
PPEAL from a judgment of the Magistrate’s Court, Ratnapura..
G. E. Ghitty, with. P. Somatilakam and Robert Silva, for the accusedappellant.
A. Mahendrarajah, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 21, 1953. Swan J.——
The appellant in this case was charged under section 44 (1) of theWages Boards Ordinance, No. 27 of 1941, with having dismissed one
263
SWAN J.—Middleton o. Manuel
P. Marimuttu by reason merely of the fact that Marimuttu had giveninformation to the Labour Authorities with regard to a certain matterunder the Ordinance, an offence punishable with a fine not exceedingRe. 1,000 or imprisonment of either description for a term not exceeding6 months or both such fine and imprisonment.
Sub-section 2 of section 44 reads as follows :—
“ In every prosecution of an employer for an offence under sub-section 1 the burden of proof that the worker was dismissed by reasonof some fact other than the fact mentioned in that sub-section shallbe upon that employer.”
The facts briefly stated are as follows : the appellant was the Superin-tendent of Houpe Estate, Kahawatta. Marimuttu was employed on theestate. The provisions of the Wages Boards Ordinance have beenproclaimed to be applicable to the tea-growing and manufacturing tradeas well as the rubber-growing and manufacturing trade. Houpe Estateis planted with both tea and rubber. The workers on the estate hadformed themselver into a trade union. P. Marimuttu was the leaderof that union. It was one of his duties to entertain complaints of othermembers of the union. A complaint was made to Marimuttu thatcertain labourers were not paid according to the Wages Board rates ofpayment for days on which they brought less than 5 pounds of rubberlatex and 1 pound of scrap. This practice was undoubtedly contraryto the provisions of the Wages Boards Ordinance. Marimuttu’s evidenceis that he made a note of the complaint he received in the minute-bookand handed it over to the appellant, but that the appellant had donenothing to remedy it. Marimuttu thereupon informed one Mr. Punniamwho was the representative of the Ceylon Workers’ Congress Union towhich the Houpe Estate Union was affiliated. Punniam wanted sub-stantial evidence of this practice before he made representations to theLabour Authorities. Marimuttu therefore convened a meeting of theunion at which it transpired that in addition to the usual Check Boll aPocket Check Boll was maintained which would supply the necessaryevidence. Another Marimuttu stealthily removed that Pocket CheckBoll and handed it over to P. Marimuttu. With this Pocket CheckBoll P. Marimuttu went to Mr. Thirunavakarasu, the Assistant Com-missioner of Labour, accompanied by Punniam. Labour InspectorManuel who was in the office at that time was sent for by Mr. Thiruna va-karasu and Marimuttu explained the system of under-payment toInspector Manuel. The Assistant Commissioner ordered InspectorManuel to make a routine inspection and inquire into this complaint.Mr. Thiruna vakarasu advised Marimuttu to replace the book and thisapparently was done. Inspector Manuel went on 25.6-51 for theroutine inspection, having previously informed the appellant by letter3) 12. During the course of that inspection Manuel appears to havetold the appellant that something must be wrong in the estate office asa Check Boll Begister of the estate had been produced by Marimuttu atthe Labour Office.
264
SWAN rT.—Middleton v. Manuel
As regards the under-payment it would appear that the explanation‘of the appellant was that he was merely carrying out* what was doneby the previous Superintendent and that the rates of payment wereagreed upon by the workers themselves. However, the appellant wasprepared to make good the under-payments, and so far the LabourAuthorities were concerned the matter ended there.
There happened to be three Marimuttus working on the estate and theappellant wanted Manuel to identify the particular Marimuttu who hadgone to the Labour Office. Only one Marimuttu was on the spot andManuel said he was not the person who made the complaint. Thereafterthe appellant tried to find out from the Labour Office whether it was P.Marimuttu who had gone there with the Pocket Check Roll. He hadapparently fixed the identity of P. Marimuttu as the complainant becauseof the three Marimuttus one had been already identified by Manual asnot the person who went to the Labour Office and of the remaining twoMarimuttus only P. Marimuttu bad not worked on the estate on the daythe Pocket Check Roll was alleged to have been taken to the LabourOffice.
On 29.8.51 P. Marimuttu was dismissed from the estate. In P3 thereasons for his dismissal are stated to be (1) failure to report at theoffice on 11.8.51 although instructed to do so, and (2) irregularity ofout-turn, that is, working 17£ days in June, 1 day in July and 4£ daysin August up to the date of dismissal.
Mr. Chitty appearing for the appellant contends that it is implicit insection 44 (1) that the dismissal should be wrongful. With that con-tention I agree because if Marimuttu was lawfully dismissed I do notthink the section would apply. In this particular case according to theevidence, quite apart from any legal presumption, P. Marimuttu’scontract of service was from month to month. In the course of bisevidence he stated: “ I was under the impression that I should giveone month’s notice. Similarly if the estate had to dismiss me they hadto give me one month’s notice. This is what I understood right through.There was nothing to prevent me at any time leaving this estate andjoining another estate by giving a month’s notice.” Marimuttu alsoadmitted that on the day he was dismissed he was paid a month’s wagesin lieu of notice. This admission in my opinion concludes the matter.Under the contract of service Marimuttu was entitled to either onemonth’s notice or one month’s salary in lieu of notice. His dismissaltherefore was not wrongful, and in my opinion section 44 has noapplication.
Even assuming that Marimuttu had not been paid one month’s salaryin lieu of notice but was summarily dismissed, one of the reasons for hisdismissal being bis action in reporting certain irregularities to the LabourAuthorities the evidence satisfies me that the appellant had other goodgrounds for dismissing Marimuttu, namely (1) insubordination, and
irregularity of attendance and absence from work without lawfulexcuse. ‘
I set aside the conviction and acquit the appellant.
Appeal allowed.