004-NLR-NLR-V-66-THE-SUPERINTENDENT-HIGH-FOREST-ESTATE-KANDAPOLA-Appellant-and-MALAPANE-SRI-L.pdf
14 The Superintendent, High Forest Estate, Kandapola v. Malapane Sri Lanka
Watu Kamkaru Sangamaya, XJda Pussellawa
1963Present: T. S. Fernando, J.THE SUPERINTENDENT, HIGH FOREST ESTATE, KANDA-POLA, Appellant, and MALAPANE SRI LANKA WATUKAMKARU SANGAMAYA, UDA PUSSELLAWA,
Respondent
S. C. 15/62—In the matter of an Appeal under Section 31 D (2)of the Industrial Disputes Act, as amended by Acts Nos. 14 and 62
of 1957 and 4 of 1962
Estate Labour (Indian) Ordinance (Cap. 133)—Section 23 (1)—Termination ofcontract of service of spouse of dismissed labourer—Incapacity of Labour Tri-bunal to grant equitable relief—Industrial Disputes Act (Cap. 131), as amendedby Act No. 62 of 1957, s. 31 C (1).
It is not open to a Labour Tribunal to grant equitable relief under section31 C (1) of the Industrial Disputes Act to a labourer’s spouse when her contractof service has been compulsorily terminated by the employer, in terms of section23 (1) of the Estate Labour (Indian) Ordinance, in consequence of the dis-missal of her husband.
T. S- FERNANDO, J.—The Superintendent, High Forest Estate, Kandapola 15
v. Malapane Sri Lanka Watu Kamkaru Sangamaya, Uda Pussellawa
-A-PPEAL from an order of a Labour Tribunal.
Lakshman Kadirgamar, for Employer-Appellant.
S.Kanagaratnam, for Applicant-Respondent.
May 13, 1963. T. S. Fernando, J.—
The point arising on this appeal has been decided by the judgment ofthe Divisional Bench of this Court in S. C. No. 3/1962—Labour TribunalNo. 3/5853,—vide S. C. Minutes dated 27th March 1963 1.
In that case this Court declined to follow the decision in the case ofThe Ceylon Workers Congress v. Superintendent of KaUebokka Estate2and held that “ a labourer lawfully quits the services of his employerwhen he leaves after his services come to an end either when he or theemployer in the exercise of the right to terminate the contract of servicelawfully terminates it. Whether the employer lawfully terminatesthe contract of service or the labourer does so, the Statute imposes onthe employer the duty under pain of punishment of determining thecontract of service of his spouse where the spouse is also a labourer undera contract of service with that employer and no application is made underthe proviso to section 23 (1) ” of the Estate Labour (Indian) Ordinance.
The Labour Tribunal, from the order of which this appeal is taken,held itself bound by the decision of this Court in the case The CeylonWorkers Congress v. Superintendent of KaUebokka, Estate {supra). Asthat case has now been overruled by the judgment of the DivisionalBench referred to above, I would set aside the order of the LabourTribunal made on the 5th September 1962 and direct that the applicationof the applicant-respondent be dismissed.
The decision of the Divisional Bench notwithstanding, Mr. Kanagarat-nam for the applicant-respondent attempted to maintain an argumentthat that decision does not affect the jurisdiction of a Labour Tribunal inthe exercise of its powers under section 31C (1) of the Industrial Dis-putes Act of 1950 as amended by the Act No. 62 of 1957, “ to make suchorder as may appear to the tribunal to be just and equitable ”. Toaccede to this argument would involve the maintenance of the propositionthat although this Court has judicially ruled that “ the statute imposeson the employer the duty under pain of punishment of determiningthe contract of service ” of the spouse as well, the Labour Tribunal canlawfully make an order the effect of which is to sanction the breach ofa law of this land. I am quite unable to accept the argument as sound.So long as Section 23 (1) of the Estate Labour (Indian) Ordinance standsin its present form, an order which would enable that section to be floutedwould not, in my opinion, be a just and equitable order.
1(1963) 65 N. L. R. 8.
*{1962) 64 N. L. R. 95.
16
Coder v. Commissioner for Mosques and Muslim Charitable Trusts
Mr. Ivanagaratnam seemed to me to suggest that it is open to a LabourTribunal to make orders appearing to it to be just and equitable in orderto give effect to modern ideas of social justice. That may well be sobut, I venture to think, not when those orders are in conflict with thelaw as declared by the legislature and as interpreted by the Courts.
It was agreed that there should be no costs awarded on this appeal.
Order set aside.