INTERNATIONAL COSMETIC APPLICATORS (PVT) LTD V. ARIALATHA AND OTHERS

013-SLLR-SLLR-1995-2-INTERNATIONAL-COSMETIC-APPLICATORS-PVT-LTD-V.-ARIALATHA-AND-OTHERS.pdf


CA
Anz Grindlay's Bank v. Ministry of Labour and Others
(H. W. Senanayake, J.)
61
INTERNATIONAL COSMETIC APPLICATORS (PVT) LTD.
v.
ARIALATHA AND OTHERS
COURT OF APPEAL.
SENANAYAKE, J.
C.A. APPLICATION 850/94APRIL 3, 1995
Termination of Employment of Workmen Act 45 of 1971 – Strike – Settlement -Reported back to Work – Go slow campaign – Undertaking given by Workers toincrease production – Go slow campaign again – Termination – Applicability ofAct 45 of 1971 amended by Act 4 of 1976 and 51 of 1988.
The entire Workforce of the Petitioner Company had gone on strike. As asettlement was reached, the workers reported back to work on the same day.Workmen had commenced a go slow campaign but after letters of warning wereissued the workers gave an undertaking to increase production to normal level,but as the Workers continued with the go slow campaign, their services wereterminated, on disciplinary grounds. On representation made the Commissionerof labour purported to act in terms of Act. No. 45 of 1971 as amended.
Held:
The termination was on disciplinary grounds as they were engaged in a go slowcampaign despite having given individual undertakings to bring the output tonormal production level. In such circumstances the employer need not get priorwritten approval of the Commissioner.
Per Senanayake, J.
The Commissioner is a creature of the Statute and he has no inherent powers asthat of a Court of Law.The Commissioner is exercising powers under the statute
62
Sri Lanka Law Reports
[1995] 2 Sri LR.
and it is in his own interest and the public interest that he should give reasons sothat the parties would know the basis of the determination – there must betransparency of the acts done by public officers.
Case referred to:
CA 260/93, C.A.M. 8.9.95.
AN APPLICATION for Writ of Certiorari.
Gomin Dayasiri for petitioner.
April 28 1995.
W. SENANAYAKE, J.
This is an application for a mandate in the nature of a Writ ofCertiorari to quash the order dated 31.8.94 marked P. 100 made bythe 12th respondent.
The petitioner is a limited liability Company and the 1st to 10thRespondents were employees of the petitioner Company whoseservices were terminated and who were parties at the inquiry held bythe 12th respondent in terms of the Termination of Employment ofWorkmen Act, No. 45 of 1971 as amended by 4 of 1976 and 51 of1988 (hereinafter referred to as T.E. Act). The 11th Respondent is theCommissioner who delivered the order at the conclusion of theinquiry in terms of the T.E. Act. The facts relevant to the Applicationwere as follows, on or about 22.11.93 the entire workforce around200 workers went on strike. Thereafter on 1.12.93 a comprehensivesettlement was reached and the workers reported back to work onthe same day. The petitioner found that the 1st to 10th respondentscommenced a go slow campaign. A notice was put up on 7.12.93requiring that production be brought to the normal level. Letters ofwarning dated 9.12.93 were issued to the said respondents and thesaid respondents with their explanation gave an undertaking toincrease production to normal level. But the respondents continuedwith their go slow campaign. Thereupon the services of therespondents were terminated on disciplinary grounds.
The Learned Counsel for the Petitioner submitted that thetermination of the services was on disciplinary grounds as they wereengaged in a go slow campaign despite having given individualundertaking to bring the output to normal production level. Section 2
CA
International Cosmetic Applicators (Pvt) Ltd. v. Arialatha and Others(H. W. Senanayake. J.)
63
sub-section 4 excludes the jurisdiction of the Commissioner when thematter arises or the termination arises on disciplinary grounds. Theletters of termination served on the 10 respondents gives the reasonfor termination. The Learned Counsel submitted that the 11th and12th respondents exceeded the jurisdiction.
I am of the view that there is force in the said submission. Areading of section 2 sub-section (4) of the T.E. Act would show thatthe Commissioner’s powers are ousted when the termination hasbeen made on disciplinary grounds under the terms of the T.E. Act. Insuch circumstances the Employer need not get the prior writtenapproval of the Commissioner. The commissioner is a creature of theStatute and he has no inherent powers as that of a Court of Law.
I am of the view that the Commissioner had exceeded hisjurisdiction and therefore the order P100 dated 31.8.94 has to bequashed by a mandate in the nature of a Writ of Certiorari.
It was submitted by the Learned Counsel that the 11thRespondent did not give reasons for its order. This Court had alreadytaken the view in C/A 260/93 that there is an obligation on theCommissioner to give reasons for its determination. TheCommissioner is exercising powers under the Statute and it is in hisown interest and the public interest that he should give reasons sothat the parties would know the basis of the determination. He isengaged in official duties under the T.E. Act. It is not a private matterand it is in the best interest that reasons should be given. There mustbe transparency of the acts done by public officers this could beachieved by giving reasons for their determination rather than makinga “Blank Order”.
The present trend has changed from the earlier restricted view thatadministrative tribunals need not give reasons for its order. Howeverin the instant case the 11th respondent had filed therecommendations of the 12th respondent.
In the circumstances I allow the application by quashing the orderof 31st August 1994 by issuing a Writ of Certiorari. I refrain frommaking an order for costs.
Application allowed.