WIJAYATIL.AKE, J.—Swadeshi Industrial fronts Ltd. v. De Silva
1973Present: Wijayatilake, J.
SWADESHI INDUSTRIAL WORKS LTD., Appellant, andMrs. DAPHNE DE SILVA, Respondent
S. C. 275/71—L. T. Case No. 7/1757/70
-Labour Tribunal—Termination of an employee’s services—Claim for-gratuity in addition to Provident Fund benefits—Maintainability—Delay in making the application for relief—Circumstances whenit may be excused—Industrial Disputes Regulations, Regulation 16.
In an application for relief made to a Labour Tribunal by anemployee after the termination of her services—
Held, that the receipt of a sum by way of Provident Fund benefitsdoes not necessarily preclude an employee from maintaining a claimfor a gratuity as well.
Held further, that the long delay in making the present applicationwas excusable in view of the state of uncertainty previously inregard to the interpretation and validity of the Industrial DisputesRegulation 16 and also as to the nature of a claim for gratuity inthe field of Industrial Law. The Prescription Ordinance is of littlerelevance in this field except perhaps as a guide.
.A.PPEAL from an order of a Labour Tribunal.
Issidore Fernando, with N. T. S. Kularatne and H. L. de Silva,for the employer-appellant.
W. Athulathmudali, for the applicant-respondent.
Cur. adv. vult.
September 28, 1973. Wuayatilake, J.—
Mr. Fernando, counsel for the appellant, submits that thelearned President has made a final order in this case without, inthe first instance, giving a ruling on the preliminary objection onthe averment of undue delay in the preferment of this Applica-tion. However, on a perusal of the proceedings, I do not think itis open to the appellant to pursue this ground as it is evidentthat the submissions of counsel made before the President havenot been restricted to this objection alone. If the President hadmade such a serious omission, at least an affidavit could havebeen filed setting out this alleged irregularity.
Mr. Fernando submits that, in any event, the respondent is notentitled to claim a gratuity as she has received a sum ofRs. 5,435.14 by way of Provident Fund benefits at the timeshe voluntarily left the services of the employer on 30.10.65. Shehad been employed under this employer since 1.10.44 in the■capacity of a clerk-cum-telephone operator and at the time she
WIJAYATILAKE, J.—-Swadeshi Industrial Works Ltd. v. De Silva
left the services she was in receipt of salary of Rs. 350 permensem. Mr. Fernando submits that the receipt of the ProvidentFund benefits precludes her from maintaining a claim for gratuityas well. He relies on a judgment of Thamotheram J. inS. C. 13/71. L.T. No. ll/A/66. With respect, I do not think thisjudgment upholds the principle as set out by Mr. Fernando. Onthe other hand, in my opinion, as submitted by Mr. Athulath-mudali, the principle as set out by de Kretser J. in Hatton Trans-port Agency Co. Ltd. v. George 74 N. L. R. 473 appears to be morein point. It also meets the submission made by Mr. Fernando inregard to the propriety of a claim for gratuity when thetermination is of a voluntary character.
Mr. Fernando has also submitted that there has beenconsiderable delay in making this application—the terminationbeing on 30.10.65 and the application being on 6.10.70 nearly 27months after the judgment of Weeramantry J. in 71 N. L. R. 25.Mr. Athulathmudali submits that the applicant cannot be blamedfor this delay as the law itself was in a state of uncertainty inregard to the interpretation and validity of Regulation 16 of theIndustrial Disputes Act and also as to the nature of a claim forgratuity in the field of Industrial Law. The following cases speakfor themselves :
Ram Banda v. The River Valleys Development Board,71 N. L. R. 25.
River Valleys Development Board v. Sheriff 74 N. L. R.505.
The Ceylon Workers’ Congress v. Superintendent, BeragalaEstate 76 N. L. R. 1.
Richard Peiris & Co. Ltd. v. Wijesiriwardene 62 N. L. R.233.
The United Engineering Workers’ Union v. Devanayagam69 N. L. R. 289.
As Mr. Athulathmudali submits any legal advice during theformative period of our law and procedure would have been of anuncertain character and one cannot, in the field of IndustrialLaw, penalise this lady who has served her employer for 21 yearsfor not preferring her claim promptly. Mr. Fernando has stressedthe principle that—“ Delay defeats equity ”, but in my view, inthe context of this case there has been no such undue delay. Iagree with the submission that ordinarily a period of 27 monthsfor a claim of this nature would be too long. As to whether theclaim is stale depends on the facts of each case as often the delay
Savundaranayagam v. Dayapala
is attributable to the employer giving hope of an amicable settle-ment and thereafter resiling from it. In my opinion, the Prescrip-tion Ordinance relied on by counsel is of little relevance in thisfield except perhaps as a guide.
Mr. Fernando further submits that the President has failed togive his mind to the basis of the computation in fixing thegratuity. I do not think there is any merit in this submissioneither as the figures speak for themselves. The award is for asum of Rs. 7,000 for a period of 21 years.
I accordingly dismiss the appeal with costs fixed at Rs. 250.
SWADESHI INDUSTRIAL WORKS LTD., Appellant, and Mrs. DAPHNE DE SILVA, Respondent