YTJA YA TIL A KE, J.—Atq/j aydkkara v. TJ cltiara'.chi
-Present: Wijayatilake, J.
N ANA YAKKAR-A, Appellant, and K. D. P. HE IT LA R ATC111el uL, Respondents
S. O. 113160—Labour Tribunal, 1/31G93
Industrial Disputes Act—IliglU of appeal—■** Point of law "—.4 ward of compensation—Duty of Labour Tributial to consider basis of compensation.
When a Labour Tribunal awards a sum of money ns compensation to anompluyeo whoso services have been terminated, tlio failure of tho Tributinl toconsider tho basis of computation in awarding the sum amounts to a questionof law.
./a-PrEAL from an order of a Labour Tribunal.
G. G. Mendis, for the applicant-appellant.
TF. Alhulalhmudali, with N. T. S. Knlarahte, for the employers-respondents.
February 22, 1971. Wijayatilake, J.—
l’n this case the learned President has held that the- terminationof the applicant's services is not justified, but having regard to thecircumstances lie has however held that the relief of re-instatement willnot be appropriate and therefore suitable compensation -would be justand equitable. He has accordingly awarded a sum of its. 3,255 ascompensation.
Mr. Mendis, learned counsel for the appellant, submits that the sumawarded is utterly inadequate in the circumstances of the instant caseand he strenuously submits that the learned President has conspicuouslyfailed to give the basis of his computation in awarding this sum. Helias drawn my particular attention to the judgment of 8. S. Shelly v.Bharat Nit]hi Ltd.,1 where it was lield—
“ That the monetary value of the benefit of reinstatement is to becomputed not on the basis of a breach of the employment nor on thobasis of a tort alleged to' have been committed by the employer byreason of the non-in-pleuicntation' of the direction for jcinstatementcontained in the award. The computation has to be made by thoIndustrial Tribunal having regard to all the circumstances of the case,such as, the terms and conditions of employment, the tenure of service,the possibility of termination of the employment at the instance ofeither party, the possibility of retrenchment by the employer orresignation or retirement by the employee and even of the employer-himself ceasing to exist/ or of- the employee being awarded variousbenefits including reinstatement under- the terms of future awardsby Industrial Tribunals in the event of industrial disputes arisingbetween the parties in the future. ”
1 1958 A. I. P. (Supreme Court) 442.
WIJAYATILA.KLE, J.—Nanayakkara v. HcUiaraicht
In the order made by the learned President he has not set out any ofthese items. Counsel accordingly contends that this is an arbitraryfigure without any relation to the facts.
The applicant had been appointed Assistant Manager of PrcmasiriStores, Colpetty, on 22.11.5S on a monthly salary of Rs. 100 and he hadcontinued to be in service till 2S.5.67 when he was drawing a salary ofRs. 465/- per month, on which date he was dismissed. At the time ofdismissal he was 47 years of age. Counsel further submits that theapplicant in various ways has been of great assistance to the proprietor .in his advancement both in his business and otherwise and the treatmentmeted out to him ultimately is not at all justified. He states that a sumof about Rs. 15,000 would be an appropriate figure on the basis of theprmcijdcs set out in the Indian case aforementioned.
Mr. Athulathmudali, learned counsel for the respondent, submits thatthe appeal does not raise, a question of law, as the President is not boundby the Evidence Ordinance. He submits that the sum awarded isquite adequate and the President is not bound to set out in his order thevarious heads which are referred to in the Indian case. The principalmatter which has to be taken into consideration is the liability of theemployer to pay and the conduct of the employee. It would appearaccording to the employer, the applicant had taken a loan ofRs. 1,650. He received the full Provident Fund benefits. At the timeof his wedding he had been given a gift of Rs. 750 and every 3'ear hehad a month’s salary as bonus and also a suit. He also states that thecapital of this firm was only Rs. 30,000 in 1953 and on 1.4.67 the 1strespondent transferred it to his brother the 2nd respondent for a sum ofRs. 40,000. He stresses the fact that although the learned Presidenthad held that the termination of services was not justified, he hadcome to the conclusion that it would not be in the interests of this firmto reinstate the applicant. This is a feature to be kept in mind w hencomputing the compensation.
In my opinion the preliminary objection taken by Mr. Athulathmudalithat this appeal cannot be entertained is without merit, as the failureto consider the basis of computation would amount to a question of law.
I have given my anxious consideration to the principles set out in theIndian case with which I agree with respect, and in all the circumstancesI think it would meet the ends of justice and equity if a further sum ofRs. 1,000 is added to the Award made by the learned President. Imake order accordingly.
Subject to this variation the appeal is dismissed. I make no orderas to the costs.
G. NANAYAKKARA, Appellant, and K. D. P. HETTIARATCHI et al., Respondents