Mohottige and Others v. Gunatilleke and Others
CITY CARRIERS LTD.
SUPREME COURTBANDARANAYAKE, J.
KULATUNGE, J. ANDDHEERARATNE, J.
S.C. APPEAL NO. 7/91C.A. NO. 126/85M.C. MT. LAVINIA NO. 70866 MAY 1992.
Industrial Law – Employees Provident Fund Act No. 16 of 1958 amended by ActNo. 8 of 1971 – Requirements of the Certificate for recovery riled under s. 38 (2)of the the Employees Provident Fund Act – Question of law raised for the first timein appeal.
Section 38 (2) of the Employees Provident Fund Act No. 16 of 1958 as amendedby Act No. 8 of 1971 imposes the duty on the Commissioner of Labour to giveparticulars of the sum due in the Certificate he files in the Magistrate Court forrecovery of Provident Fund dues. Where the Certificate contains no particulars ofthe sum claimed, there is in law no certificate.
Sri Lanka Law Reports
11992} 2 Sri LR.
This is a question of law arising upon documents filed and considered in theMagistrate Court and considered by the Court of Appeal, and can be raised inthe Supreme Court even though it was not specifically taken as an issue in theCourt of Appeal.
APPEAL from the judgment of the Court of Appeal.
R. K. W. Goonesekera with S. M. Uvais and A. P. Niles tor Appellant.N. G. Ameratunge S.S.C. for Respondent.
Cur. adv. vult.
6th May, 1992.
This matter comes up for leave to appeal from the judgment of theCourt of Appeal.
The Deputy Commissioner of Labour filed a document purportingto be a certificate in terms of section 38(2) of the EmployeesProvident Fund Act No. 16 of 1958 as amended by Act No. 8 of 1971against the respondent-petitioner in the Magistrate Court of Mt.Lavinia for the recovery of a sum of Rs. 552,279.17 as contributionsand surcharges against the petitioner.
The Magistrate by order dated 24.8.84 allowed evidence to be ledto challenge the purported certificate on the footing that therespondents had not been duly assessed. In the course of his orderwhilst considering matters on which the certificate.may possibly bechallenged, the Magistrate proceeded to state that he would permitevidence to be led to show that the assessment was not duly made.Against this decision the Attorney-General moved for revision of theMagistrate Order before the Court of Appeal. The Attorney-Generalfiled marked X1 before the Court of Appeal, a copy of the aforesaidpurported certificate filed in the Magistrate Court by theCommissioner of Labour in terms of section 28(2). This is the onlydocument concerning the aforesaid Certificate made available for theperusal of this Court.
The Court of Appeal whilst comparing decisions of the Court inregard to the Implementation of the Land Reform Laws andCo-operative Societies Laws took the view that the respondent in
City Carriers Ltd. v. The Attorney-General (Bandaranayake. J.)
those situations could not challenge the correctness of thestatements in a certificate. Accordingly, the Court of Appeal allowedthe petition of the Attorney-General in revision and set aside the orderof the Magistrate and directed the Magistrate to proceed to recoverthe total sum stated in the aforesaid purported certificate.
Mr. Goonesekera for the petitioner-respondent submits that thecertificate which the Commissioner of Labour is permitted to issue interms of section 38(2) must contain the particulars of the sum statedto be due. In the instant case the document X1 contains only the totalsum alleged to be due but does not set out any particularswhatsoever in regard to e.g. the computation of that sum, the periodwithin which that sum became due, the number of employeesconcerned in making the computation, or their names andemoluments etc. Mr. Goonesekera submits that section 38(2) permitthe respondent to show cause as to why the sum claimed is notpayable. The law therefore envisages an opportunity given to therespondent in the Magistrate Court to challenge the sum claimed. Hewill not be able to avail himself of that opportunity given to him by thelaw, unless he is given particulars so that he knows, what matters theCommissioner of Labour has taken into account in arriving at the sumclaimed. Therefore Mr. Goonesekera argued that as the documentfiled in the instant case does not give any particulars as required bylaw, P1 is not a certificate envisaged by subsection 2 of section 38.The subsection contains the words “containing particulars of sumdue". The Law, therefore, Mr. Goonesekera submits clearly imposesthe duty on the Commissioner of Labour to give such particulars as tohow he came to arrive at the total sum claimed.
In cases decided under Income Tax Laws, the Court took the viewthat the respondent could challenge the jurisdiction of Court to deaiwith a certificate where the default arises elsewhere; or therespondent is not proved in law to be defaulter;.or where there is notax in default; or the respondent has not been duly assessed as thetime bar has come into operation. Mr. Goonesekera has cited beforethis Court the judgment of this Court in S.C. Appeal No. 3/89 C.A.Applications No. 454/81 and 457/81 decided on 18.12.91. The Court'there permitted the respondent to challenge a certificate where therewere circumstances which invalidated the certificate.
Sri Lanka Law Reports
(1992] 2 Sri L.R.
Upon a perusal of XI which contains no particulars of the sumclaimed, we are of the opinion that there was no certificate filedbefore the Magistrate Court in terms of section 38 subsection 2 of theEmployees Provident Fund Act. Learned Counsel for the state arguedthat this point was not taken in the Magistrate Court or in the Court ofAppeal. We are of the view, that this is a matter of law which arisesfrom the proceedings of the Court or Appeal upon the document X1.
Accordingly we allow the appeal and set aside the judgment of theCourt of Appeal and quash the proceedings held before theMagistrate Court and discharge the appellant.
KULATUNGA, J. -1 agree.
DHEERARATNE, J. -1 agree.