065-NLR-NLR-V-70-THE-SUPERINTENDENT-DEESIDE-ESTATE-MASKELIYA-Appellant-and-ILANKAI-THOZHILAR-.pdf
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The Superintendent, Deeside Estate, Maskeliya v.
Ilankai Thozhilar Kazhakam
Present :Siva Supramaniam, J.THE SUPERINTENDENT, DEESIDE ESTATE, MASKELIYA,Appellant, and ILANKAI THOZHILAR KAZHAKAM, RespondentS. C. 63 j67—Labour Tribunal Case, 3876fK
Labour Tribunal— Order made by it—Requirement that it should be against a natural or
legal person—Industrial Disjrutes Act, s. 33 {2).
Under the Industrial Disputes Act the party against whom a Labour Tribunalis empowered to make an order must be a natural or legal person, for it is onlyagainst such a person that the order can be enforced.
A Labour Tribunal made order against “ The Superintendent, Deeside Estate,Maskeliya ”, directing him to re-instate a labourer, whose services had beensummarily terminated, and to pay him “ back wages
Held, that the order was unenforceable, because the office of “ The Superin-tendent of Deeside Estate ” was not a legal person. A Corporation Sole mustbo expressly created by legislative enactment.
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SIVA SUPRAMAJNIAM, .T.—The Superintendent, Deeside Estate,
Maskeliya v. Ilankai Thozhilar Kazhakam
A.PPEAL from an order of a Labour Tribunal.
Siva Rajaratnam, for tho appellant.
No appearance for the respondent .
Cur. adv. vuli.
January 31, 1968. Siva Supbamaniam, J.—
This is an appeal from an order made by the President of the LabourTribunal of Nuwara Eliya under s. 31 of the Industrial Disputes Act.No. 43 of 1950 (hereinafter referred to as the Act), directing that oneMeiappen, a labourer on Deeside Estate, Maskeliya, whoso serviceshad been summarily terminated on 22nd January 1965, be reinstatedand be paid “ one and a half years’ back wages ” amounting to Rs. 1,080.
The application for relief was made by the respondent Trade Union ofwhich Meiappen was a member. “ The Superintendent, Deeside Estate,Maskeliya”, was named as the Employer against whom the applicationwas made. In the written application that was filed it was stated thatMeiappen “ was summarily dismissed from work by tho Managementwith effect from 22nd January 1965 ” and that the applicant-Unionconsidered the dismissal “ unlawful and unreasonable ”. The name ofthe employer who made the order of dismissal was not mentioned.
The person who held the office of Superintendent of the said estatefiled a statement that Meiappen was lawfully dismissed on the groundthat on the night of 24th December, 1964 he, along with three youngfemale labourers of the estate, had entered the bungalow ofA. Wijesundera, the Assistant Superintendent of the ostate, in thelatter’s absence and had danced and made merry in the sitting room ofthe bungalow and consumed beer and arrack belonging to theAssistant Superintendent. After enquiry, the President of the Tribunalheld that he found it difficult to accept the evidence of the AssistantSuperintendent and his witnesses and made the order referred to earlier.
At the hearing of this appeal, which was filed by the person who heldthe office of Superintendent, Counsel for the appellant strongly attackedthe finding of the President on the facts as unreasonable. Under s. 31Dof the Act, however, no appeal lies on questions of fact.
The appeal was also pressed on a question of law which, in my opinion,is entitled to succeed. Under the Act, the Tribunal is empowered tomake any order as may appear to it to be just and equitable. Theparty against whom the order can be made is the employor or, undercertain circumstances, a person who has ceased to bo the omployer.The order, therefore, has to be made against a natural or legal personfor it is only against such a person that the order can be enforced.
Wijewardhena v. The Inspector of Police, Panadura
281
In the instant case, the party against whom the application was madeby the respondent and against whom the order has been made by thePresident is “ The Superintendent, Deeside Estate, Maskeliya Theoffice of “ The Superintendent ” is not a legal person. Under our law, aCorporation Sole must be expressly created by legislative enactment—Vide the Judgment of the Privy Council in The Land Commissioner v.Ladamultu Pillai *. The order made by the President is, therefore,u nenforceable.
Under s. 33 (2) of the Act, where an order is made for payment ofmoney by any employer to any workman, the amount of such money,if unpaid, can be recovered by a Magistrate’s Court in like manner as afine imposed by the Court. In the instant case, since “ The Superin-tendent of Deeside Estate ” is not a Corporation Sole, there is no onefrom whom the amount ordered can be recovered. It is a fundamentalprinciple that a Court should not make an order which it cannot enforce.
I set aside the order made by the President of the Labour Tribunaland dismiss the applicant-respondent’s application. I make no orderin regard to costs.
Order set aside.