068-NLR-NLR-V-74-H.-W.-PATHINAYAKE-Appellant-and-KARMIKA-HA-SAMANYA-KAMKARU-SAMITHIYA-Responde.pdf
Pathinayake v. JCarmiku Ha Samanya Hatnltaru Samithiya
2.17
1971Present.: Siriniane, J.H. XV. PATHINAYAKE, Appellant, and KARMIKA HA SAMANYAKAMKARTJ SAAHTHIYA. RespondentS. C. 161De NorojGO—L. T. 0'/ 7136
Industrial Disputes Act (Cap. 131)—Sections 31 (C), 31 (/>) (2), 10 (?)—Unjustdismissal oj an employee—Order for reinstatement and payment of•“ back wages ”■—Award of “ continuing damages ” in event of failure to re instate—Illegalityof such award.
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SIRIMANS, J-—Pathinayakc t*. Karmika Ha SamanynKamkaru Samilhiya
Where a I-abour Tribunal orders re-instatement and payment of “ backwages ” in favour of an employee who has been unjustly dismissed, it has nopower to award “ continuing damages ” in the event of tbo failure to re instate.Such an award of “ continuing damagos " is not in consonance with the schomoof the Industrial Disputes Act and cannot be claimed to be just and equitableunder section 31 (C) of the Act.
Appeal from an order of a Labour Tribunal.
G. G. Mendis, with (Miss) S. M. Senarntne and D. C. Sa merctwickra mefor the respondent-appellant.
No appearance for the applicant-respondent.
Cur. adv. vult.
March 20, 1971. Sirimane, J.—
This is an application by the employer against an order of a LabourTribunal.
On the evidence led, the learned President has held that the dismissalof the employee was not justified, and it cannot be said that he erred inlaw in reaching that conclusion. That finding must, therefore, beaffirmed.
He has ordered reinstatement of the employee and awarded him a sumof Rs. 1,970 as “ back wages ” for a period of one year. I see no legalground for interfering with these orders.
The loarnod President has added at the end of his order—
“ In the evont of the failure to re-instato, continuing damages are to
be on the basis of Rs. 160 per month from 15th October, 1965/ '
The legalitj' of this part of the order has been strongly challenged.
Section 31 (C) of the Industrial Disputes Act, Chapter 131, gives verywide powers to a Labour Tribunal to make an order which is just andequitable ; but- such an order must bo in consonance with the scheme ofthe Act itself.
Once an order for rc-instatemcnt is made, it must he assumed tfiat tintemployer will carry out that order, subject, of course, to the limitedright of appeal granted by section 31 (D) {2).
If the employer fails to obey the order, provision is made- in the Actto punish him. for an offence under the Act (vide section A() (Q)).
To anticipate a non-cornpiiatico with the order for re-in.statenient. andaward ** continuing damages", would have the elicit of penalising theemployer twice over, and this in my view would not he just or equitable.
SAMERAWICKRAME, J.—Silva r. Southern Frcighlcre Lid.
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I have reminded myself of the fact that an appeal by an employor wouldresult, in some hardship to an employee during the pendency of theappeal, but that kind of disadvantage is inevitable whenever a right ofappeal is granted.
I do not think that an order such as the ono complained of, whichappears to bo dirocted at discouraging appeals by an employer, wascontemplated by the legislature when it enacted section 31 (C).
I delete that, part of the order relating to ” continuing damages ”referred to above.
Subject to this variation, the appeal is dismissed.
Order varied.