EKSATH KAMKARU SAMITHIYA v. COMMISSIONER OF LABOUR

017-SLLR-SLLR-2001-V-2-EKSATH-KAMKARU-SAMITHIYA-v.-COMMISSIONER-OF-LABOUR.pdf


EKSATH KAMKARU SAMITHIYA
v.COMMISSIONER OP LABOUR
COURT OF APPEALGUNAWARDANE, J.
CA. 544/99TEU/C/68/95FEBRUARY 1, 2000
Termination of Employment of workmen Act, No. 4$of 1971 – S.5 andS.6 – Scheduled employment – Termination illegal – Should the work-men be terminated – Difference – ‘May’ should be given a permissivemeaning or mandatory meaning?
The Petitioner Union on behalf of 26 workmen mad^tn application to theCommissioner of Labour on the basis that their termination by theEmployer was illegal. The Commissioner of Labour found the terminationof 23 workmen was illegal and ordered to pay compensation. The Petitionersought to quash the said order and further sought an order on theauthorities to make a proper recommendation, according to Law.
Held :
The ultimate decision would be wholly conditioned or determined bythe significance or connotation to be attributed to the word ‘May’ thatoccurs in S.6.
Although the word ‘may’ taken in isolation expresses permission orliberty, yet that term ‘may’ acquires a compulsory force incircumstances where a duty devolves on the authority to exercise thatpower which the authority was permitted or enabled by the statute toexercise.
Manifest purpose of S.5 is to wholly protect the workman against thetermination of his service contrary to provisions of the relevant Actand to keep the contract of employment intact notwithstanding suchillegal termination.
Per Gunawardane J„
“One cannot conceive of a better way to preserve the contract ofemployment and keep alive the duties and objections of the employerthereunder, than as S.6 itself required, to order the employer tocontinue to employ the workmen.”
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The duty to reinstate the workmen as are the duties i.e. to
‘pay wages and other benefits’ imposed upon him under S.6 ismandatory and compulsory and he has no option in the matter.
APPLICATION for mandates in the nature of Writ of Certiorari andMandamus.
Cases referred to :
Blanka Diamonds – 1996 1 SLR 200
Macdougall vs. Patterson (1851) 11 CB 755
Sheffield vs. Luxford – 1929 – 2 KE 180
Smeltings Co of Austraia vs. Commissioner of Inland Revenue1897 1 QB 27 f'
L.VE Wettasinghe for the Petitioner.
Adrian Perera, SSC for the 1st & 2nd Respondent.
U. Wimalarajah with K. Sureshchandra for the 3rd Respondent.
Cur. adv. vult.
February 02, 2001.
U. De. Z. GUNAWARDANE, J.The petitioner union viz. Eksath Kamkaru Samithiya, onbehalf of 26 workmen, whose services had been terminated bytheir employer viz. Jet Match Co. Ltd. (3rd respondent), had on24.10.1995 made an application, to the termination unit of theLabour Department, making a complaint in that regard on thebasis that such termination was illegal and asking that theworkmen in question be re-instated. However in response tothe intimation by the 1st respondent (Commissioner of Labour)that complaints from each one of the individual workmen wasnecessary, only 23 of the workmen submitted complaints.
The inquiry into the matter of the termination of services ofthe workmen was held by the Assistant Commissioner of Labour(2nd respondent) who was authorised by the Is* respondent toconduct the inquiry. The 2nd respondent, after inquiry reached
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Eksath Kamkaru Samlthiya v. Commissioner of Labour
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the finding that the termination of services of the 23 workmenwas illegal and consequent upon that finding recommended thatJet Match Co. Ltd. (3rd respondent) be ordered to paycompensation on the following basis:
6 months' salary to workmen where length of serviceranged between 1-3 years;
12 month’s salary to workmen whose length of serviceranged between 3-6 years and
/,
18 months’ salary to workmen whose length of serviceexceeded 6 years.
However, the Commissioner of Labour (l(t respondent) byhis order reduced the sums above – mentioned by half whichorder of the Commissioner was conveyed to tl?e Secretary of theunion by letter dated 24.04.1999.
By this application to this court the petitioner union hasprayed for :
a writ of certiorari quashing the aforesaid recommendationof the Assistant Commissioner of Labour (2nd respondent)and also the aforesaid order of the Commissioner of Labourawarding compensation, in the manner indicated above, tothe workmen concerned;
an order of mandamus, to use the very expression in theprayer to the petition: “ordering the 2nd respondent to makea proper recommendation according to law based on hisfinding that the termination was contrary to law, or in thealternative ordering the 1st respondent to make order under,section 6 of Act No.45 of 1971 as amended on the basis ofthe 2nd respondent’s finding that the termination wascontrary to law”.
Prayer seeking an order of mandamus is, to say the least,vague. The petitioner has prayed that the 2nd respondent, theAssistant Commissioner of Labour, be directed to make a “properrecommendation according to law” or in the alternative thatthe 1st respondent, the Commissioner of Labour, be directed to
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make an order under section 6 of Act No.45 of 1971. The prayershould have been more explicit or specific and indicated theexact nature of the relief sought. It is not easy to divine ordiscover what the phrase “proper recommendation accordingto law” connotes; nor is the nature of'ihe order sought in thealternative, under section 6 of Act No.45 of 1971 i.e.. Terminationof Employment of Workmen Act, less obscure, if one has to go,solely by the prayer to the petition.
The ultimate decision in this case would be whollyconditioned or vletermined by the significance or connotationto be attributed to the word “may” that occurs in section 6 ofthe Termination of Employment of Workmen Act No.45 of 1971which section is as follows : the Commissioner may order suchemployer continue to employ the workmen…
The learned counsel for the petitioner contended for theview that the word "may” in the context has to be interpreted ina mandatory sense whilst the learned senior state counsel andthe learned counsel who appeared for the 1st and 2ndrespondents and the 3rd respondent, respectively, contendedfor the opposite view viz. that the word “may” has to be given apermissive sense which vested a discretion in the Commissionereither to direct the employer to re-instate the workman or not.If the word “may” is interpreted in the latter sense, it merelygives permission or discretion or authorization to do somethingand no obligatory duty would then, arise.
The case of Blanka Diamonds(1) was cited in support ofthe proposition that word “may” operates merely to confer adiscretion on the Commissioner to decide whether or not “toorder such employer to continue to employ the workman”. Theabove decision, if I may say so, is rested on a rather simplisticview of the matter – ignoring significant issues. In the decisionin Blanka Diamond Case, the court had held itself aloof fromthe legislative intent. In the aforesaid case the view had beentaken that the word “may is indicative of choice betweenalternative decisions because the word “may” is permissive andnot mandatory, as the word “shall” is. But one knows that courtsdo very often interpret the word “may” as “shall” or “must” inorder to prevent justice becoming a slave of grammar.
CA
Eksath Ka( ffajapakse1- v- Commissioner of Labour
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It is a way of thinking, viz. that the word “may” in section 6of the Act vests a discretion in the Commissioner, to either re-instate or not, that is begotten of an isolationist interpretationwhich had paid no attention, whatsoever, to the legislative intent.To quote from Bindra, which is a well known treatise on thecanons applicable to construction <5f statutes: “In some casesthe legislature may use the word “may” as a matter of pureconventional courtesy and yet intend a mandatory force.”
in crder, therefore, to interpret the legal import of the word“may” t£e court has to consider various factors, namely, theobject and the scheme of the Act, the context and the backgroundagainst which the words have been used, the purpose and theadvantages sought to be achieved by the use of the word andthe like.
In the Blanka Diamonds Case, above-mentioned, the courthad been oblivious of the well known rule that the meaning of aword must be judged by the company it keeps in the same wayas a man is judged by his company. The context in which theword appears is the controlling, if not the decisive factor. Exanticedentibus et consequenttbus Jit optima interpretationwhich means that the best interpretation is made from thecontext. It is to be observed that section 6 reproduced above inwhich the word “may” occurs comes in the wake of section 5 ofthe relevant Act which reads thus: “Where an employerterminates the scheduled employment of a workman incontravention of the provisions of this Act, such terminationshall be illegal, null and void and accordingly shall be of noeffect whatsoever.”
It is to be repeated that it is only when (to use the verywords of section 6 of the relevant Act) “an employer terminatesthe scheduled employment of a workman in contravention ofthe provisions of this Act” that “the Commissioner may order
such employer to continue to employ the workman”
Section 6 of the Act must necessarily be read as referring backto the preceding provision i.e. Section 5. It is clear that the
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Section 6 of the Act has to be understood or interpreted in thelight of or against the backdrop of the circumstance adumbratedor contemplated in section 5 of the Act – the circumstance beingthat the termination of employment of a workman, incontravention of the provisions of the relevant Act viz.Termination of Employment of Workmen Act No.45 of 1971 shallbe of no effect whatsoever. From what has been said above, itwould be clear, that section 6 of the Act caters to thecircumstance or situation specified in section 5 which, as shownabove, states emphatically that termination of employment of aworkman in contravention of the provisions of the relevant Actis illegal and null and void, that is, destitute of any effectwhatsoever. In other words such a termination being whollyincapable of giving rise to or affecting any rights or obligations •the contract of employment will subsist and remain intact.Section 5 renders any termination of employment incontravention of the relevant Act absolutely illegal. And section6 states that the Commissioner “may order the employer tocontinue to employ the workman” in case the termination wasin breach of the provisions of the Act. Although the word “may”taken in isolation expresses permission or liberty, yet that term“may” acquires a compulsory force in circumstances where, aduty devolves on the authority to exercise that power which thatauthority was permitted or enabl by the statute to exercise. Thecase Macdougall vs. Patterson would be instructive in thisregard and it is illuminative to cite an excerpt from the judgmentof Jarvis C.J.: “where a statute confers an authority to do ajudicial act in a certain case, it is imperative on those soauthorized, to exercise the authority when the case arises, andits exercise is duly applied for by a party interested and havingthe right to make the application. Fbr these reasons, we are ofopinion that tihe word “may” is not used to give discretion, butto confer a power upon the court and judges and that the,exercise of such power depends not upon the discretion of thecourt or judges, but upon proof of the particular case out ofwhich such power arises.”
There have been a number of decisions concerning theinterpretation of the word “may” in which the word “may” was
CAEksath ridRdjapakse a U- Commissioner of Labour
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given a compulsoiy or mandatory force. To advert just to onemore case which is illustrative of the point, viz. that when thecircumstances specified by the statute exist or come intoexistence a duty arises to exercise the power although that powerhad been conferred on the authority by the use of permissivelanguage in the form of the word “may”. It was held in Sheffieldvs. Luxfordl3) that upon proof of the relevant facts the countycourt was bound to make the order where the ending Actprovided that the county court “may” make an order forpossesion in favour of the landlord. In that case, the proof ofthe specified circumstances created a mandatory duty to makethe order for possession.
When a statute entrusts or vests a power in a court ortribunal or some other authority for the purpose of, say,preventing any mischief or to effectuate or give effect to a legalright or protect the rights of any particular person or group ofpersons in certain specified or given circumstances it becomesthe imperative or inescapable, or rather the statutory duty, ofthe authority concerned to whom that power is granted, albeitin permissive and not in mandatory language, when thecircumstances contemplated or specified in the Act arise, toexercise that power to achieve that end or purpose for whichthe power was granted although the granting of such power iscouched in permissive language. In the case in hand, thecircumstance which makes it obligatory on the Commissionerof Labour to order the employer has arisen in consequence ofthe termination of the employment of the workmen incontravention of the provisions of the Act (At the hearing beforeme the finding of the Assistant Commissioner that thetermination was illegal was not contested and, in any event, noargument was put forward to the effect that the terminationwas lawful). When that condition, viz. the occurrence of the factof illegal termination of employment is fulfilled or satisfied theduty of the Commissioner to order the employer to continue toemploy the workman is activated as if no termination had takenplace at all. In this context, it is apposite to re-iterate that section5 of the Act keeps the contract employment intact or preserves
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it or maintains the same state of things, notwithstanding thetermination of employment, so far as the contract of employmentis concerned, by denuding the purported termination of anyeffect whatsoever. The fact that section 5 of the Act, as pointedout above, formally and unreservedly declares any terminationof employment, in breach of the Act, to be “null and void” callsfor remark in this context. Section 5 of the Act, which precedessection §, is designed to ward off all possible termination ofemployment in contravention of the provisions of Act No.45 of1971. It is somewhat irrational to suppose that the legislature,after having so sternly, decidedly and uncompromisinglydeclared in section 5 of Act that any termination of employment,in contravention of the provisions of the relevant Act to be utterlyvoid, would have relented in the very next succeeding section ofthe Act and in the same breath, so to speak, would have giventhe Commissioner a discretion whether or not to order the re-instatement of the workmen. When Section 5 of the Act declaresthat all termination of services of workmen in breach of theprovisions of the relevant Act is “illegal null void and accordinglyshall be of no force or effect whatsoever”, there is, at the lowest,an implicit recognition of the legal right of the workman toremain in employment notwithstanding the purportedtermination. A declaration of a right is ineffectual withoutprovision of machinery for the protection and enforcement ofthose rights. This is reflected in the oft-quoted Latin phrase ubijus, ibi remedium, which freely translated means where there isa right, there is a remedy. And, in fact, such machinery forenforcement of the workman’s rights, in the given circumstances,had been provided for by Section 6 of the Act – which requiresthe Commissioner to re-instate the workman although thedraftsmen has, perhaps, by force of habit used the word “may”to which draftsmen seem to be addicted to. The Courts andtribunals ought to be ever conscious that they have a generalduty to enforce legal rights. If the word “may” in section 6 of theAct is construed to invest the Commissioner with a discretion,either to re-instate the workman or not, that would lead tointolerable, if not UNDREAMT of results: for, if the Commissionerin the exercise of his discretion, which discretion will be conferred
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on him, if the word “may” is interpreted in a permissive, asopposed to an obligatory sense – then, it is the Commissioner,and not the employer who will, in fact, terminate the employment,by not performing his (Commissioner’s) statutory duty undersection 6 of the Act – the duty being “to order the employer tocontinue to employ the workman”cbecause, in so far as thepurported termination, by the employer is concerned, the lawwill take its inexorable course to ensure that such terminationis null and void. It is worth repeating that terminaticXi by theemploy^ in contravention of the provisions of the Act is whollydestitute of any effect since such termination is rendered “nulland voici”, as noted above, by section 5 of the Act. Because thetermination by the employer is void, it is as if such terminationhad never been made in die first place, and never existed. Andas the termination by the employer in circumstances specifiedin section 5 of the Act is no termination, in the eye of the law, itis the failure on the part of the Commissioner to order re-instatement, if, in fact, the Commissioner is vested with adiscretion under section 6 of the Act, either to order or not toorder the employer to continue to employ the workmen, thatwill produce the effect of and be tantamount to, termination ofemployment. Phraseology and choice of words in section 6 ofthe Act is revealing. The said section empowers theCommissioner, if termination of service had been in breach ofthe provisions of the Act, to “order such employer to CONTINUETO EMPLOY the workmen” which pre-supposes that theemployment had never been terminated. Section 6 of the Actdoes not contemplate a restoration or replacement of theworkman to a lost position or to a position held by himpreviously. Under section 6 of the Act the Commissioner willorder the employer to “continue to employ the workman” whichby necessary implication means that the workman,notwithstanding the illegal dismissal, yet remains in the employor service of the employer. Employment can be ordered to becontinued (as ordered by section 6 of the Act) as there had beenno break in the service.
This serves to further reinforce the point of view, (althoughno such point of view or argument was put forward at the
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hearing before me) that notwithstanding the termination ofemployment contrary to the provisions of the Act – contract ofemployment remains un-affected. So that it is only if theCommissioner fails to appreciate that termination ofemployment in contravention of the provisions of the Act imposesupon him an obligatoiy duty – to order the employer "to continueto employ the workman” – and so fails to order the employer tothat eifect – that termination will actually result
0
Interpretation of permissive language, introduce^ by theterm "may", as having a mandatory and imperative forcg, is alsoassisted by the fact that permission or power granted by suchlanguage has to be exercised not to defeat but rather to carrythe object or policy of the statute or of the provision of the lawinto effect. The power must be exercised in accord with the policyof the Act. Sometimes the statutes have a long title in which theprimaiy objects of the statute is spelt out. The relevant Act viz.Termination of Employment of Workmen Act No.45 of 1971,too, contains a long title in which the object of the statute isspelt out in a rather gingerly manner, as follows: “An Act to makespecial provision in respect of the termination of the services ofworkmen in certain employments by their employers”. One canalmost divine that the object of the statute is to guard againstand protect workmen from arbitrary and illegal termination ofservice of the employees by their employers. And, in fact, specialprovision has been made in the most stringent terms, leavingno discretion or loophole, making all termination of services ofworkmen contrary to the provisions of the relevant Act, nulland void. The phraseology of section 5 of the Act, as explainedabove, is more explicit, open and undisguised than the wordingof the title. Section 5 of the Act does not mince matters anduses the strongest language conceivable in making it clear thatall termination of employment in breach of the law is abhorrentto and utterly repugnant to the policy of the Act. It is worthrecalling how forcibly the termination of employment, in breachof the provisions of the relevant Act, is condemned in section 5
of the Act: “such termination shall be null and void and
accordingly shall be of no effect whatsoever.” It is, to say the
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least, Implicit in the long title that the object of the Terminationof Employment of workmen Act No. 45 of 1971 was to redress aparticular mischief viz. termination of employment of workmenwithout cause in the exercise of arbitrary, if not despotic,discretion, whenever the employer^wished, which object hadbeen made more explicit in the enacting provision i.e. section 5of the Act reproduced above. Manifest purpose of section 5 ofthe 4ct is, to wholly protect the workmen against the teigninationof hib service contrary to provisions of the relevant Act and tokeep the contract of employment intact notwithstanding suchillegal termination.
And one cannot conceive of a better way to preserve thecontract of employment and keep alive the duties andobligations of the employer thereunder than, as section 6 of theAct itself required, “to order the employer to continue to employthe workman”.
The long title of the relevant Act shows that it is a remedialstatute and even assuming that there is uncertainty as towhether the word “may” in section 6 of the Act is enveloped indoubt or ambiguity as to whether it should be given a compulsoiyforce or not, it is cardinal canon of interpretation that suchstatutes, or any statute, for that matter, has to be interpreted soas to suppress the mischief and advance the remedy. And, inthis context, that would involve the term “may” in section 6 ofthe Act being interpreted in an obligatory sense i.e. “as shall”which will cast a mandatory duly on the Commissioner “to orderthe employer to continue to employ the workman”. The mischiefaimed at and sought to be redressed, by the Act is terminationof employment of workmen at the will and pleasure of theemployers.
There is at least one other factor contributing or helping toconstrue the term “may” in section 6 of the Act in an obligatoiyor imperative sense i.e. the incapability of using section 6 of theAct to make an award of compensation as the 1st respondent
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(Commissioner of Labour) had erroneously done. TheCommissioner is not at all authorized or empowered to makean order for compensation under section 6 of the Act which
reads thus:Commissioner may order such employer
to continue to employ the workman with effect from a date
specified in such order …?and to pay the workman his
wages and all other benefits which the workman would haveotherwise received if his services had not been so terminated
” It is worth observing that section 6 (excerpt of wh&h is
reproduced above) speaks of “wages and other benefits”. Thatexpression "wages and other benefits” cannot be construed asembracing compensation. The meaning of the expression “otherbenefits” has to be restricted to things which is ejusdem generiswith the word “wages”.
In the interpretation of statutes and so forth where generalwords follow persons or things of specific meaning, the generalword or words will be construed as applying only to things ofthe same class or kind as those specifically mentioned. Ejusdemgeneris doctrine has been explained by Lopes L. J. in the caseof Smelting Co. of Australia Vs. Commissioner of InlandRevenue141 as follow: “that where general words immediatelyfollow or are closely associated with specific words, theirmeaning must be limited to the specific words.”
The term “wages” employed in section 6 of the Act meansremuneration payable for a given period to a workman forpersonal services. The term “wages” can include salaries,commissions, bonuses, tips i.e. presents for service and anyother similar payment received from the employer. The term“wages” indicates payment for services rendered usually underor in terms of the contract of employment whereas compensationwould ordinarily mean reparation for an injury or damage ofany description. In section 6 of the Act the term “wages” isobviously used in the sense of a fixed payment to be made bythe employer at regular intervals, very often monthly, to aworkman in return for the work or services rendered by theworkman. It is to be observed that in section 6 A(l) of the
CAEksath«— ' ■'‘■■a a Commissioner of Labour149
lRajapakse rdena, J.)
(Kulatti:—1
relevant Act the term ,ifcompensation” is used incontradistinction to the term “wages”. To quote the said section6A(1), introduced by Amendment Law No.4 of 1976, which isworded thus: “where the scheduled employment of anyworkman is terminated in contravention of the provisions ofthis Act in consequence of the closure by his employer of anytrade industry or business, the Commissioner may order such
employer to pay such workmanany sum of money as
compensation as an alternative to the reinstatement of such
workmgn” (Section 6A (1) in the Amendment Law No. 4
of 197Q takes effect as section 6A of the principal enactment.As this section had been referred to in the submissions of thelearned counsel as 6A(1), I shall also identify or refer to thesection as such.) section 6A( 1) has in contemplation a situationwhere a closure of the business or trade had been broughtabout. In such a case, section 6 A(l) makes it incumbent onthe employer to pay the workman, what one may callcompensatory damages, that is, a payment, made once and forall, not regularly, as in the case of wages, or salary – tocompensate the workman for the injury or loss that he hadsustained directly in consequence of the loss of employmentcaused by the closure. What I am seeking to explain is this, thatis, that “compensation” is not a thing of the same class or kindas “wages” and as such in the expression that is employed insection 6 of the Act i.e. “wages and all other benefits” – the term“benefits” cannot be interpreted as embracing “compensation”which is paid as damages to make good the harm or injurycaused by the loss of employment, and not paid, like wages,under the contract of employment itself, whilst such contractsubsists. In this context, i.e. in section 6 of the Act the generalwords, are : “all other benefits” whereas the particular or thespecific word or expression is “wages”. As such, by virtue of thewell established rule in the construction of statutes, the generalterm, which, in this instance, is “benefits” is to be read ascomprehending only things of the same kind as that designatedby the preceding particular or specific expression, or rather theword viz. “wages”. As the words “other benefits” in theexpression “wages and other benefits” cannot be interpreted to
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mean compensation, there is no scope under section 6 of theAct to award compensation to a workman whose service hadbeen terminated in contravention of the provisions of the Act.Even assuming, for the sake of argument, that the word “may”in section 6 of the Act can be interpreted as merely permissiveand enabling – yet, even them, the Commissioner can, under thesaid section 6, only decide whether or not to order the employerto continue to employ the workman. The commissioner cannotunder section 6 of the Act order Compensation to be paid incase he decides not to reinstate the workman because,^ I fraveexplained above, the expression in section 6 of the Act viz, “wagesand other benefits” is not susceptible of the interpretation ofcompensation. I have also shown above that the relevant Act insection 6 A{ 1), that is, where there is a closure of the businessor trade etc., has specifically and in exact terms authorized orordained the payment of compensation whilst section 6 of theAct which has in contemplation an illegal termination of servicesof a workman, omits all mention of compensation. The orderthat the Commissioner had made directing the employer {3rdrespondent) to pay compensation finds no sanction in section6 of the Act. Such an order is clearly tantamount to an ultravires exercise of power. When the services of a workman isterminated, in contravention of the provisions of the relevantAct, the Commissioner is empowered under section 6 of theAct, to reproduce the relevant excerpt of the said section, only:“to order such employer to continue to employ the workmanwith effect from a date specified in such order, in the samecapacity in which the workman was employed prior to suchtermination and to pay the workman his wages and all otherbenefits which the workman would have otherwise received ifhis services had not been so terminated;”
So that if, in fact, the Commissioner is vested with adiscretion either to order the employer to continue to employthe workman or not, which discretion too, the commissionerwill attract to himself only if the word “may” is construed in apermissive sense, the workman will not get any relief whatsoever,in the event of the Commissioner deciding not to re – instate the
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workman, even when the termination of service is illegal andnull and void – because, as explained above, the Commissioneris not at all authorized by the relevant section (6) to awardcompensation, and if he does so, i.e. if the Commissioner awardscompensation, it would, clearly, be beyond his powers. Thatindeed would be an intolerably oppressive result from the stand- point of the workman and law is not such a veritable ass,although it is reviled as such, at times. There are certainconsequences which the legislature could be presurrfcd neverto hav$ intended and an interpretation which would beproductive of such a consequence is always to be avoided – if itis possible to do so. It is unthinkable that the law would soprecisely and forcibly condemn termination of service, incontravention of the provisions of the relevant Act, as, in fact, ithad done in section 5 of the Act, as being pull and void andwholly destitute of any effect and yet leave the workman whohad been so dismissed in that awkward position, that is, withoutre-instatement, and also without compensation for loss ofemployment. As explained above, of one thing one can be certain,if of no other, that is, that the terms of section 6 do notcontemplate or authorize the payment of compensation. And ifthe word “may” in section 6 of the Act is interpreted in apermissive sense that will vest the Commissioner with adiscretion to re-instate or not-even when the termination ofservice of the workman is utterly illegal. So that if theCommissioner decides, in the exercise of his discretion, not to“order the employer to continue to employ the workman” – theworkman will lose the job and will also not be compensated.Such a course of action will be somewhat reminiscent of thefamous amusing anecdote of SEVERING the neck of the goatand also smashing the pot to smithereens to retrieve the head.The legislature could not be presumed to have intended such aconstruction which would be contraiy to good sense and justice.The very fact that law, as enunciated in section 6 of the Act,does not have in contemplation the payment of compensationto a workman whose service had been illegally terminated isfinal proof of die fact that re-instatement of such workman ismandatory because it is unthinkable that law would refrain from
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awarding any relief whatever. As re-instatement or rather “toorder the employer to continue to employ the workman” iscompulsory – the question of payment of compensation forwrongful dismissal does not arise, as it does in the case of closureof business – which latter situation, as explained above, iscatered for by section 6 A(P) of the amending Act No. 4 of 1976.
That the words "and other benefits” in the expression “wagesand othet benefits” occurring in section 6 of the Act does notconnote compensation (that a workman in pertaincircumstances would be awarded, be it noted, in consequenceof the termination of his service) is revealed by the wordingemployed in the said section which, to repeat the relevant extract,is as follows: “where an employer terminates the scheduled
employment of a workmanthe Commissioner may order
such employer to continue to employ the workman, with effect
from date specified in such order.and to pay the
workman his wages and all other benefits which the workmanwould otherwise have received if his services had not been soterminated”.
In terms of section 6 of the Act the workman can get onlysuch benefits as he would have got if his service had not beenterminated and not compensation if the service had, in fact,been terminated. This means that the workman would beawarded such wages as he would have received had his servicesnot been terminated. Likewise, the workman would also beawarded such “other benefits” as he would have been entitledto, had he remained in service or as if his service had not beenillegally terminated. So that under section 6 of the Act, both thewages and benefits would be awarded as if the workman hadremained in service and not lost his employment. This featureof section 6 of the Act viz. that payment of compensation forloss of employment is not sanctioned by section 6 of the Act,further fortifies the view that re-instatement is the solitaryremedy available thereunder and payment of compensation isnot at all envisaged. As the re-instatement is the one and only
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1 _(KulatUSdena, J.)

remedy for termination of employment, in contravention of theprovisions of the Act, the word “may” in section has of necessityto be given a mandatory sense.
It remains to consider whether the Commissioner of Labourhas to be directed by an order of mandamus to order the 3rdrespondent (Jet Match Co. Pvt. Ltd.,) to continue to employ theworkman as ordained by section 6 of the Act. In thecircumstances of this case, as explained above, thefre was amandatory duty cast upon the Commissioner of Labour to haveacted under section 6 of the Act and to have ordered theemployer (3rd respondent) “to continue to employ the workmanand to pay the wages and all other benefits” which mandatoryduly the Commissioner had neglected to perform. In cases ofthis sort the usual order to the inferior tribunal that would bemade, almost routinely, would be couched in language such asthis: “hear and determine according law or to act according tolaw”. If I were to make an order of that sort the Commissionerwill be initiating a repetitive process and there is the greaterrisk of the Commissioner repeating the same mistake as he hadmade in the order complained of, considering the negligent wayhe had acted. As such I propose to adopt a more interventioniststance. It is to be observed that the learned counsel for thepetitioner had pointed out that the order of the Commissionerawarding compensation only had been made under section 6A( 1) of the Act which is, in fact, the section mentioned in theorder. The learned counsel for the petitioner submitted that thecommissioner had awarded compensation under section 6 A( 1)of the Act, as the Commissioner was in fact empowered, or ratherrequired, to do, when, in fact, the Commissioner should haveacted under section 6 of the Act. It will be recalled that section6 A( 1) comes into play only when the service of the workman isterminated in consequence of the closure of the business. Inthis case, admittedly, there is no closure of business, as such.The Commissioner in his affidavit submitted to this court hadaverred that the reference to section 6 A(l) in his order, is atypographical error. If, in fact, it is a typographical error, then itis proof of the slipshod and slovenly manner he does things. He
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Sri Lanka% [2001] 2 Sri LJL
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should have read over his order and corrected it before he signedthe order, if it can be called so. I cannot bring myself to believethat section 6 A(l) was mentioned un-intentionally or was aslip of the pen, so to speak. Typographical error is an errormade in typing or printing. The reference section 6 A( 1) is adeliberate reference to it. The stenographer or the typist couldnot on his own have typed section 6 A(l) if, in fact, theCommissioner did not, in fact, mention section 6 A(l) in hisorder. Typist or the stenographer would not have known ofsection 6 A( 1) or would not have typed 6 A( 1) instead df 6 if, infact, the Commissioner had not referred to section 6 A( h). Thereis, in fact, a section numbered 6 A( 1) in the amendment lawNo.4 of 1976 and section 6 A( 1) would have crept in to theorder of the Commissioner as a result of somebody who knewabout section 6 A(l) making a specific reference to it. And thatsomebody must necessarily be the Commissioner because itwas he who had signed the order. The fact, that theCommissioner did not correct 6 A( 1) to read as 6, after readingit over, if, in fact, he did so, is further proof of the fact that mentionof section 6 A(l) is attributable to his negligence and/orignorance. The averment in the affidavit that reference to section6 A( 1) is a typographical appears to be false and the conduct ofthe Commissioner deserves to be censured in the most stringentterms. By seeking to airily explain away things the Commissioneris seeking to brazen things out. The mention of section 6 A( 1)in the order of the Commissioner led to needless confusion atthe argument before me and complicated an otherwisestraightforward matter.
I would prefer to directly order the Commissioner, by anorder of mandamus, to make order in pursuance of section 6 ofthe Termination of Employment of Workmen Act No. 45 of 1971,and I do so accordingly. To elucidate the matter further, lest hegoes astray, once again, the Commissioner is bound by this orderof mandamus to order the 3rd respondent to continue to employall the workmen, on whose behalf this application has beenmade to this court, and also order the 3rd respondent to paythe workmen their wages and “all other benefits” which the
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CAEksarRajapakse v* v. Commissioner of Labour
/ v. ..(KulatilArdena, J.)
workmen would have received if their services had not beenterminated. The Commissioner has found as a fact or hadreached the finding that the termination of services of all theworkmen concerned was illegal and contraiy to the provisionsof the relevant Act. In that state of facts, the Commissioner’sduly is one prescribed or laid dowif by law – his legal duty, beingalso a mandatory one, without an option, to order the employerto continue to employ the workmen and pay all other benefitsto which the workmen would have been otherwise entitled.
t
For the foregoing reasons I do hereby grant the followingreliefs:
an order of certiorari quashing or nullifying the decisionsmade by the Assistant Commissioner and theCommissioner of Labour on 22.01.1999 and24.02.1999 marked P13 and P14, respectively;
an order of mandamus directing the Commissioner ofLabour (1st respondent) to act under section 6 of theTermination of Employment Act No. 45 of 1971.
The Commissioner will bear in mind, as noted above, thatthe duty to reinstate the workmen, as are the other duties i.e. topay “wages and other benefits”, imposed upon him under section6 of the Act, is mandatory and compulsory and that he has nooption in the matter.
Application allowed.