021-SLLR-SLLR-1997-V3-ELPITIYA-PLANTATIONS-LTD.-v.-JAYASINGHE-AND-TWO-OTHERS.pdf
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Elpitiya Plantations Ltd. v. Jayasinghe and Two Others
189
ELPITIYA PLANTATIONS LTD.
v.
JAYASINGHE AND TWO OTHERS
SUPREME COURT.
DHEERARATNE. J.,
WIJETUNGA, J., ANDANANDACOOMARASWAMY, J.
S.C. 84/96
C. KANDY (F) 73/94M.C. NUWARA ELIYA 74223SEPTEMBER 27. OCTOBER 10. 1996.
Industrial Disputes Act – Section 40( 1) – Dismissed employee reinstated byLabour Tribunal with backwages – Appeal dismissed by the Court of Appeal -Backwages not paid – Employer prosecuted in the Magistrate's Court -Conviction – High Court Affirmed conviction and sentence – Is there a liability onthe Employer to pay the Employee's salary when the matter is pending before theCourt of appeal.
The Labour Tribunal on 17.4.84, ordered the reinstatement of the dismissedemployee with six months backwages with effect from 21.5.84. The Employerappealed to the Court of Appeal and the Court of Appeal on 12.9.90 dismissedthe appeal.
Thereafter the employee was reinstated but the backwages for the period 21.5.84to 31.12.90 were not paid. Proceedings were instituted in the Magistrate's Courton 4.9.91 under section 40(1) of the Industrial Disputes Act which culminated inthe Magistrate Court convicting the employer-appellant and ordering to recoverthe said sum as if it were a fine; with a default sentence. The High Court affirmedthe conviction and the sentence. On appeal it was urged that the appellant couldnot have reinstated the employee as at that date because at that time in theexercise of a statutory right granted to him in terms of the Industrial Disputes Acthe had preferred an appeal, and that if there was a liability to reinstate theEmployee it arose only from 12.9.90.
Held:
(i) The nature and character of the Orders made by the Magistrate's Court aresuch that no law need say that a Magistrate must stay his hands in executing hisOrders when they are in appeal.
In the case of the Orders of the Tribunal the same considerations do not apply, asregards the executing of a decree of a District Court, it would appear that theordinary principle of law is that it is lawful to execute a decree in appeal.
(it) The intention of the legislature appears to have been to make the act of non-compliance of a Tribunals order a penal offence, so that immediately upon a
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conviction in the same proceedings the benefits denied to a workman resultingfrom such non-compliance could be obtained by the workman expeditiously andinexpensively.
(iii) Section 40(1) (q) should be interpreted so as to promote the generallegislative purpose underlying those sections. The Industrial Disputes Act doesnot prohibit execution of the order made by a Tribunal pending appeal, the dateof offence of failure to comply with the Tribunals order by not reinstating theemployee would be 21st May 1984.
Per Dheeraratne J.,
“If however an employer is charged at a time when an appeal is pending from theTribunals order, a Magistrate being so informed should lay by the case, so as toavoid that anomaly.
This should be done by not because the employer has committed no offence butbecause finality has not been reached in the Labour Tribunal Order."
Case referred to:
Federal Steam Navigation Co. Ltd., and Another v. Department of Trade andIndustry – 1974 2 All ER 97.
APPEAL from the High Court of Kandy.
Romesh de Silva P.C. with Palitha Kumarasinghe tor appellant.
Uditha Egalahewa S.C. for 1,2 respondents.
G. Alagaratnam with M. Adomally and Ms. Nazzi) Buharylor added respondents.
Cur. adv. vult.
November 11. 1996.
DHEERARATNE J.
This is an appeal from a judgment of the High Court affirming theconviction and sentence passed by the Magistrate's Court in aprosecution under subsection 40(1) of the Industrial Disputes Act.
Facts leading to the prosecution
The intervenient respondent (the employee) filed action in theLabour Tribunal on 5th May 1983 alleging that his services werewrongfully terminated by his employer; among other reliefs, heclaimed reinstatement with backwages or compensation. After aninquiry, the Tribunal made order on 17th April 1984, directing theemployer to reinstate the employee with effect from 21.5.84 and to
SC Elpitiya Plantations Ltd. v. Jayasinghe and Two Others (Dheeraratne, J.)191
pay six months backwages fixed at Rs. 6054 to the office of theAssistant Commissioner of Labour on or before 31.5.84. Theemployer appealed from that order to the Court of Appeal. The Courtof Appeal, on 12.9.90 pronounced judgment dismissing the appealwith costs. It is common ground among the parties that thereafter, theemployee was reinstated in the sense that he was permitted toresume his employment under the employer. It is not disputed thatthe employee received no wages during the period 21.5.84 to31.12.90 and that they add up to a sum of Rs. 428,385.14 cts. It wasin these circumstances that the proceedings were instituted in theMagistrate's Court on 4.9.91 by the complainant labour officer, whichculminated in the Magistrate's Court convicting the appellant andordering to recover the said sum of money as if it were a tine and indefault of payment, imposing a sentence of 18 months imprisonment.
The Charge and the relevant provisions of the Industrial DisputesActTranslated to English, the charge sheet which is in Sinhala reads:-
"That you … while being the employer, did fail to comply with theorder given to you by the Labour Tribunal dated 17th April 1984 incase No. 9/1235783, in that;
on or about 31st May 1984, you did fail to forward to theCommissioner of Labour Hatton, the sum of Rs, 6054 mentioned inthe said order payable to employee …;
on or about 21st May 1984, you did fail to reinstate employeenamed
and thereby, within the jurisdiction of this court, at Nuwara Eliya, youdid commit an offence under section 40(1) (q) punishable undersection 43(4) read with sections 43(1) and 43(2) of The IndustrialDisputes Act No. 43 of 1950 as amended."
The relevant words of the subsections of the Industrial Disputes Actapplicable to this case read;
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40(1) “Any person who (q) being an employer, fails to comply with anorder made in respect of him by a labour tribunal; shall be guilty ofan offence under this Act".
43(1)"… every person who commits any offence under this Act shallbe liable on conviction after summary trial before a magistrate to afine not exceeding five hundred rupees or to imprisonment of eitherdescription for a term not exceeding six months or to both such fineand imprisonment”.
43(2) ‘On the conviction of any employer for failure to comply with …an order of any labour tribunal requiring such reinstatement, suchemployer shall be liable –
to pay, in addition to any punishment that may be imposedunder subsection (1), a fine of rupees fifty for each day on whichthe failure is continued after conviction thereof; and
to pay such remuneration which would have been payable tohim if he had been in such service on each such day of theperiod commencing on the date on which he should have beenreinstated in service according to the terms of the … order andending on the date of the conviction of such employer, computedat the rate of salary or wages to which he would be entitled if hisservices had not been terminated.
Any sum which an employer is liable to pay in para (ii) of thissubsection may be recovered on the order of the court by which hewas convicted as if it were a fine imposed on him by that court andthe amount so recovered shall be paid to the workman”,
43(4). "Where an employer is convicted by a court for failure tocomply … with any order of any labour tribunal … relating to thepayment of any sum of money by such employer to the workman, orto grant any benefit to which that workman is entitled, the court may,in addition to any other sentence that it may impose on suchemployer, order that sum to be paid, or, if such benefit is capable ofbeing computed in terms of money, that such amount as may bedetermined by the court (whose determination shall be final) as thevalue of such benefit be paid, within the period specified in that orderof the court, it may be recovered on the order of the court as if it werea fine imposed by the court".
SC Elpitiya Plantations Ltd v. Jayasinghe and Two Others (Oheeraratne, J.)193
The effect of reinstatement.The proposition that reinstatement implies restoration of the statusquo and the employee is entitled to be restored to the same positionwith all the benefits as if he had never been discharged admits nodoubt. Rideout’s Principles of Labour Law 5th Edition at page 171states – “Statutory efforts have been made to ensure that the firstremedy an industrial tribunal considers if it finds a dismissal unfair, isreinstatement or re-engagement. The difference between the two isthat reinstatement envisages return to the same job as if the dismissalhad never occurred, and therefore with wages in the interval betweendismissal and reinstatement. Re-engagement involves re-employment by the same employer, his successor or an associateemployer, in comparable, or otherwise suitable, employment on termsspecified by the tribunal and with compensation as the tribunalconsiders just and equitable." This is the settled law and it requiresno labouring at my hands. Although arguments have been presentedon behalf of the appellant in both Courts below that there was noliability on the part of the employer to pay the employee’s salary dueto him for the period 21,5.84 to 31.12,90 amounting toRs. 428,385.14 cts„ Mr. Romesh de Silva PC., quite rightly admittedthat this amount is legally due from the employer. That is not the issuein this case. The charge against the appellant was that he committedan offence; and the provisions for the recovery of what is due to theemployee could operate only if the appellant was rightly convicted ofthe offence he was charged with. [See subsection 43(2); "On theconviction of any employersubsection 43(4) "Where an employeris convicted …”]. Therefore the real issue in this case is whether theappellant’s conviction is correct. Learned President's Counselcomplained that the appellant was convicted on the basis ofequitable considerations by both Courts below and that on readingeach of the judgments one cannot fail to get the impression that themain consideration in both judgments was to discover whether thebenefit was legally due from the appellant or not. In fairness to bothCourts below, I must say that such an approach was inevitable,because the principal submission for the defence in both Courts wasthat the amount of money was not legally due from the appellant.
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Consideration of the charge
As could be seen, the charge specified two acts of omission whichwere alleged to have been committed on or about two particulardates, whereby the offence of failure to comply with the LabourTribunal order dated 17.4.84, was committed. Let me take the first ofthese acts – that on or about 31.5.84 the appellant failed to forward asum of Rs. 6054 to the Commissioner of Labour Hatton. It seems tome that the learned magistrate took no consideration of this act andno relief was granted to the employee on account of that act.The sumof money relating to that act, according to learned State Counsel, hadalready been paid to the Commissioner of Labour at the time theprosecution was instituted. This explains why the learned Magistratechose to ignore that act of omission. Nevertheless, if the second actcomplained of was committed, it would have been sufficient to bringhome the conviction.
Let me now come to the second act of omission specified in thecharge, namely that the appellant, on or about 21st May 1984 failedto reinstate the employee. Learned President's Counsel for theappellant contended that the appellant could not have reinstated theemployee as at the date mentioned, because at that time, in theexercise of a statutory right granted to him in terms of the IndustrialDisputes Act, he had preferred an appeal to the Court of Appeal; thatif there is a liability on the part of the appellant to reinstate theemployee, that liability across only from 12.9.1990 when the Court ofAppeal dismissed the appeal; that when the appeal was preferredthe order of the Tribunal was “held in abeyance”. Both learned StateCounsel and Mr. Alagaratnam, learned counsel for the employee,contended that regardless of whether an appeal was preferred or not,the appellant was bound to reinstate the employee from 21.5.84.Mr. Alagaratnam further submitted that what is “held in abeyance" isnot the liability or obligation to comply with the order of the tribunal,but steps taken by the commissioner in instituting a prosecution.Unfortunately no authority was cited by either learned counsel insupport of the twin facets of the theory of “holding in abeyance”.
In my view, the answer to the questions as to when and whetherthe offence of failure to comply was committed, should be foundwithin the confines of the Industrial Disputes Act itself. Although
SC Elpitiya Plantations Ltd. v. Jayasinghe and Two Others (Dheeraratne, J.)195
subsection 31D (5) (and presently 31D (9)) after the amendmentNo. 32 of 1980 states that provisions of Chapter xxviii of the Code ofCriminal Procedure shall mutatis mutandis apply to all mattersconnected with the hearing and disposal of appeals on orders madeby the Tribunal, one has to bear in mind that the nature and characterof the orders made by the Magistrate’s Court differ markedly fromthose made by the Tribunal. In fact orders made by the Tribunal areakin in content to those made by a Court exercising civil jurisdiction.The nature and character of the orders made by the Magistrate'sCourt are such that no law need say that a Magistrate must stay hishands in executing his orders when they are in appeal. In the case ofthe orders of the Tribunal, the same considerations do not apply. Asregards the execution of a decree of a District Court, it would appearthat the ordinary principle of law is that it is lawful to execute a decreepending appeal. This principle, in my view, is mirrored in the openingwords of section 761 of the Civil Procedure Code which areexpressed in the negative. They read, “No application for executionof an appealable decree shall be instituted or entertained until afterthe expiry of the time allowed for appealing there from;…"
The intention of the Legislature appears to have been to make theact of non-compliance of a Tribunal's order a penal offence, so thatimmediately upon a conviction, in the same proceedings the benefitsdenied to a workman resulting from such non-compliance could beobtained by the workman expeditiously and inexpensively, withoutresort to other modes of recovery. Subsection 40(1 )(q) should beinterpreted so as to promote the general legislative purposeunderlying those sections. Such a purposive approach of statutoryconstruction has been applied to penal provisions, (See the majorityjudgment in Federal Steam Navigation Co. Ltd. and Another v.Department of Trade and Industry(1). In my view, if a literalconstruction is given to subsection 40(1) (q), that would advance thelegislative purpose.
The Industrial Disputes Act does not prohibit execution of an ordermade by a tribunal pending appeal; on the other hand the verywording of subsection 40(1) (q) seems to point in the oppositedirection. What reason was there for the legislature to mention only aLabour Tribunal in that subsection? Why was no reference made tofailure to comply with orders of the Appellate Courts? The absence of
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restrictive words “provided the order is not in appeal" or similar wordsto that effect, strengthens the view that the legislature intended tomake the employer’s failure to comply with the order made by theTribunal an offence, even pending appeal. Therefore, the date ofoffence of failure to comply with the Tribunal's order by not reinstatingthe employee would be 21st May 1984 as correctly mentioned in thecharge.
I will now deal with the submission of learned President's Counselthat if a construction other than what he contended is given, theappellant could have been charged on 1st June 1984 andconvicted; thus if the appeal was allowed in 1990, he submitted,there would be an anomaly. This anomaly will not arise, like in thepresent case, if the prosecution is instituted after the appeal isdecided. If however an employer is charged at a time when anappeal is pending from a Tribunal’s order, a magistrate being soinformed, should lay by the case, so as to avoid that anomaly. Thisshould be done by the Magistrate not because the employer hascommitted no offence but because finality has not been reached inthe Labour Tribunal order.
ConclusionThe Magistrate has imposed a sentence of 18 monthsimprisonment in default of payment of the fine of Rs. 428,385.14 cts.The default sentence does not appear to conform with the provisionsof section 291 of the Code of Criminal Procedure as it exceeds one-fourth of the maximum term of imprisonment fixed for the offence.Therefore, it is reduced to one month's simple imprisonment Subjectto the abovementioned variation, the conviction and sentence areaffirmed and the appeal is dismissed. The Registrar of this Court isdirected to send the record back to the Magistrate's Court as early aspossible.
WMETUNGA, J. -1 agree
ANANDACOOMARASWAMY, J. – I agreeAppeal dismissed.
Sentence varied.