Gunaselvam v Commissioner of Labour and others
COMMISSIONER OF LABOUR AND OTHERSCOURT OF APPEALWIJAYARATNE, J. ANDSRIPAVAN, J.
C.A. 757/2000July 22, 2004
Termination of Employment of Workmen (Special Provisions) Act, No. 45 of1971 sections 2, 5 and 6 – Termination within section 2 – What are the ordersthe Commissioner could make?
I) When the Commissioner holds that the termination falls within the ambit of.section 2, the Commissioner is obliged to make a determination in terms ofsection 5 and to make an order in terms of section 6.
Per Wijeratne, J.
“The document communicating the order does not contain such a determi-nation or an award – it is only an award of 3 months salary in lieu of 3months notice – it does not fall within the requirement of section 6.
APPLICATION for a writ of certiorari / mandamus.
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K. Kanag-lswaran, P.C. with C.L.Wickremanayake, M.A. Sumanthiran andNigel Bartholomeus for petitioner
A. Gnanathasan, Deputy Solicitor-General, with Vikum de Abrew for 1st and2nd respondents.
Hemasiri Wittanachchi with S.N. Vijithsingh for 3rd respondent.
August 3, 2004WIJAYARATNE, J.
The petitioner preferred this application against the three 01respondents named in the petition, who are the Commissioner ofLabour, Assistant Commissioner of Labour (Termination) and theCompany against whom he has claimed reliefs, in the nature of writof certiorari to quash the order of the 2nd respondent dated 16.5.00marked X7 and writs of mandamus as prayed for in paragraphs c,d and e of the prayer to the petition.
The application was made on the basis that the petitioner whoseservices as a workman in the 3rd respondent company was termi-nated with effect 15.3.95 by letter marked “X”. The petitioner made 10an application to the 1st respondent in terms of the provisions ofthe Termination of Employment of Workmen (Special Provisions)
Act, No. 45 of 1971 as amended. When the inquiry commencedbefore the 2nd respondent as directed by the 1st respondent a pre-liminary objection was raised on behalf of the 3rd respondent to thejurisdiction of the 2nd respondent to inquire into the application asthe 3rd respondent urged that the petitioner was retired when the3rd respondent ascertained that the petitioner has passed his ageof retirement of 55 years. The Assistant Commissioner inquiringinto the application overruled such objection by his order dated 2015.09.95 marked ‘X1 ’, holding that even if the 3rd respondent com-pany had a policy of retiring the workmen at the age of 55, theCompany has not retired the petitioner who had worked after theage of 55 without any extension of service or other conditionsof employment being stipulated. Accordingly the Assistant
Gunaselvam v Commissioner of Labour and others
Commissioner held that the termination of the petitioner’s servicesattracted the provisions of section 2 of the Termination ofEmployment of Workmen (Special Provisions) Act, No. 45 of 1971as amended.
This order was challenged by the 3rd respondent Company inC.A. 766/95 wherein the document marked "3R3” dated 14.3.84which constitutes the contract of employment as alleged by the 3rdrespondent where the age of retirement is expressly stipulated wasconsidered. The Court having considered the issues involved andthe legality of the order of the Assistant Commissioner, by its judg-ment dated 02.10.96 held that there was an error of law on the faceof the record and directed the 2nd respondent to commence andcontinue the inquiry which he started and to complete it expedi-tiously. This judgement is marked “X2”. The 3rd respondent soughtspecial leave to appeal from the Supreme Court against “X2” whichwas refused by the order dated 24.7.97 marked “X3”. Thereafterthe inquiry before the Assistant Commissioner continued but noorder was made as Mr. K.A. Henry, the Assistant Commissionerceased to hold office. The petitioner through his attorney-at-lawmade representations to the Commissioner seeking an order onthe inquiry held. The 1st respondent by the document marked X7communicated the order and the reasons and directed the 3rdrespondent company to pay the petitioner three months salary inlieu of three months notice of termination. It is this order that thepetitioner seeks to canvass in these proceedings.
Given notice of the application, the 1st and 2nd respondentsthrough their Counsel informed Court on 23.03.2001 that theywould not be filing any statement of objections but would abide byany Order the Court may make. The 3rd respondent company filedstatement of objections refuting several statements of the petition-er and maintaining that the service contract of the petitioner consti-tutes a policy decision as evidenced by “3R3” and that theCommissioner’s order was in accordance with the terms of the lawand cannot be reviewed by this Court.
At the argument stage, Counsel for the petitioner urged that theAssistant Commissioner in rejecting the preliminary objection hasheld that the termination of the employment of the petitioner wasContrary to the provisions of section 2 of the Termination of
Sri Lanka Law Reports
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Employment of Workmen (Special Provisions) Act, No. 45 of 1971as amended. Therefore the Commissioner is obliged to make adetermination and to make an order in terms of sections 5 and 6thereof. On behalf of the 3rd respondent company Counsel soughtto re-agitate the question of petitioner’s appointment letter and thepolicy decision marked “3R3” constituting the contract of employ-ment of the petitioner with the 3rd respondent company which had 70the discretion of granting the extension of service beyond 55 yearsof age, or to -retire the workman at their discretion. He also statedthat the petitioner was allowed to continue in service till 571/2 yearsof age, would mean that the 3rd respondent Company has by itsconduct allowed the petitioner’s extension up to that date.
Having heard Counsel in support of their respective positions wefirst considered the eligibility of the 3rd respondent to re-agitate thematter that has already been adjudicated by this court in terms ofthe judgment marked .“X2”. Learned Counsel urged that it is tritelaw and well settled principle that an employer can embody or soincorporate the terms of employment of workmen in subsequentdecisions taken by the 3rd respondent Company from time to time.
. We are not inclined to examine this position in view of the factthat the same question having been raised by the 3rd respondenthimself and the Court having decided the same against him withthe special leave to appeal being refusecf, is a matter already decid-ed by this Court.
What remains to be examined then is what should have beenthe order of the Commissioner at the conclusion of the proceedingsbefore the Assistant Commissioner. When the Assistant 96Commissioner proceeded with the inquiry holding that the termina-'tion falls within the ambit of section 2 of the Termination ofEmployment of Workmen (Special Provisions) Act, No. 45 of 1971as amended, the Commissioner is obliged to make a determinationin terms of section 5 and to make an order in terms of section 6 ofthe said Act. “X7” does not contain such a determination or an orderbut an award of three months salary in lieu of three months noticewhich does not fall within the requirement of section 6 of theTermination of Employment of Workmen (Special Provisions) Act,
No. 45 of 1971 as amended.100
Jayawardena and another v Pegasus Hotels of Ceylon Ltd.,
(Saleem Marsoof. J. P/CA)
We are satisfied that the order of the Commissioner marked"X7” is not in conformity with the requirement of the provisions ofthe said Act. Accordingly we allow the application and issue a writof certiorari quashing the order of the Commissioner dated16.5.2000 and direct the 1st respondent to make an appropriateorder in terms of sections 5 and 6 of the provisions of theTermination of Employment of Workmen (Special Provisions) Act,
No. 45 of 1971 as amended, on the basis of the proceedingsalready concluded before the Assistant Commissioner.
Accordingly, a writ of mandamus in terms of paragraphs c, d and 110e of the prayer to the petition is granted.
The petitioner is entitled to a sum of Rs. 5000/- by way of costspayable by the 3rd resp'ondent-who resisted the application.
SRIPAVAN, J. – I agree.
GUNASLVAM v. COMMISSIONER OF LABOUR AND OTHERS