062-NLR-NLR-V-71-AIR-CEYLON-LTD-Petitioner-and-F-.-X.-J.-RASANAYAGAM-and-2-others-Respondents.pdf
Air Ceylon Ltd. v. Rasanayagam
271
1968 Present: H. N. G. Fernando, CJ.t and Abeyesundere, X.AIR CEYLON LTD., Petitioner, and F. X. J. RASANAYAGAM. and 2 others, Respondents
S. C.134J67—Application for the issue of Mandates in the nature ofWrits of Certiorari and Prohibition on F. X. J. Rasanayagam,President, Labour Tribunal I, and two others
Industrial dispute—General Manager of “ Air Ceylon ” Corporation—Terminationof. his services— Whether he can apply to a Labour Tribunal for relief— Whetherhe is an employee of the Government—‘‘ Employer ’*—“ Workman ”—Industrial' Disputes Act (Cap. 131),'ss. 31B, 49—Air Ceylon Act (Cap. 280), ss. 3,14.
The Corporation “ Air Ceylon " is, within the meaning of the definition of, “ employer " in the Industrial Disputes Act, the employer of the GeneralManager of Air Ceylon. The General Manager was therefore entitled, ontermination of hiB services by Air Ceylon, to make an application to a LabourTribunal under Part IV A of the Act.
A PPLICATION for Writs of Certiorari and Prohibition on a LabourTribunal.
H. V. Perera, Q.C., with R. A. Kannangara and L. Kadirgamar, for thePetitioner.
N.Satyendra, for the 2nd Respondent.
Cur. adv. vult.
» (19?4) 2 Q. B. 203 C. A.
272
H. N. G. FERNANDO, C.J.—Air Ceylon Ltd. v. Ramnayagam
March 14, 1968. H. N. G. Fernando, C.J.—
The 2nd respondent to this application was appointed in 1961 to be theGeneral Manager of Air Ceylon Limited, and on 29th January 1966 hewas informed by the Chairman of the Board of Directors of Air CeylonLtd. that, with the approval of the Minister, the Board had decided toterminate his services as such General Manager with effect from 31stJanuary 1966.
The 2nd respondent thereupon made an application to a LabourTribunal under Fart IV A of the Industrial Disputes Act (Chap. 131)for relief or redress in respect of certain matters specified in theapplication. At the inquiry before the Labour Tribunal the presentpetitioner, Air Ceylon Ltd., took the preliminary objection that theTribunal had no jurisdiction to hear and determine the application, andthe Tribunal thereafter made order overruling the objection and fixingthe 2nd respondent’s application for inquiry. The present applicationto this Court is for a mandate to quash the proceedings held by theLabour Tribunal and for a writ of prohibition against the Tribunal fromassuming jurisdiction, or for granting relief or redress, in the applicationmade to it by the 2nd respondent.
In the argument before us Counsel for the petitioner urged two maingrounds in support of the application for the writs. For the first of thesegrounds, Counsel relied on the provisions of section 49 of the IndustrialDisputes Act:—
*' Nothing in this Act shall apply to or in relation to the Crown or the
Government in its capacity as employer, or to or in relation to a
workman in the employment of the Crown or the Government.”
Counsel’s submission was that the undertaking carried on by Air CeylonLtd. was in fact an undertaking by the Government, because in terms ofthe Air Ceylon Act (Chapter 280)—
The Government has made contributions to the capital of AirCeylon, and further such contributions of capital can become dueunder the Act;
Members of the Corporation (Air Ceylon) are appointed by theMinister and their appointments may be terminated by theMinister;
Sums remaining out of the nett receipts of Air Ceylon for eachfinancial year, less certain authorised deductions, have to be paidby the Corporation into the Consolidated Fund. I
I am unable to agree that the provisions of the Air Ceylon Act whichare mentioned above, and other provisions thereof, have the effect that inlaw the Crown or the Government is the employer of persons employedon the staff of Air Ceylon. The Act establishes a Corporation to beknown as r* Air Ceylon Limited ” and section 14 empowers the Corpora-tion to appoint and dismiss its staff and tp determine the remuneration
H. N. G. FERNANDO, C.J.—Air Ceylon Ltd. v. Rasanayagam273
— . –
and other conditions of service of the staff. As the President of theTribunal has pointed out in his order, the Corporation has under the Act(s. 3) the duty to secure the fullest development of efficient Air transportservices to be operated by it, and has all necessary powers to facilitatethe performance of that duty. There are of course certain powers vestedin the Minister to supervise and in some instances to direct the policy ofthe Corporation but the existence of these powers does not, in my opinion,have the consequence that the Crown or the Government is the employer.The staff jof the Corporation is in fact employed by and under ,theCorporation itself, and it is clear beyond doubt that the relationship ofemployer and employee does exist between the Corporation on the onehand, and on the other hand, the members of its staff.
For present purposes, it is convenient to reproduce the definition of* employer ’ (in the Industrial Disputes Act) in a form whioh clearlyindicates its scope —
“ Employer ” means—
any person who employs a workman ;
any person on whose behalf any other person employs a workman *and
** Employer ” includes—
a body of employers ;
any person who bn behalf of any other person employs anyworkman.
. The point urged by Counsel for the petitioner is that, because of theprovisions of the Air Ceylon Act, the undertakings of Air Ceylon are aGovernment undertaking, and that, although the Government is notdirectly the employer of the staff, that staff is employed by the Corporationon behalf of (he Government. But even if this point is conceded to becorrect, all it establishes is that, under the paragraph I have numbered (2)above, the Government is an " employer ” ; and on that concession s. 49will apply, with the consequence that the Act will not apply to say inrelation to the Government as such employer. Nevertheless thereremain the paragraphs which I have numbered (!) and (4) above; interms of paragraph (1) Air Ceylon Limited is an ‘ employer becauseundoubtedly it does employ its staff; and also, in terms of paragraph (4).the Corporation is an ‘ employer if, on Counsel's own argument, theCorporation employs staff on behalf of the Government. I
I would hold therefore that, even if it be correct to say that Air CeylonLimited employs staff on behalf of the Government, the Corporation isnevertheless an employer as defined in the Act, and that there is nothingin s. 49 of the Industrial. Disputes Act to exempt Air Ceylon Limited, inits capacity as “ employer from the provisions of the Act.
24-PP 006137 (98/08)
274
H. N. O. FERNANDO, C. J.—Air Ceylon Lid. ®. Raaanayagam
Counsel’s second argument is much narrower in its scope and dependson the proviso to s. 14 (1) of the Air Ceylon Act:—
“ provided that the appointment or dismissal of the General Manager
shall not be made without the previous approval in writing of the
Minister."
His argument was that a person is not an * employer ’ within themeaning of the definition in the Industrial Disputes Act, if there is anystatutory restriction of his power to employ or dismiss an employee.The fallacy in this argument, it seems to me, lies in the supposition thatthe existence of some statutory restriction as to the mode of selectionof an employee has the consequence that the person who ultimatelyemploys is not an employer. Such a statutory restriction can operateto prevent employment being given to a particular person; but in acase where the statutory restriction is spent, so to speak, in this particularcase where the Minister’s approval to the appointment of a person asGeneral Manager was obtained, then thereafter the Corporation waslegally entitled to employ that person ; and in terms of the definition of* workman the person employed clearly had a contract of employmentwith the Corporation.
Counsel for the petitioner also referred to the fact that, under theproviso of s. 14 (1) of the Air Ceylon Act, the General Manager can onlybe dismissed or re-instated with the approval of the Minister. He pointedout that if in the present case the Labour Tribunal orders re-instatementof the 2nd respondent, the Corporation may be unable to carry out theorder because the Minister may not give lus approval for re-instatement.It was urged on this ground that the nature of the particular employmentwas such that the Industrial Disputes Act does not contemplate that .the termination of the 2nd respondent can be the subject of an applicationto a Labour Tribunal.
I do not propose here to express any opinion on the question whetheror not a Labour Tribunal may or will order re-instatement in such asituation. It suffices to observe for the present that relief other thanre-instatement is available upon an application under s. 31B, and thatthe difficulties to which Counsel has referred, if substantial, are matters ofwhich the Tribunal will take account in the exercise of its power to makea just and equitable order.
For these reasons I hold that the Tribunal has jurisdiction to entertainthe application made to it by the 2nd respondent. The petitioner’sapplication to this Court is dismissed with costs fixed at Rs. 500 payableto the 2nd respondent.
Abeyesundere, J.—I agree.
Application dismissed.