022-SLLR-SLLR-1997-V3-INDEPENDENT-NEWSPAPAERS-LIMITED-v.-COMMERCILA-AND-INDUSTRIAL-WORKERS-UNION.pdf
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Independent Newspapers Limited v.
Commercial and Industrial Workers' Union
197
INDEPENDENT NEWSPAPERS LIMITED
v.COMMERCIAL AND INDUSTRIAL WORKERS’ UNION
SUPREME COURT,
DHEERARATNE, J.
WADUGODAPITIYA, J.
GUNAWARDENA, J.
S.C. APPEAL 106/96.
C. COLOMBO (A) 795/93 TO 887/93.
L.T. 8/3859/91 ETAL
MAY 30 AND JUNE 19. 1997.
Industrial Dispute – Termination of Employment of Workmen (Special Provisions)Act No. 45 of 1971 Section 2(1) – Section 31 B(5) of the Industrial Disputes Act -Section 6B(2) of Termination of Workmen (Special Provisions) Act.
Subsection 2(1) of the Termination of Employment of Workmen (SpecialProvisions) Act No. 45 of 1971 enable the employer to apply to the Commissionerfor approval to terminate the services of workmen as was done in this case. Thisapplication should obviously be made before the termination of the services of aworkman. In the case of a workman, the provision specifically enabling him toapply to tbe Commissioner against the termination was brought in by subsection6B(1) (see Amendment No. 51 of 1988). However, before the amendment cameinto force, the Commissioner did entertain applications made by workmen forrelief. In terms of that new subsection, such applications should be made to theCommissioner within six months of termination of services.
The effect of the words of subsection (5) of Section 31B is to affect the jurisdictionof the labour tribunal where a workman has first resorted to any other legalremedy. Subsection 6B(2) of the Termination of Employment (Special Provisions)Act affectively removes that obstacle in so far as a workman had first resorted to alegal remedy before the Commissioner.
Case referred to:
Hendrick Appuhamy v. John Appuhamy69 N.L.R. 29
APPEAL to the Supreme Court from the judgment of the High Court of Colombo.S. L. Gunasekera with M. E Wickramasinghe for appellant.
S. Sinnathambyvrit P. H. Thenuwara for respondent.
Cur. adv. vult.
198
Sri Lanka Law Reports
[1997] 3 Sri L.R.
July 09,1997.
DHEERARATNE, J.
FactsThis is an appeal from an order of the High Court allowing anappeal of the respondent and directing the Labour Tribunal to inquireinto the merits of the applications made on behalf of the workmen bythe respondent. The appellant employer Company (the appellant), onthe 21st December 1990, wrote to the Commissioner of Labour (theCommissioner) stating that it was unable to continue its businessoperations or employ or pay its workmen any further, due to recurringlosses, lack of working capital etc. and requesting the Commissionerto ‘be pleased to make such orders as may be necessary under theTermination of Employment of Workmen (Special Provisions) Act No.45 of 1971”. That letter also included a specimen of a letteraddressed to its workmen and the list of their names. The respondentTrade Union (the respondent) on behalf of the workmen wrote to theCommissioner the letter A10/R12 titled ‘In the inquiry underTermination of Employment of Workmen (Special Provisions) ActNo. 45 of 1971*. That letter referred to the fact that the appellant hadmade an application to the Commissioner and the respondentrequested him to ‘make an order on the employer to pay the wageswith effect from the date of the closure until disposal of the matter”.This disposal of the "matter" is obviously a reference to the inquiryinitiated by the appellant. In the course of the inquiry before theCommissioner, a representative of the respondent orally claimedthree years' salary for each workman. After the respondent wroteletter A10/R12 claiming some interim relief, and after the oralsubmission was made by the representative of the respondent at theinquiry before this Commissioner claiming three years salary for eachworkman, the respondent on behalf of the workmen, filed applicationsIn the Labour Tribunal in terms of subsection 31B(1) of the IndustrialDisputes Act.
Applicability of subsection 31B (5) of the Industrial Disputes ActIt was submitted on behalf of the appellant that the workmen werenot entitled to a remedy under subsection 31B (1) of the Industrial
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Disputes Act, inasmuch as they have first resorted to some otherlegal remedy. This argument commended itself to the learnedPresident of the labour tribunal, who dismissed the applications of theworkmen on that score. Subsection 31B (5) reads as follows:-
Where an application under subsection (1) is entertained by alabour tribunal and proceedings thereon are taken and concluded,the workman to whom the application relates shall not be entitledto any other legal remedy in respect of the matter to which thatapplication relates, and where he has first resorted to any otherlegal remedy, he shall not thereafter be entitled to the remedyunder subsection (1).
Did the workmen first resort to any other legal remedy? In thecontext of the sentence in which the word “resorted" appears, out ofthe several ordinary meanings of that word, it would attract themeanings of "to have recourse" or "to apply" (see Chambers 20thCentury Dictionary). The Chambers 21st Century Dictionary (1996)gives the second ordinary meaning of that word as "the action ofresorting to or having recoursed to someone or something for help".Subsection 2(1) of the Termination of Employment of Workmen(Special Provisions) Act No. 45 of 1971 enables the employer toapply to the Commissioner for approval to terminate the services ofworkmen as was done in this case. This application should obviouslybe made before termination of the services of a workman. In the caseof a workman, the provision specifically enabling him to apply to theCommissioner against the termination was brought in by subsection6B (1) (see Amendment Act No. 51 of 1988). However, before theamendment came into force, as a practice, the Commissioner didentertain applications made by workmen for relief. In terms of thatnew subsection, such applications should be made to theCommissioner within six months of termination of services. It wouldappear that the application to the Commissioner was made by theappellant and the respondent wrote the letter A10/R12 and thesubmission setting out a claim was made by the respondent'srepresentatives purely in response to the appellant's application. Inthese circumstances, I am of the view that the workmen had not firstresorted to a legal remedy within the meaning of subsection 31B (5).
200
Sri Lanka Law Reports
11997] 3 Sri LR.
Applicability of Subsection 6B (2) of the Termination ofEmployment of Workmen (Special Provisions) ActIt was contended on behalf of the respondent that even if theworkmen had resorted to a legal remedy before the Commissioner inpursuance of their rights under the Termination of Employment ofWorkmen (Special Provisions) Act, yet, in terms of subsection 6B (2)of that Act, they could apply to the labour tribunal for relief in respectof their termination. In other words, that subsection 6B (2) has theeffect of impliedly amending the second limb of subsection 31B (5) ofthe Industrial Disputes Act. On the other hand, Mr. Gunasekera forthe appellant submitted that subsection 6B (2) does not serve toamend subsection 31B (5) of the Industrial Disputes Act. Subsection6B (2) reads:-
Nothing in this Act shall be read and construed as effecting (sic)section 2 or section 5 of the Act or the rights of a workman whoseemployment has been terminated to apply for any other legalremedy in respect of that termination or as effecting (sic) thejurisdiction of any court, tribunal or institution to grant relief inrespect of such termination.
The word “effecting" appears to be an obvious error and it shouldread as “affecting". It was Mr. Gunasekera’s contention that for animplied amendment to take place, when the legislature has notexpressly amended subsection 31B (5) of the Industrial Disputes Act,there must be a clear and patent incompatibility between subsection31B (5) of the Industrial Disputes Act (the earlier Act) and subsection6B (2) of the Termination of Employment of Workmen (SpecialProvisions) Act (the later Act); he submitted that there is no suchincompatibility. Learned counsel contended that the two provisionscan co-exist; or if there is an interpretation that enables them to co-exist, there cannot be an amendment to subsection 31B (5) of theearlier Act intended by the legislature in the absence of an expressamendment; that (citing Hendrick Appuhamy v. John AppuhamyY,},where a statute creates a right and in plain language gives a specificremedy or appoints a specific tribunal for its enforcement, a partyseeking to enforce the right must resort to that tribunal and not toothers; and that the purpose and object of the legislature in enactingsubsection 6B (2) of the later Act is to enable a workman to seekrelief from a District Court or a Labour Tribunal notwithstanding the
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special remedy provided by the Act. Mr, Gunasekera’s submissionwas that the plain meaning of subsection 6B (2) of the later Act wasthat the availability of the remedies provided by the Act does notdeprive a workman of his rights to other remedies.
I find it difficult to agree with the interpretation advanced bylearned counsel for the appellant. Words of subsection 31B (5) of theearlier Act, material to this case are ‘where he (the workman) has firstresorted to any other legal remedy, he shall not thereafter be entitledto the remedy under subsection (1)”. The words material to this casein subsection 6B (2) of the later Act are ‘nothing in this Act shall beread and construed as affecting the rights of a workman whoseemployment has been terminated to apply for any other legal remedyin respect of that termination or as affecting the jurisdiction of anycourt, tribunal or institution to grant relief in respect of suchtermination". (Emphasis added). Had the subsection ended after theword termination” where it appears first, one may have agreed withthe construction sought to be placed by Mr. Gunasekera. But, if thewords I have emphasised are to be given any meaning, it makes itimpossible for them to co-exist with the words of subsection 31B (5)of the earlier Act; the effect of the words of subsection 31B (5) is toaffect the jurisdiction of the labour tribunal, where a workman hasfirst resorted to any other legal remedy. Subsection 6B (2) of the laterAct effectively removes that obstacle to the jurisdiction of the labourtribunal, in so far as a workman had first resorted to a legal remedybefore the Commissioner.
For the reasons stated above, the appeal is dismissed with costsof this Court fixed at Rs. 10,000/- payable to the respondent. TheRegistrar of this Court is directed to send the records back to theLabour Tribunal as soon as possible. We direct the Labour Tribunal togive precedence to these cases and to hear and determine them asexpeditiously as possible. It is unfortunate that the workmen have notbeen able to obtain any relief so far, either from the Commissioner orfrom the Tribunal on account of the termination of their services.
WADUGODAPITIYA, J. -1 agree.
GUNAWARDENA, J. -1 agree.Appeal Dismissed.