036-SLLR-SLLR-2003-1-R.-F.-DE-MEL-AND-ANOTHER-v.-IMADUWA-LABOUR-OFFICER-AND-ANOTHER.pdf
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R. F. DE MEL AND ANOTHER
v.IMADUWA, LABOUR OFFICER AND ANOTHER
SUPREME COURTS.N. SILVA, C.J.
BANDARANAYAKE, J„ ANDYAPA.J.
S.C. APPEAL CASE NO. 65/2001
H.C. (M.C.) APPEAL NO. 705/97
M.C. COLOMBO (FORT) CASE NO. 29798
28 NOVEMBER 2002 AND 14 JANUARY AND 3 FEBRUARY, 2003
Industrial Dispute – Non compliance with an order of the Labour Tribunal -Prosecution of the employer – Industrial Dispute Act, sections 40 and 43 -False representation by prosecutor to Magistrate that the Labour Tribunalorder had been complied with – Workman’s right to representation in such pro-ceedings – Employer’s duty to comply with order of Labour Tribunal.
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R.F. de Mel and another v Imaduwa, Labour Officer and
another (Yapa, J.)
309
The 2nd respondent (“the workman”) had been employed by the appellant("the employer”) for 22 years. He had been litigating for 14 years for enforce-ment of an order by the Labour Tribunal for reinstatement and back wages. On8.6.1988 he complained to the Labour Tribunal that the employer had wrong-fully terminated his services. On 26.6.1991, parties settled the dispute beforethe Tribunal, the employer agreeing to reinstate the workman, without a breakin service, with effect from 1.7.1991, and to pay six months back wages at therate of Rs. 1200/- per month. Although the workman reported for work on
and after the receipt of the formal order of the Tribunal dated
the employer failed to reinstate him or to pay back wages.Consequently, the 1st respondent (“the Labour Officer”) prosecuted theemployer before the Magistrate under section 40(1 )(e) read with section 43(1),(2) and (4) of the Industrial Disputes Act'
On 8.6.1994, the Magistrate discharged the employer on a report by theLabour Officer that the settlement order had been complied with. The workmanappearing by counsel denied any compliance but the Magistrate ruled that theworkman had no right of representation. On an appeal by the workman theHigh Court set aside the order of the Magistrate and directed ah adjudicationbefore another Magistrate. At the fresh inquiry the Magistrate held that theemployer had failed to comply with the Order of the Labour Tribunal andordered reinstatement of the workman with effect from 15.1.1997 and to payhim back wages at the rate of Rs. 1250/- per month from T.7.1991.
The evidence showed that the employer had attempted to “settle” the disputeby depositing Rs. 55,000/- with the Assistant Commissioner of Labour. Theworkman who was represented by a lawyer demanded an additional sum ofRs. 30,000/-.
Held:
Although the formal order of the Labour Tribunal incorporating the set-tlement was dated 4.7.1991, the employer had undertaken to reinstatethe workman with effect from 1.7.1991 and to pay back wages for sixmonths. The employer had failed to comply with that settlement..
A reference in the charge to the failure to comply with the order dated
was not raised as an objection at the prosecution and it did notcause prejudice to the employer. Hence that defect was curable under sec-tion 166 of the Code of Criminal Procedure Act. It was not an objection that
. could be raised at the stage of the appeal.
In the absence of an order made by the Court, the employer was not enti-tled to settle the dispute by unilaterally depositing money with theAssistant Commissioner of Labour.
There is no basis to vary the decision of the High Court and theMagistrate made in the fresh case.
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(Obiter) In any event, a sum of Rs. 55,000/- was highly inadequate ascompensation to a workman who had put in 22 year of service and dis-missed from work for no apparent reason.
APPEAL from the judgment of the High Court
Harsha Soza for appellants
Sanath Weerasinghe for 2nd respondent (workman)
Viveka Siriwardene, De Silva, State Counsel for 1st respondent (the LabourOfficer)
Cur.adv.vult
April 01,2003HECTOR YAPA, J.
The aggrieved party-respondent (hereinafter after referred toas the workman) was employed as a pump attendant at the petrolfilling station run by the accused appellants (hereinafter referred toas the appellants) under the name C.F. de Mel & Sons, No. 161,Parsons Road, Colombo 2. On 8th June 1988 the workman filed anapplication in the Labour Tribunal alleging that his services werewrongfully terminated by the appellants and sought reinstatementwith back wages. When this application came up for inquiry on28.06.1991 before the Labour Tribunal the parties sought to settlethe dispute. The terms of settlement were that the appellantsagreed to reinstate the workman without a break in service witheffect from 01.07.1991 and to pay him six months back wages atthe rate of Rs. 1,250/- per month. The settlement order was enteredaccordingly by the Labour Tribunal. (Vide P4).
In terms of the settlement order the workman had reported forwork on 01.07.1991, but the appellants had requested him to reportfor work upon the receipt of the settlement order. However, at therequest of the workman a letter was issued by the appellants statingthat he reported for work on 01.07.1991 and that he should report forwork only after the receipt of the settlement order. (Vide P7). Theworkman took up the position that after the receipt of the settlementorder he reported for work on several occasions, but he was not
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given work. Thereafter he had complained to the Commissioner ofLabour that the settlement order had not been complied with.Accordingly, the proceedings were instituted in the Magistrate’s Courtof Colombo (Fort) against the appellants by the complainant respon-dent in terms of section 40 (1) (q), an offence punishable in xerms ofsection 43 (1) (2) & (4) of the Industrial Disputes Act, No. 43 of 1950as amended.
When the said case filed against the appellants came up forinquiry before the learned Magistrate on 14.07.1993, time had beenobtained by the appellants stating that a settlement was possible.However, the parties had not been able to reach asettlement.Thereafter it would appear that on 13.10.1993 theMagistrate had ordered that all documents and other evidencerelating to the charge be submitted to Court. Surprisingly when thecase came up for inquiry before the Magistrate on 08.06.1994, theLabour Officer purporting to act on behalf of the Commissioner ofLabour informed the Magistrate that the settlement order, meaningthe settlement reached on 28.06.1991 had been complied with. Atthat stage the counsel who appeared for the workman had indicat-ed to Court that there had been no such compliance with the saidorder. The learned Magistrate however disallowed the interventionof the workman or his counsel stating that the case had been insti-tuted by the Commissioner of Labour and therefore they had noright of representation in the case. Accordingly on 08.06.1994 theMagistrate having accepted the statement of the Labour Officer thatthere had been compliance with the settlement order dischargedthe appellants.
Thereafter, the workman moved the High Court, Colombo inrevision against the said order of discharge. The learned HighCourt Judge after hearing the revision application by her orderdated 01.03.1995 set aside the said order of discharge dated03.06.1994, stating that the failure to do so would result in a mis-carriage of justice. She also remitted the case for re-adjudicationbefore another Magistrate. The new Magistrate after inquiry by hisorder dated 31.12.1996 held that the appellants have deliberatelyfailed to comply with the said settlement order of the LabourTribunal dated 28.06.1991 and directed the appellants to reinstatethe workman with effect from 15.01.1997 and to pay him his back-
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wages at the rate of Rs. 1250/- per month from 01.07.1991. Theappellants appealed to the High Court against the said order dated
and the learned High Court Judge after hearing theappeal by his order dated 03.04.2001 dismissed the said appeal.
The appellants who were aggrieved by the said order of theHigh Court Judge moved for special leave to appeal and this Courtgranted leave to appeal on the question “has the aggrieved partyrespondent (workman) by his conduct frustrated the efforts of theaccused appellants petitioners (appellants) in complying with theorder of the Labour Tribunal?”
At the hearing, learned counsel for the appellants submittedthat the workman had not reported for work in terms of the settle-ment order even though he had been specifically requested to doso. Besides the appellants had given in writing on 01.07.1991 (P7)that they would comply with the said settlement order once the saidorder of the Labour Tribunal was received. However, the counselargued that the workman had not taken any action in this regard toresume work after the receipt of the settlement order. Further it waspointed out that after the receipt of the settlement order a letterdated 23.07.1991 had been written to the workman requesting himto report for work (vide V3) and in addition the failure of the work-man to report for work was even brought to the notice of theCommissioner of Labour on 07.02.1992 (vide V5). Learned coun-sel therefore contended that the workman had deliberately frustrat-ed the endeavour of the appellants to comply with the said settle-ment order of the Labour Tribunal.
It is very clear from the settlement entered into by the partiesbefore the Labour Tribunal on 28.06.1991, that the appellants hadto comply with two conditions. First the appellants had to reinstatethe workman without a break in service with effect from 01.07.1991.Secondly they had to pay six months back wages at the rate of Rs.1250.00 per month. Therefore as submitted by learned counsel forthe workman, when he (workman) reported for work on 01.07.1991it was incumbent on the part of the appellants to reinstate the work-man by giving him employment. The request they made to theworkman to report for work after the receipt of the settlement orderwas an additional condition that was not there in the settlemententered into by the parties before the Labour Tribunal on
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In other words what the appellants had done by plac-ing this additional condition on the workman was to dodge the issueof reinstatement by giving the excuse that they should wait until thesettlement order was received. This was not the way to give effectto a settlement entered into by the appellants before the Presidentof the Labour Tribunal. Besides the date for reinstatement of theworkman was clear and unambiguous. Further it would appear thaton 28.06.1991, the appellants agreed to reinstate the workman on
knowing very well that the settlement order would notreach the parties by 01.07.1991 and it is now a known fact that thePresident of the Labour Tribunal had signed the settlement orderonly on 04.07.1991. It is well to remember that in view of the set-tlement entered into by the parties on 28.06.1991, the workmanhad to be reinstated on 01.07.1991, on his reporting for work. Therewas no requirement for the workman to meet the appellants there-after begging for his job, even though from the available evidenceit is very clear that the workman had done so. Hence, the conductof the appellants in this instance was a clear violation of the settle-ment entered into by the parties on 28.06.1991. Further, the posi-tion taken up by the appellants at the hearing, that they waited forthe settlement order to be sure of its contents is an unacceptableproposition, in view of their undertaking before the Labour Tribunalto reinstate the workman on 01.07.1991.
The only reasonable explanation for their failure to reinstatethe workman on 01.07.1991 and even thereafter appears t<^6e thatthey were not genuinely interested in reinstating the workmandespite their undertaking. This conclusion finds support from theevidence of the workman who stated that even after the receipt ofthe settlement order his request for reinstatement was refused bythe appellant. It was thereafter that the workman had complainedto the Bambalapitiya Police on 22.07.1991 (vide P8) and to theCommissioner of Labour on 23.07.1991 and 13.08.1991 (vide P 11& P 12) against the appellants.
Much has been said on behalf of the appellants about thefailure of the workman to mention in his police complaint that hemet the appellants seeking reinstatement after the receipt of thesettlement order. It is to be noted that the Police complaint hadbeen made by the workman on 22.07.1991 for his future protection.
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Further he has stated there that no inquiry was necessary.Therefore the failure to mention in the Police statement the dateshe met the appellants seeking reinstatement after 01.07.1991would not matter. The workman had given evidence that he met theappellants several times after 01.07.1991 and that he did notreceive the alleged letter dated 23.07.1991 (V3) sent by the appel-lants requesting him to report for work. Appellants had failed toprove the sending of his letter (V3) under registered cover. But it isimportant to note that, consequent to the two complaints made tothe Commissioner of Labour, (P11 & P12) he had taken action toprosecute the appellants.
Another submission made on behalf of the appellants wasthat, having regard to the acceptance of Rs. 55,000/- from theappellants by the Labour Department on 01.10.1993, the com-plainant respondent had no right to proceed with this prosecutionagainst the appellants. The tenor of this argument was that thissum of Rs. 55,000/- was deposited with the AssistantCommissioner of Labour in full and final settlement of this case withthe workman and therefore while this sum of Rs. 55,000/- wasretained by the Commissioner of Labour, he was precluded fromprosecuting the appellants. It is to be noted here that this deposit ofRs. 55,000/- by the appellants with the Assistant Commissioner ofLabour on 01.10.1993 was not made consequent to any order ofCourt. Further it would appear from the proceedings that the work-man was consistently requesting for reinstatement. But for someunknown reason the appellants were taking the initiative of sug-gesting a pecuniary settlement as an alternative to reinstatement.This position is made clear from the proceedings before theMagistrate’s Court on 14.07.1993. After the plaint had been filedand when the case was taken up on 14.07.1993 the appellantsmade an application to the Magistrate and sought three monthstime stating that a settlement was possible. If the appellants wereinterested in reinstating the workman they could have indicated tocourt even on that day. But they were keen to pay some money inlieu of reinstatement. However no settlement was possible as thecompensation offered by the appellant was not acceptable to theworkman. From the evidence of the Labour Officer Herath, thisposition is made very clear. It was the evidence of this witness
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Herath that on 02.09.1993 appellants and the workman failed toreach a settlement. However thereafter the appellants had sent asum of Rs. 55,000/- to the Assistant Commissioner of Labour,Colombo South on 01.10.1993. As a result he (witness Herath)summoned the workman, on 07.10.1993 and discussed with him apossible settlement. At that stage the workman who was repre-sented by a lawyer wanted a payment of Rs. 30,000/- in addition tothe Rs. 55,000/- that was offered by the appellants. Any way theLabour Officer Herath in his evidence clearly stated that at no stagehe had requested the appellants to deposit a sum of Rs. 55,000/-with the Labour Department. His inquiry notes marked P14 corrob-orate this position. Therefore the payment of Rs, 55,000/- was aunilateral act on the part of the appellants without any directionfrom the Labour Department. Hence the argument that a sum ofRs. 55,000/- had been deposited with the Commissioner of Labourin settlement of this case and the Commissioner of Labour was pre-cluded from prosecuting the appellants has no substance or merit.Further it is also appropriate to mention here that at every stage theworkman was demanding reinstatement. However when the appel-lants were trying to force a pecuniary settlement on the workman,he had to respond and therefore he demanded two years salary i.e.Rs. 30,000/- and Rs. 55,000/- offered by the appellants. Surely asum of Rs. 55,000/- was highly inadequate as compensation to aworkman who had put in 22 years of service and dismissed fromwork for no apparent reason. It is not out of place to mention herethe fact that the material available in this case discloses a sad taleof a workman who had been harassed by the appellants at everyturn since his dismissal. He had been litigating for 14 long years. Tosay that the workman was motivated by a desire to extract as muchmoney as he could from the appellants would be a comment veryunjustifiable in the circumstances of this case.
The counsel for the appellants also made the submission thatthe charge against the appellants in the Magistrate’s Court wasdefective in that it referred to an order dated 04.07.1991 which hadto be implemented on 01.07.1991. Regard to this objection learnedcounsel for the workman submitted that this objection was nevertaken up before the Magistrate’s Court, it has been raised here forthe first time. Any objection to a charge should be taken first beforethe original court and not at a later stage. Hence it was contended
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that the appellants were precluded from raising this objection to thecharge at this stage. It is seen that the main allegation in the chargeagainst the appellants was their failure to reinstate the workman on
Further that in terms of the settlement before theLabour Tribunal on 28.06.1991, the appellants had agreed to rein-state the workman on 01.07.1991. However, the formal order incor-porating the terms of settlement was signed by the President of theLabour Tribunal on 04.07.1991 and therefore reference had to bemade to the said order in the charge. What the appellants had todo was to reinstate the workman on 01.07.1991 in terms of the set-tlement entered into on 28.06.1991. The reference to the orderdated 04.07.1991 in the charge did not in any way mislead or prej-udiced the appellants as they knew very well the terms of settle-ment entered into on 28.06.1991. It may be observed that section166 of the Code of Criminal Procedure Act, No. 15 of 1979 requiresthat an error or defect in the charge to be material, the accused hadto be misled by such error or omission. The defect referred to in thecharge in this instance was not a material error so as to cause anyprejudice to the appellants resulting in a failure of justice. Thecharge the appellants had to meet was very clear to them, so thatthey took no objection to it in the Magistrate’s Court. Hence, thereappears to be no merit in this objection, which has been taken upso late in the day.
In view of the material referred to above, it is very clear fromthe conduct of the appellants that they had refused to reinstate theworkman on 01.07.1991 or even thereafter. Linder these circum-stances the question of law namely, has the aggrieved partyrespondent (workman) by his conduct frustrated the afforts of theaccused appellants petitioners (appellants) in complying with theorder of the Labour Tribunal has to be answered in the negative.
Therefore in my view there is no basis to vary the decision ofthe learned High Court Judge and the Magistrate. Accordingly theappeal is dismissed with costs.
S.N. SILVA, C.J.-I agree.
BANDARANAYAKE, J.-I agree.
Appeal dismissed.