National Lotteries Board V.Kulatunga, Labour Officer, Colombo South
that the subsequent assessment would have no effect. Hence regulation3 covers primarily cases where premises are originally assessed as"residential" but in or after 1969 are assessed as "business". It also coverscases where premises initially assessed as "business" are thereafterphysically converted into two or more distinct premises, and assessedas such for the first time after 1968. The second limb of regulation 3has no application to a case such as the present where there was nophysical conversion into two or more premises, but only a notionalconversion for the purpose of assessing and recovering rates.
Considering the absence of any physical alterations whatsoever madeto premises No. 97B, I am unable to hold that new premises have comeinto existence. The original assessment in force as at January 1968 willcontinue to govern the entire premises. This situation no doubt willchange if the separately assessed premises becomes the subject matterof a separate letting.
For the above reasons the appeal is dismissed and the judgment ofthe Court of Appeal is affirmed. The plaintiff-respondent will be entitledto costs of this appeal and to costs in all Courts below.
BANDARANAYAKE, J. – I agree
FERNANDO, J. – I agree
NATIONAL LOTTERIES BOARDV.
KULATUNGA, LABOUR OFFICER, COLOMBO SOUTH
COURT OF APPEALWIJEYARATNE, J.
C.A. NO. 176/84
M.C. COLOMBO CASE NO. 23011/4MAY 24. 1991.
Termination of employment – Labour Tribunal order – Enforcement – Industrial DisputesAct,ss 40(1)(e) 43(1), (2), (4), 47A, 31(B) (6) (C) – Penal Code, S. 72.
Where a Labour Tribunal ordered an applicant compensation in Rs. 14,569/- in lieu ofreinstatement by order dated 30.12.76 and after a change of Government in 1977 theapplicant was re-employed on a directive from the Minister of Labour from 12.09.77 andpaid a higher salary and also received a sum of Rs. 18,931/67 as compensation from
Sri Lanka Law Reports
(1991) 1 Sri L.R.
the employer as directed by the Political Victimization Committee, and where theemployer was convicted by the Magistrate tor failing to comply with the order of theLabour Tribunal –
The applicant had already received from the employer reliefs in excess of that orderedby the Labour Tribunal. Under the circumstances, the employer was justified in lawin not complying with the order. Section 72 states that nothing is an offence whichis done by any person who is justified by Law.
Per Wijeyaratne, J. “I wish to stress that the law requires everyone to comply withan order of a Labour Tribunal. This is a unique case where by an unusual combinationof circumstances the workman (Fernando) obtained more than the relief he hadclaimed in the Labour Tribunal by other means. Thereby the accused-appellantindirectly complied with the order of the Labour Tribunal.
APPEAL from an order of the Magistrate's Court, Colombo.
J. Joseph for accused – appellant.
N. Laduwahelty, S.C. for complainant – respondant.
24 May 1991.
In this case the accused-appellant is the National Lotteries Board.The accused-appellant was charged in the Magistrates Court ofColombo with having on or about 31.01.77 failed to comply with theorder of the Labour Tribunal, Colombo, dated 30.12.76, to pay a sumof Rs. 14,560/- to W.S.R.M. Fernando, in breach of section 40(1 )(q)and punishable under section 43(4) read with sections 43(1) and43(2) of the Industrial Disputes Act, as amended.
At the trial Asoka Karunaratne (Assistant Secretary of the LabourTribunal), Mrs. K.A.D.N.H. Jayatillake (Labour Officer) and W.S.R.M.Fernando gave evidence for the prosecution. They produced theorder of the Labour Tribunal dated 30.12.76, marked P1, theJudgment and the decree of this court dated 7.5.31 whereby the saidorder of the Labour Tribunal was confirmed by this court, markedP2 and P3, and other documents marked P4, P5 and P6.
According to the prosecution evidence, W.S.R.M. Fernando had beenappointed by the accused-appellant as a Staff Assistant (Accounts)from 5.2.69 and his services were terminated on 30.04.73 without
National Lotteries Board V.
Kulatunga, Labour Officer, Colombo South (Wijeyaratne, J)
any just or reasonable cause. At the time of termination of hisservices he was drawing a monthly salary of Rs. 500/-. Consequentlyhe filed an application in the Labour Tribunal of Colombo claimingreinstatement, or in the alternative, compensation and also gratuityor any other relief that the tribunal would deem fit.
After inquiry the learned President of the Labour Tribunal by his orderP1 dated 30.12.76 directed the accused-appellant to pay a total sumof Rs. 14,560/- is lieu of reinstatement. This amount was to bedeposited with the Assistant Commissioner of Labour, ColomboSouth, on or before 31.01.77, which was not done.
On behalf of the accused-appellant I.K. Wimaladasa (Personnel andWelfare Officer of the National Lotteries Board) gave evidence andproduced documents marked D1 to D5.
Briefly the position taken up by the accused-appellant before theMagistrate at the trial was that in 1977 there was a change ofGovernment and Fernando had made an application for re-employment. On a directive from the Minister of Labour, Fernandowas re-employed from 12.09.77 at a starting salary of Rs. 760/-.Fernando had also made an application to the Political VictimizationCommittee appointed by the Government, which Committee orderedthe payment of Rs. 18,931/67 to him as compensation, which amounthad been paid to him by the accused appellant and accepted byhim. Fernando had also agreed in writing to withdraw his applicationbefore the Labour Tribunal. These facts were unchallenged and notin dispute. Therefore it was contended on behalf of the accused-appellant that there was no "mens rea" and that the accused-appellant believed in good faith there was no necessity to complywith the order.
After trial the learned Magistrate held that the payment of Rs. 18,961/67 does not mean that the accused-appellant has complied with theorder of the Labour Tribunal and found the accused-appellant guiltyand ordered it to pay Rs. 14,560/- as compensation and a furthersum of Rs. 500/- as a fine, from which order this appeal has beenfiled.
At the hearing Mr. Joseph for the accused-appellant submitted thatsection 31(B)(6)(c) of the Industrial Disputes Act provides for
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(1991) 1 Sri L.R.
compensation as an alternative to dismissal and that in this caseFernando has received both benefits by other means. He submittedthat in these circumstances the accused-appellant was justified bylaw in not complying with the Labour Tribunal order as Fernando hasbeen given all the reliefs he had claimed. Mr. Joseph also citedsection 47.A of the Act which states that any contract or agreementwhereby any right conferred on any worker by a Labour Tribunal isin any way affected or modified to his detriment shall be null andvoid to that extent. He submitted that in this case Fernando had beenre-employed on a higher salary and also been paid Rs. 18,931/67by the time the accused-appellant was charged in the Magistrate'sCourt and his rights had not been adversely affected in any way.
Mr. Ladduwahetty, State Counsel, on the other hand submitted thatthese two matters are not connected to each other and they aredifferent matters.
I have considered the submissions of learned counsel on both sides.In this case Fernando had not only been reinstated but he had alsobeen compensated in Rs. 18,931/67 by the accused-appellant, whichwas in excess of the relief awarded by the Labour Tribunal. Underthese circumstances I am of the view that section 72 of the PenalCode is applicable. Section 72 of the Penal Code states that nothingis an offence which is done by any person who is justified by law.
In this case I am of the view that under these circumstances theaccused-appellant was justified in law in not complying with the orderof the Labour Tribunal and not paying the amount of Rs. 14,560/-to Fernando as he had already received the sum of Rs. 18,960/67from the accused-appellant and also been reinstated at a highersalary. In these circumstances it cannot be said that the accused-appellant failed to comply with the order of the Labour Tribunal.
I therefore set aside the conviction and sentence and the accused-appellant is acquitted and discharged of the charge.
I wish to stress that the law requires everyone to comply with anorder of a Labour Tribunal. This is a unique case where by anunusual combination of circumstances the workman (Fernando)obtained more than the relief he had claimed in the Labour Tribunal
Ibrahim V. Nadarajah
by other means. Thereby the accused-appellant indirectly complied withthe order of the Labour Tribunal.
Conviction and sentence set aside.