H. N. G. FERNANDO, J.—Superintendent, Oakwell Instate, Haldumutta 429
v. Lanka Estate Workers’ U nion
1963Present: H. EJ. G. Fernando, J.
SUPERINTENDENT, OAKWELL ESTATE, HALDUMULLA and
two others, Appellants, and LANKA ESTATE WORKERS’ UNION,
S. C. 13/62, 35/62, 1/63—Labour Tribunal 1/8082, 4/2609, 6/4876
Estate Labour (Indian) Ordinance (Cap. 133)—Section 23—Termination of servicesof an employee—Right of employer to terminate services of the employee's spousealso—Meaning of term “ labourer ”—Indian Immigrant Labour Ordinance(Cap. 132), s. 2.
Under section 23 of the Estate Labour (Indian) Ordinance it is lawful for anemployer to terminate the services of the spouse of an employee who quits hisemployment even when the employee quits in consequence of the terminationof the employment by the employer.
Section 23 of the Estate Labour (Indian) Ordinance is applicable to personsborn in Ceylon who are commonly known as “ Indian estate labourers
Appeals from three Labour Tribunal orders.
V. Per era, Q.C., with L. Kadirgamar, for the employers-appellantsin S. C. 13/62 and 1/63.
H. V. Perera, Q.C., with H. W. Jayewardene, Q.C., and S. Sharvananda,for the employer-appellant in S. C. 35/62.
Colvin R. de Silva, with R. WeeraJcoon, for the applicants-respondentsin S. C. 13/62 and 1/63.
Colvin R. de Silva, with M. T. M. Sivardeen and R. Weerakoon, for theapplicant-respondent in S. C. 35/62.
Cur. adv. vuU.
September 30, 1963. H. N. G. Febnando, J —
The ground of appeal in each of these three cases is the same, namelythat according to the judgment of 3 Judges of this Court in the case ofSuperintendent, Walapane Estate v. Walapane Sri Lanka Watu KamkantSangamaya1, it is lawful for an employer to terminate the servicesof the spouse of an employee who quits his employment, even when theemployee quits in consequence of the termination of the employmentby the employer. According to that decision, the orders for the re-instatement of the respondents in each of these cases are erroneous inlaw.
1 (1963) 66 N. L. R. 8.
430 A- A. G. tf'BRNANDO, S.—Suporintendmi. Oaint&U tbicto, AaldxmuLLa
v. Lanka Sstate Woriemv’ Onion
But there has been one question, not considered previously, which hasbeen argued by counsel for the Respondent partly in consequence ofsome encouragement from me. The question is whether Section 23 ofthe Estate Labour (Indian) Ordinance, (Cap. 133), can be held to applyto persons born in Ceylon who have not actually emigrated from India,but are only descendants of such actual emigrants.
The term “ labourer ” is defined as follows :—
“ Labourer ” means any labourer and kangany (commonly known asIndian coolies) whose name is borne on an estate register,and includes the Muslims commonly known as “ Tulicans ”.
This definition is not in keeping with current usage in that the word“ cooly ” is not, or at least is not supposed to be, now applied to anycategory of workers. But apart from that consideration, the definitiondid not at the time of its enactment, and does not at the present time,give much room for doubt as to the persons who fall within its scope.There is still a category of persons commonly known as “Indian estatelabourers ” just as much as there was formerly a category known as“ Indian coolies ”, the difference being purely one of name and not ofsubstance. Indeed, in some contexts, such as that of the case of Muda-nayake v. Sivagnanasunderam, it has been contended on behalf of thiscategory of persons that they are a “ community ” within the meaningof section 29 of the Constitution.
There is nothing in Chapter 133 itself to show that “ Indian coolies ”was a term employed with the intention of including only actual emi-grants from India. What misled me at first was the definition in Chapter132 of the term “ Indian immigrant labourer ” which clearly refers onlyto actual emigrants from India. But that later Ordinance deals with theemigration to Ceylon, and the first employment in Ceylon of personscoming from India, and the narrow definition was sufficient and necessaryfor its purposes. Section 2 of Chapter 132 provides that the Ordinanceshall, so far as is consistent with the tenor thereof, be read as one withChapter 133. But there is no indication at all of any intention to modifyany provision of the earlier Chapter 133.
I hold therefore that section 23 of Chapter 133 does apply to personsborn in Ceylon who are commonly known as “ Indian estate labourers ”.
Following the decision in the Walapane case, I would set asidethe orders made by the Labour Tribunals in each of these three cases.I make no order for costs.
Orders set aside.
SUPERINTENDENT, OAKWELL ESTATE HALMULLA and two others, Appellants, and LANKA ES