Ceylon Workers' Congress v. Superintendent of Roeberry Estate
1967Present: Alles, J.
THE CEYLON WORKERS’ CONGRESS, Appellant, andTHE SUPERINTENDENT OE ROEBERRY ESTATE, RespondentS. C. 37j1964—Labour Tribunal Case No. 613796
Estate labourer—Termination of his services for misconduct—Termination of his wife'scontract of service also—Belated joint statement by husband and wife—Remedyof the wife—Estate Labour (Indian) Ordinance, ss. 2, 4, 5, 23 (1)—IndustrialDisputes Act, ss. 31 B (2) (6), 31 B (4), 31 C (2), 33 (2).
An estate labourer was summarily dismissed for misconduct on 16th September1960. On the same day the services of the wife (the appellant) were alsoterminated under section 23 (1) of the Estate Labour (Indian) Ordinance andshe was given one month’s wages in lieu of notice. No joint statement was filedby the husband and wife in terms of the proviso to section 23 (1) until threeyears later. Nor was the question raised at the hearing before the LabourTribunal whether compensation should be given to the appellant for her pastservices.
Held, (i) that no effect should be given to the belated joint statement.
(ii) that, in view of the limited powers of the Supreme Court to deal onlywith questions of law, the case should not bo remitted again to the LabourTribunal to decide whether any relief in the nature of compensation should begranted to the appellant.
.A.PPEAL from an order of a Labour Tribunal.N. Satyendra, for the applicant-appellant.Lakshman Kadirgamar, for the employer-respondent.Cur. adv. vult.
ALLES, J.—Ceylon Workers' Congress v. Superintendent
of Rocberry Estate
October 9, 1967. Alles, J.—
The appellant in this case is the wife of one Kitnan who was summarilydismissed for misconduct on 16.9.60 by the Superintendent of the Estate.On the same day, the appellant’s services were also terminated undersection 23 (1) of the Estate Labour (Indian) Ordinance and she was givenone month’s wages in lieu of notice. Counsel for the appellant has arguedtwo questions of law before me. Firstly, it was submitted by him thatby terminating the appellant’s services on the same day that her husband’sservices were terminated the appellant was deprived of an opportunityof filing a joint statement under the proviso to section 23 (1). Secondly,it was urged that the President had erred in law when he confirmed theorder of dismissal with only a month’s wages in lieu of notice and withoutordering any compensation for her past services. This latter ground wasnot one that was raised at the hearing before the Tribunal.
It was alleged that Kitnan had abused the Superintendent near thefactory on 26.8.60. An inquiry was held into this allegation and on16.9.60, Kitnan was found guilty and his services and the services of theappellant terminated on the same day. Kitnan was asked to call at theoffice after seven days for the discharge certificates and requested to leavethe estate. He refused to comply with these directions, made representa-tions to the Labour Union, who wrote to the Superintendent on 18.9.60and continued to remain on the estate for a considerable period thereafter.It was only on 24.6.63, nearly three years later, after he was convictedin the Magistrate’s Court of insult and his appeal to the Supreme Courtdismissed, that the joint statement was filed.
While I agree that the appellant’s services were prematurely terminatedon 16.9.60 before the time elapsed within which she and her husbandwere asked to call for the discharge certificates and leave the estate, itseems to me that neither the appellant nor the Union, which watchedher interests, considered the filing of the joint statement of any importance.Had they done so, they would not have failed to take the necessary stepsearlier for the continuation of the appellant’s services. The parties wereapparently more interested in disputing the right of the Superintendentto terminate the services of the appellant and her husband and claimingback wages than seeking to claim re-employment for the appellant.The joint statement that has been filed in the instant case can thereforebe hardly considered a serious expression of the willingness of theappellant to seek re-employment on the estate and I therefore do notthink that any effect should be given to such a belated statement. Thequestion therefore whether an opportunity was afforded to the appellantor not to file a joint statement in this case is only one of academicinterest.
The other question that has been argued before me is one that hasCaused me some anxiety but having regard to the limited powers of thiscourt to deal only with questions of law, I do not propose to accede to
AZ.LES, J.—Ceylon Workers’ Congress v. Superintendent
of Roeberry Estate
Counsel’s submissions and remit the case again to the Tribunal to decidewhether any relief in the nature of some compensation should be grantedto the appellant. In doing so I am not unaware of the fact that theappellant’s parents have been themselves labourers on this estate, thatthe appellant was born on the estate, that the appellant herself has workedon the estate for a considerable period and that the termination of herservices was due to no lapse on her part. In the circumstances, it mightappear, to say the least, an unfair labour practice to terminate herservices with only a month’s wages in lieu of notice. Counsel for therespondent however submitted that in doing so the employer has done nomore than what was required under the provisions of the law. Contractsof service under the Estate Labour (Indian) Ordinance are governed bysection 5 and are terminable with one month’s notice. The Ordinancehas to be read in conjunction with the Service Contracts Ordinance(vide sections 2 and 4 of the Estate Labour (Indian) Ordinance) and underthe terms of service governed by the latter Ordinance it was open to theemployer to terminate the services of any labourer on payment of amonth’s wages in lieu of notice. But considerable progress in labourrelations has taken place since the passing of the Service Contracts Ordin-ance in 1866 and the Estate Labour (Indian) Ordinance in 1889 andtoday with the development of modem concepts of social justice and thedevelopment of industrial law it is open to a labourer to seek redressfor any kind of unfair labour practice. In Highland Tea Co. of CeylonLtd. v. The National Union of Workers1 I have not interfered with theorder of the President who granted to the innocent spouse one month’swages for every year of service as compensation. In that case I wasof the view that the innocent spouse could not claim to be re-instated asa matter of right on the filing of the joint statement but that when thePresident made an order directing that compensation should be made tothe innocent spouse it was an order that was just and equitable. This“ compensation ” must not be considered as a recompense for the lawfultermination of the services of the innocent spouse under the contract forto so hold would in the words of T. S. Fernando, J. in the High Forestcase 2 amount to “ lawfully making an order the effect of which is to sanc-tion the breach of a law of this land ”. This payment is more in the natureof some kind of compensation for past services in keeping with the spiritof labour practice prevailing today. I do not think that Fernando, J.when he made the observations in the High Forest case ever intendedto close the door to Labour Tribunals granting any such relief. Itseems to me that the learned Judge was directing his mind to the importantquestion that a Labour Tribunal should not, under the guise of makingjust and equitable orders, either directly or indirectly sanction a breachof the law. The Privy Council in United Engineering Workers Union v.Devanayagam3 accepted the view taken by Abeyesundere, J. in ShellCo. of Ceylon Ltd. v. PaXhirana4 that a Labour Tribunal has jurisdictionunder section 31 B (4) read with section 31 C (1) of the Industrial Disputes
(1967) 70 N. L. R. 161.• (1967) 69 N. L. R. 289.
• (1963) 66 N. L. R. 14.*■ (1962) 64 N. L. B. 71.
Somdlingam v. Jayawardene
Act to grant relief to a workman in spite of the fact that his serviceshave been lawfully and justifiably terminated by his employer. Forthe same reason it would be open to a Labour Tribunal to give reliefin an appropriate case to an innocent spouse whose services have beenlawfully terminated under section 23 (1) of the Estate Labour (Indian)Ordinance whether a joint statement is filed or not. I agree with Counselfor the respondent that such orders must not indirectly flout the provisionsof the law and for that reason I am unable to agree with Mr. Satyendra’scontention that since the appellant has expressed her willingness to bere-employed on the estate an order directing re-employment in any formwould be a just and equitable order. Counsel for the respondentsubmitted that it was open to the appellant to claim any benefits undersection 31 B (1) (b) of the Industrial Disputes Act but that the appellantchose only to claim re-instatement with back wages. The President toounder the wide powers given to him under section 33 (1) of the Act couldhave granted relief to the appellant. No case has therefore been madeout for a remission of the case to the President for any relief.
I dismiss the appeal.
THE CEYLON WORKERS’ CONGRESS, Appellant, and THE SUPERINTENDENT OF ROEBERRY ESTA