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
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
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.
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.