CEYLON MERCANTILE UNION, Appellant, and W. L. P. DE MEL (Commissioner of Labour

001-NLR-NLR-V-77-CEYLON-MERCANTILE-UNION-Appellant-and-W.-L.-P.-DE-MEL-Commissioner-of-Labour.pdf


THE
NEW LAW REPORTSOF SRI LANKA (CEYLON)VOLUME LXXV1I[In the Court of Appeal of Sri Lanka]
Present: Fernando, P., Sirimane, J., Samerawickrame, J.,and Tennekoon, J.THE CEYLON MERCANTILE UNION, Appellant, and W. L. P.DE MEL (Commissioner of Labour) and 2 others, Respondents
Appeal No. 4 of 1973
S. C. 506/72—Application for Writs of Certiorari and Mandamus
Emergency (Miscellaneous Provisions and Powers) Regulations No. 5of1972—Regulation 38 (1)—Essentialservice—Absence of
employees while the Regulation is in force—Resulting terminationof their employment—Inapplicability of Termination of Employ-ment of Workmen (.Special Provisions) Act No. 45 of 1971—PublicSecurity Ordinance, as amended by Act No. 8 of 1959 ss. 2 (I),5 (1), 7, 17—Essential Services Order of 1972—Paragraph 2 (11) —“ Mercantile or commercial undertaking
The power conferred by section 5 (1), read with section 7, of thePublic Security Ordinance to make Regulations for the maintenanceof services essential for the life of the community has not beentaken away by the enactment of section 17 which was introducedby the Public Security (Amendment) Act No. 8 of 1959.
Paragraph 2 (11) of the Essential Services Order of 1972 madein terms of Regulation 2 of the Emergency (Miscellaneous Provisionsand Powers) Regulations is intended to include the services ofany business undertaking which carries on for profit the sale, supplyor distribution of any goods whatsoever. Accordingly, a Companywhich carries on the production and sale of several newspapersas a business venture is a mercantile or commercial undertakingwithin the meaning of that paragraph of the Order.
L XXVII—1
1 • A 05649—2,808 (74/03)
2SAMERAWICKRAME, J.—Ceylon Mercantile Union v. De Mel
PPEAL from a judgment of the Supreme Court reportedin (1973) 76 N. L. R. 390.
Nimal Senanayake, with Miss S. M. Senaratne, Melvin Silvaand Rohan Ferera, for the appellant.
S. Sivarasa, State Counsel, with A. de Z. Gunawardena, StateCounsel, for the 1st and 2nd respondents.
N. Satyendra, with D. C. Amerasinghe and P. Suntharalingam,for the 3rd respondent.
Cur. adv. vult.
December 10, 1973. Samerawickrame, J.—
The Commissioner of Labour decided that the services of about300 employees of the 3rd respondent-company who weremembers of the petitioner-appellant Union had not beenterminated but that these employees are deemed to have vacatedtheir employment by virtue of the operation of Regulation 38 (1)of the Emergency (Miscellaneous Provisions and Powers)Regulations No. 5 of 1972. He accordingly decided that theprovisions of the Termination of Employment of Workmen(Sp scial Provisions) Act No. 45 of 1971 cannot be applied tothem. The petitioner-appellant made an application to theSupreme Court for an order quashing the decision of theCommissioner and requiring him to commence and proceed withthe inquiry under the Act. This application was refused by theSupreme Court and the petitioner-appellant has appealed fromthe order refusing its application.
In terms of the Regulation 38 (1) any person employed on anywork in connection with a service that has been declared anessential service by an order made by the Governor-Generalby Regulation 2 who has failed or refused to attend at his placeof work after the lapse of one day after the date of that order,shall be deemed for all purposes to have terminated or vacatedhis employment. He shall be deemed to have vacated or termi-nated his employment notwithstanding that he has failed orrefused to attend in furtherence of a strike. The employees ofthe 3rd respondent were on strike and had failed to attend attheir place of work. When they reported for work later, the 3rdrespondent-company had refused to offer them work on theground that they were deemed to have vacated theiremployment.
SAMERAWICKRAME, J.—Ceylon Mercantile Union v. De Mel
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Learned Counsel for the petitioner-appellant raised before usa point of law that had not been raised in the Supreme Courtviz. that the power under Section 5 (1) of the Public SecurityOrdinance to make Regulations for the maintenance of servicesessential for the life of the community has been taken awayby the enactment of Section 17 which was introduced by thePublic Security (Amendment) Act No. 8 of 1959 in which theLegislature itself made provision in respect of this particularmatter. It is necessary to examine the relevant provisions.Section 5 (1) of the Public Security Ordinance under whichEmergency Regulations may be made is in Part II of thatOrdinance which comes into operation on a proclamation underSection 2 (1). The two provisions read:
2. (1) Where, in view of the existence or imminence of astate of public emergency, the Governor-General is ofopinion that it is expedient so to do in the interestsof public security and the preservation of public orderor for the maintenance of supplies and servicesessential to the life of the community, the Governor-General may, by Proclamation published in theGazette, declare that the provisions of Part II of thisOrdinance shall come into operation forthwith or onsuch date as may be specified in the Proclamation.
5. (1) The Governor-General may, upon the recommendationof the Prime Minister or any other Minister authorisedby the Prime Minister to act on his behalf under thissection in case of his temporary absence or incapacity,make such regulations (hereinafter referred to as‘ emergency regulations ’) as appear to him to benecessary or expedient in the interests of publicsecurity and the preservation of public order and thesuppression of mutiny, riot or civil commotion, or forthe maintenance of supplies and services essential tothe life of the community.
Section 17 which has been introduced into the Ordinance by thePublic Security (Amendment) Act 8 of 1959 reads :
17. (1) Where the Prime Minister considers it necessary inthe public interest to do so for the maintenance of anyservice which, in his opinion, is essential to the lifeof the community, he may by order published in theGazette, declare that service to be an essential service.
On a declaration that a service is an essential service under thissub-section, other provisions in sub-sections 2 to 4 come intooperation in respect of that service and, inter alia, any personwho was employed or engaged on any work in connection withthat service will be guilty of an offence if he fails or refuses
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SAMERAWICKRAME, J.—Ceylon Mercantile Union v. De Mel
to attend at his place of work or employment. There is however,a proviso that any cessation of work in consequence of a strikecommenced by a registered trade Union solely in pursuance ofan industrial dispute, shall not be deemed to be an offence.
Section 17 appears in Part III of the Public Security Ordinanceand an order declaring a service to be a service essential to thelife of a community under sub-section (1) may, unlike EmergencyRegulations, be made without a prior order under Section 2.Such an order is made when the Prime Minister considers itnecessary in the public interest to do so. Upon an order beingmade the provisions of sub-paragraphs 2, 3 and 4 of Section 17prohibiting certain acts which could impede work in an essentialservice come into operation.
Emergency Regulations however may only be made on PartII of the Public Security Ordinance being brought into operation“in view of the existence or imminence of a state of publicemergency ”. Such Regulations may be made as appear to theGovernor-General to be necessary or expedient, inter alia, for themaintenance of supplies and services essential to the life of thecommunity. The provisions in the Regulations, therefore, maybe such as are fit or suitable to the occasion and are not statu-torily fixed as in 17 (2), (3) and (4). They will have effect evenif there is anything in them inconsistent with any law. VideSection 7.
Upon a consideration of the matters set out in the precedingtwo paragraphs it appears to us that the power conferred bySection 17 is not in respect of the same situations or occasionsin respect of which Emergency Regulations for the maintenanceof essential services may be made. It is also less extensive inits scope. It is significant that when Act 8 of 1959 was enactedthat part of the long title which read “ for the enactment ofEmergency Regulations ” was changed to “ for the enactment ofEmergency Regulations or the adoption of other measures ”.Section 17 appears to have been enacted as a further provisionfor safeguarding services essential to the life of the communityand was not intended to supersede the power to make EmergencyRegulations for that purpose. It appears to us, therefore, thatthe enactment of Section 17 did not take away the powerconferred by Section 5 (1) to make Emergency Regulations forthe maintenance of services essential to the life of the community.
Paragraph 2 (11) of the Essential Services Order of 1972 madein terms of Regulation 2 of the Emergency (MiscellaneousProvisions and Powers) Regulations reads :
11. The services provided by any mercantile or commercialundertaking engaged in the importation, exportation,sale, supply or distribution of any goods whatsoever.
SAMERAWICKRAMB, J.—Ceylon Mercantile Union v. De Mel
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It was argued on behalf of the appellant that the 3rdrespondent-company did not carry on a mercantile or commercialundertaking within the meaning of the Essential Services Order.On behalf of the appellant the Dictionary definition of“ commerce ”—
Exchange between men of the produce of nature and art;buying and selling together ; exchange of merchandise,specially on large scale between different countries ordistricts.
was heavily relied on. In reliance on this definition it wascontended that an undertaking is not a mercantile or commercialundertaking unless it both buys or procures and sells goods andthat the term does not apply to an undertaking which sellsgoods which it manufactures or produces.
In his judgment the learned Chief Justice stated that if theDictionary meaning of the word “ commerce ” strictly appliedhe would have to agree that the 3rd respondent is not engagedin a commercial undertaking. But there were, in his opinion,many reasons why such a construction would conflict with theintention with which the Essential Services Order was enacted.However, among the meanings given to the word “ commercial ”in the Shorter Oxford English Dictionary is—“ viewed as amatter of profit and loss”. This indicates that the element ofbuying or procuring as well as of selling contended for on behalfof the appellant is not necessary. We think that the words“ mercantile or commercial ” in the provision should not begiven a narrow construction. The 3rd respondent carries on theproduction and sale of several newspapers as a business venture.We are, therefore, with respect in agreement with the findingof the learned Chief Justice that paragraph 2 (11) of theEssential Services Order is intended to include the services ofany business undertaking which carries on for profit, sale, supplyor distribution of any goods whatsoever, and that accordinglythe 3rd respondent-company is a mercantile or commercialundertaking within the meaning of that paragraph of the Order.
The 3rd respondent-company was engaged in the sale supplyand distribution of newspapers. It is necessary to consider theposition of those of its employees who were engaged in theirproduction. Once a service is declared by an order underRegulation 2 to be an essential service, Regulation 38 (I) appliesto any person engaged or employed in any work in connectionwith that service. As the production of the newspaper is ancillaryto and necessary to its sale supply or distribution the Regulationwould apply to those engaged in its production.
1**—A 05849 (74/03)
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Brook Bond (Ceylon) Ltd. v. Tea, Rubber, Coconut and General Produce
Workers’ Union
The judgment of the Supreme Court expressly states that itwas not suggested during the argument before it that newspapersare not “ goods ” within the meaning of paragraph 2 (11). In viewof this learned Counsel for the appellant accepted the positionthat it was not open to him to contend otherwise in this Court.The expression is very wide—“ goods of any description what-soever We, therefore, assume without further examinationthat newspapers are “ goods ” within the meaning of paragraph2 (11) of the Essential Services Order.
It is a matter for regret that the dispute between the appellantUnion and the company should have been pressed to such extentas to affect adversely so many of the employees. We findhowever, that the Supreme Court acted correctly in refusingthe application made to it by the appellant and we, therefore,dismiss this appeal but without costs.
Appeal dismissed.