039-NLR-NLR-V-70-THE-HIGHLAND-TEA-CO.-OF-CEYLON-LTD.-and-another-Appellants-and-the-NATIONAL-UN.pdf
The Highland Tea Go. of Ceylon Ltd. v. The National
Union of Workers
161
1967Present: Alles, J.THE HIGHLAND TEA CO. OF CEYLON LTD. and another, Appellants,and THE NATIONAL UNION OF WORKERS, RespondentS. C. 56-57J1967—Labour Tribunal Case No. 9J682
Estate Labour (Indian) Ordinance—Section 23 (1)—Lawful termination of a labourer'scontract of service—Termination of his wife's contract of service thereafter despitejoint statement by husband and wife—Remedy of the wife—Power of a LabourTribunal to grant compensation to her—Meaning of the word “ labourer ”—Industrial Disputes Act, s. 31 D (2).
Where, after the contract of service of an estate labourer has been lawfullyterminated, a joint statement in terms of the proviso to section 23 (1) of theEstate Labour (Indian) Ordinance is submitted to the employer by thedischarged labourer and his wife, wishing that the services of the wife, who isalready under a contract of service on the estate, be continued, the employeris not bound to continue the employment of the wife. Consequently, the wife,if her services are lawfully terminated, cannot claim as a matter of right to bere-instated by a Labour Tribunal. It is, however, open to the Tribunal togrant her equitable relief by making an order for the payment of a sum of moneyas compensation.
The benefits of the Estate Labour (Indian) Ordinance are available to aperson who is bom in Ceylon of parents who are of Indian origin and whobecomes a citizen of this country by registration.
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ALLES, JThe Highland Tea Co. of Ceylon Ltd. v. The National
Union of Workers
Appeal from an order of a Labour Tribunal.
Kadirgamar, for the respondents-appellants.N. Satyendra, for the applicant-respondent.
Cur. adv. vult.
September 29, 1967. Alles, J.—
The respondent Union filed an application on 11.10.66 before the LabourTribunal on behalf of one Iruthayam, wife of Muthiah, alleging that thetermination of her services by the appellants was without valid reasonand praying, inter alia, for her re-instatement. On 8th April, 1967, afterhearing the submissions of the legal representatives of the partiesconcerned, the President made order that the termination of Iruthayam’sservices was wrongful but without ordering re-instatement he directedthe appellants to pay her a sum of Rs. 300 as compensation. The presentappeal to this Court is made under section 31D (2) of the Industrial Dis-putes Act and has raised several questions of law. It has been submittedby Counsel for the appellants that the learned President erred in lawwhen he held that the termination of the contract of employment ofthe said Iruthayam was wrongful when a joint statement had been filedunder section 23 of the Estate Labour (Indian) Ordinance ; that the saidOrdinance did not apply to her as she was a citizen of Ceylon and that therelief granted to Iruthayam was not of a nature that was authorised underthe provisions of the law.
There is no dispute that the services of Muthiah were properly termina-ted by the appellants and that termination has been justified by the ordermade by the Tribunal in his case. It is also admitted that thereafter ajoint statement under the proviso to section 23 (1) of the Estate Labour(Indian) Ordinance has been tendered to the Superintendent signed byMuthiah and Iruthayam but that no work has been given to Iruthayamand that her services have been terminated by the Superintendent, the2nd appellant.
The Estate Labour (Indian) Ordinance (hereafter referred to as theOrdinance) was enacted in 1889 and was intended to consolidate thelaw relating to Indian labourers employed on Ceylon estates. The Ordin-ance applied to emigrants from India who emigrated to Ceylon towork on Ceylon estates and the definition of the word ‘ labourer ’ in theOrdinance clearly indicated that it applied to persons of Indian origin.My Lord the Chief Justice in Superintendent, Oakwell Estate, Haldumullav. Lanka Estate Workers Union 1 has held that the Ordinance applied notonly to actual emigrants from India but also to children of emigrantsborn in Ceylon. With that observation, I am in respectful agreement.
1 {1963) 66 N. L. R. 429 at 430.
ALLES, J.—The Highland Tea Co. of Ceylon Ltd. v. The National
Union of Workers
163
Indeed the provisions of the entire Ordinance in regard to the paymentof wages, the contracts of service, the maintenance of registers, theprovisions of accommodation for the labourers and the forms to beforwarded to the Emigration Commissioner justify the observation thatthe main object of the Ordinance was to safeguard the interests ofthe Indian immigrant labourer. Section 23 was intended to preservethe family unit of the labourer and reads as follows :—
At the time when any labourer lawfully quits the service of anyemployer, it shall be the duty of that employer to issue to that labourera discharge certificate substantially in form II in Schedule B, and,where at such time the spouse or a child of such labourer is also alabourer under a contract of service with that employer, it shall be theduty of the employer, subject as hereinafter provided, to determinesuch contract and to issue a like certificate to such spouse or child :
Provided that where such spouse or child wishes to continue in serviceunder such contract and produces to the employer a joint statementsigned by both husband and wife to that effect, nothing in thepreceding provisions of this subsection shall be deemed to require theemployer to determine such contract or to issue a discharge certificateto such spouse or child.”
Under the main section, there is a duty imposed on the employer of alabourer, who lawfully quits his service, to issue him a discharge certificateand when the spouse or child of such a labourer is also under a contractof service there is a further duty cast on him to issue a discharge certificateto such spouse or child as well. There is therefore a corresponding rightin the labourer or the spouse in such a case to claim that they are entitledto receive such certificates. The breach of this duty is punishable as anoffence under section 23 (2). Under the proviso, when a joint statementis filed the law imposes no duty on the employer to continue the employ-ment of the spouse or to refrain from issuing a discharge certificate. Theterms of the employment of the spouse in such a case would be governedby the common law. Consequently, the spouse of a labourer whoseservices have been lawfully terminated cannot claim as a matter of rightin such an event to be re-instated. There may be good grounds why theemployer is unable to re-instate the spouse of such a labourer. Quiteapart from the desirability of maintaining the family unit, an employermay find it difficult to provide accommodation for the spouse, parti-cularly if she is the wife, and as in the instant case it may become neces-sary in the interests of discipline not to order re-instatement. These arematters, particularly in the present state of labour relations, which shouldbe left to the discretion of the employer and subject to review by aLabour Tribunal. This view is not necessarily in conflict with the viewexpressed by my brother T. S. Fernando, J. in the High Forest case1.In that case no joint statement was filed and my brother held, if I may
1
(1963) 66 N. L. R. 14*
164
ALLES, J.—The Highland Tea Co. of Ceylon Ltd. v. The National
Union of Workers
say so with respect, correctly, that when the wife’s contract was deter-mined in consequence of the lawful termination of the husband’s servicesit was not open to a Labour Tribunal to grant just and equitable reliefto the wife. Such a course the learned Judge remarked would be “ inconflict with the law as declared by the legislature and as interpreted bythe Courts
In the concluding part of the present order the President has statedas follows :—
“In making an order of reinstatement, I should take into considerationthe fact that this Tribunal has justified the termination of this worker’shusband’s services for gross misconduct so that if I decide to reinstateher, I cannot deprive her husband of a legitimate right to visit and livewith his wife in the estate. This position, in my view, would create avery anomalous situation and would not be conducive to a harmoniousrelationship. It would, in other words, nullify the effect of my ordermade in respect of the husband. It could even lead to a very seriousbreach of discipline as the man unwanted by the Superintendent isagain within the precincts of the estate, probably spreading discontentand disharmony amongst the peaceful and peaceloving set of innocentworkers.
I am of the sincere opinion that I would be failing in my duty if Iwere to reinstate this woman even with the most stringent conditionsattached to such an order.
For the reasons stated above, I hold that the dismissal is wrongfulbut I refrain from making an order of reinstatement. Instead, takinginto consideration the period of service, i.e., from August, 1961, Iorder the respondent to pay to the worker concerned, a sum of Rs. 309as compensation.”
The facts in the present case therefore are different from the facts in theHigh Forest case and in the view that I have taken of the circumstancesof the instant case, it was open to the President to make an order that wasjust and equitable.
The only other point raised in this appeal was whether the Ordinanceapplied to Iruthayam who was born in Ceylon and admittedly was acitizen of Ceylon by registration. I do not think that the fact that aperson who is born in Ceylon of parents who are of Indian origin—(I assume this to be the case since a joint statement was filed undersection 23)—and who has become a citizen of this country by registrationprecludes such a person from enjoying the benefits of the Ordinance.There is nothing to prevent an Indian emigrant or the child of oneacquiring citizenship rights in this country and at the same time claimingthe benefits under the Estate Labour (Indian) Ordinance. I
I am therefore of the view that the termination of the services ofIruthayam by the 2nd respondent-appellant was not wrongful or unlawfuland I would set aside the order of the President declaring it to be such.
ArunascUam v. Ayadurai
165
I also hold that the President has not erred in law in making the orderof compensation in thi3 case which is an order which he was entitled tomake under the provisions of the law.
Since the appellants have succeeded in the declaration which theyhave sought that the order terminating Iruthayam’s services was notwrongful, I dismiss the appeals without costs.
Appeals dismissed.