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LIQUIDATOR OF THE RIVER VALLEYSDEVELOPMENT BOARD
v.
HENDRICK APPUHAMY AND ANOTHER
SUPREME COURT.
FERNANDO. J„
PERERA, J„
WIJETUNGA, J.,
ANANDACOOMARASWAMY, J. ANDGUNAWARDENA. J.
S.C. APPEAL NO. 97/95.
H.C. NO. 310/92.
L.T. NO. 1/ADDL/7213/90.
4TH MARCH. 1997.
Industrial Disputes Act – Relief under section 31(B)(1) – Public Corporationdissolved under section 19 of the Finance Act No. 38 of 1971 – Right of Employeeof the dissolved corporation to seek relief against the Liquidator appointed undersection 20 of the Finance Act.
Held: (Fernando, J. and Gunawardena, J. dissenting)
"The powers of a Liquidator under the Finance Act are restricted to thoseexpressly mentioned in section 20. though that section must be read with sections19 and 21. The workmen cannot make the liquidator a party respondent to anapplication for relief under section 31(B)(1) of the Industrial Disputes Act."
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Per Wijetunga, J.
“To clothe the liquidator with a status in excess of the powers conferred on him bysection 20 of the Finance Act would do violence to those provisions. If there is alacuna in the law, it is the legislature that must take remedial action".
Cases referred to:
Ratwatte v. Bandara (1966) 70 NLR 231.
De Silva v. Samajawadi Lanka Kamkaru Samithiya C.A. 472/82 C.A. Minutes2nd April 1987.
Mahipala v. State Fertilizer Manufacturing Corporation C.A. 470/87 C.A.Minutes 14th September, 1994.
Someswaran etal v. de Silva C.A. 1042/91 C.A. Minutes 10th February, 1994.
Ramasamy v. 8.C.C. Ltd.. S.C. 60/87 S.C. Minutes 21st March 1991. C.A.Minutes 28th September, 1987.
Shaw Wallace & Hedges v. Palmerston Tea Co., (1982) 2 Sri L.R. 427; (1981)1 Sriskantha 11.
Ceylon Estates Staffs Union v. Land Reform Commission (1987) 2 Sri. L.R.203.
De Silva v. Samajawadi Lanka Kamkaru Samithiya S.C. 48/87 S.C. Minutes15th July 1993.
Loku Banda v. Competent Authority G.O.B.U. of N.T.C. C.A. 832/82 C.A,Minutes 8th October, 1987.
De Mel v. Withana S.C. 282/76 S.C. Minutes 21st November 1977.
N.T.C. v. Sri Lanka Nidahas (etc.) Sevaka Sangamaya C.A. 361/78 C.A.Minutes 20th June 1980.
Wijewardene v. Chandradasa (1985) 2 Sri L.R. 17.
Jayawickrama v. Jinadasa( 1994) 3 Sri. L.R, 185.
Latiff v. Fernando (1978 – 79) (2) NLR 89.
Nandasena v. Carson Cumberbatch & Co., Ltd. (1973) 77 NLR 73.
Times of Ceylon v. Nidahas Karmika Samithiya (1960) 63 NLR 126.
Arnolda v. Gopalan (1961) 64 NLR 153.
Attorney-General v. Sabaratnam (1955) NLR 481, 485.
Wickramasinghe v. Sri Lanka State Trading (Consolidated Exports)Corporation (1994) 3 Sri L.R. 41.
Cumberbatch & Company v. Nandasena (1973) 77 NLR 73 at 81.
De Silva v. Liquidator of the National Textile Corporation SC 40/87. SCM15,7.93
APPEAL from the judgment of the High Court.
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P. Nagendran, PC. with C. W. Pannila, and Miss S. M. Senaratne for appellant.
Desmond Fernando, P.C., with Suren Peiris, Janaprith Fernando, GaminiDissanayake, and Samantha Jayamanne for respondent.
K.C. Kamalasabeyson. PC. A.S G. with U. Egalahewa, S.C. as amicus curiae.
Cur. adv. vult.
May 29,1997.
FERNANDO, J. (Dissenting)
The question of law for determination by this bench of five Judgesis whether an employee of the River Valleys Development Board("RVDB"). a public corporation, was entitled to make and maintain anapplication under section 31 B( 1) of the Industrial Disputes Act(“IDA"), for relief or redress in respect of the termination of hisservices by the RVDB and benefits due thereupon, against thepersons appointed as liquidators of the RVDB upon its dissolution.That section provides:
31B(1) A workman or a trade union on behalf of a workman who isa member of that union, may make an application in writing to alabour tribunal for relief or redress in respect of any of the followingmatters:-
the termination of his services by his employer;
the question whether any gratuity or other benefits are due tohim from his employer on termination of his services and theamount of such gratuity and the nature and extent of any suchbenefits;
such other matters relating to the terms of employment, or theconditions of labour, of a workman as may be prescribed.
The RVDB was dissolved, and the 1st respondent-respondent-appellant firm (which I will refer to as “the Appellant”) were appointedliquidators under the Finance Act, No. 38 of 1971. The relevantprovisions of that Act are:
19. Where the appropriate Minister considers that the activities ofa public corporation should be terminated, the Minister may, underthe authority of a resolution passed by Parliament –
(a) dissolve the corporation; and
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(b) appoint one or more persons to be the liquidator or liquidatorsof the corporation.
20. The liquidator of a public corporation appointed under section19 shall, subject to the directions of the appropriate Minister, havepower to –
decide any questions of priority which arise between thecreditors;
compromise any claim by or against the corporation with thesanction of the Minister previously obtained;
take possession of the books, documents and assets of thecorporation;
sell the property of the corporation with the previous sanctionof the Minister; and
arrange for the distribution of the assets of the corporation in amanner set out in a scheme of distribution approved by theMinister.
21(1) In the liquidation of a public corporation, the funds of thecorporation shall be applied first to the cost of liquidation and thento the discharge of the liabilities of the corporation.
When the liquidation of a public corporation has been closed,a notice of liquidation shall be published in the Gazette and noaction in respect of any claim against the corporation shall bemaintainable, unless it is commenced within two years from thedate of the publication of such notice in the Gazette.
Any surplus remaining after the application of funds to thepurposes specified in subsection (1) and the payment of any claimfor which an action has been instituted under subsection (2) shallbe vested in the Secretary to the Treasury.
The facts are not in dispute, except as to the exact date ofdissolution. The RVDB had employed the applicant-appellant-respondent (“the applicant") from 1968. By a notice dated 26.2.90the RVDB terminated his services with effect from 31.3.90. On30.9.90 the applicant filed an application in the Labour Tribunalnaming the appellant and the RVDB as respondents. The appellantfiled answer on 16.11.90 averring that, pursuant to a resolution in
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Parliament, by notice published in the Government Gazette of 4.5.90,the Minister acting in terms of section 19 of the Finance Act, No. 38 of1971, had dissolved the RVDB, and appointed the appellant to be theliquidator of the RVDB.
The Labour Tribunal took up for consideration the preliminaryobjection that the application could not be maintained: as against theRVDB, because it was not in existence; and as against the appellant,because – so it was argued – the Appellant was never the employerof the applicant, had not been concerned in the termination of hisservices, did not carry on the business of the RVDB, and was not itssuccessor. The Tribunal upheld the objection and dismissed theapplication, but on appeal the High Court held that the applicationwas maintainable. There were other appeals in which the samequestion arose, and the High Court order notes that the partiesagreed that the order would be binding in 97 connected cases aswell; accordingly, the order of this Court will apply to those cases.The appellant now appeals to this Court, having obtained leave toappeal from the High Court.
At the commencement of the hearing, Mr. P. Nagendran, PC, forthe appellant produced, without objection, the Hansard of 23.3.90,which showed that a resolution had been passed by Parliamentauthorising the Minister to dissolve the RVDB, and the Gazette of
which contained the Minister’s notification dated 15.4.90 tothe general public that the appellant had been appointed liquidatorwith effect from 1.4.90. However, the document embodying theMinister's opinion that the activities of the RVDB should beterminated, as well as his decision to dissolve it, was not produced atany stage in the Labour Tribunal, in the High Court, or in this Court.Mr. Nagendran also moved to produce a letter dated 28.3.90 bywhich, he said, the Secretary to the Ministry had informed theappellant that the RVDB was being dissolved with effect from
There was neither a motion (with prior notice to theapplicant) to produce that letter, nor a supporting affidavit toestablish its authenticity. No explanation was offered for the failure toproduce the Minister’s order of dissolution. That letter could not beregarded as direct evidence of a valid dissolution or of its effectivedate. Quite obviously, that letter was one which could easily havebeen produced, had minimum diligence been exercised, in the
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Labour Tribunal. The appellant thus failed to satisfy all three pre-conditions for permitting new evidence in appeal (see Ratwatte v.Bandara,m and so we did not allow that letter to be produced. It isindeed regrettable that the preliminary objection had been taken andpursued without furnishing necessary supporting material even sixyears later at the stage of the second appeal.
However, because the parties had throughout proceeded as ifthere had been a valid dissolution, this appeal will be determined onthat basis. As for the date of dissolution, we will assume that it was31.03.90 because Mr. Desmond Fernando, PC, who appeared for theapplicant, agreed that this appeal be decided upon that assumption.
The question for our determination involves two matters. Upon thedissolution of the RVDB and the appointment of the liquidator, did theliabilities of the RVDB (in respect of the termination of the applicantand the benefits due to him on termination) vest in or devolve uponthe appellant? If so, was the applicant entitled to make and maintainan application under section 31 B(1) against the appellant in respectof those liabilities?
VESTING OF LIABILITIES IN LIQUIDATORMr. Nagendran contended that a liquidator appointed under theFinance Act is in a different position to one appointed under theCompanies Act; that the only powers of the former are those set outin section 20 of the Finance Act; that Act provides neither for thevesting of the liabilities of the dissolved corporation in the liquidator,nor for the liquidator to bring or defend actions; and that the claimswhich the liquidator*rrtay compromise, under section 20(b), do notinclude claims made in a Labour Tribunal.
In regard to the Companies Act, Mr. Nagendran submitted that itprovides for the corporate existence of the company underliquidation to continue until the liquidation is completed, and to ceaseonly upon a court order being made thereafter; that it specifiesnumerous powers which the liquidator may exercise during theliquidation; and that many of these are normally functions of theBoard of Directors, and even include the carrying on of the business
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of the company. However, under the Finance Act corporate existenceceases before the liquidation commences, and the liquidator cannotcarry on the business of the corporation. I agree that clearly there aresignificant differences between the two liquidation procedures, and Ithink that this means that no relevant inference can be drawn from acomparison, Indeed, I must stress that if the scheme of theCompanies Act is that corporate existence continues duringliquidation, it would have been quite inappropriate, and perhapsimpossible, for the company's rights and liabilities to be vested in theliquidator. But from that certainly does not follow that the rights andliabilities of a dissolved corporation do not vest in a liquidatorappointed under the Finance Act: on the contrary, since that Actprovides a very different scheme whereby corporate existenceceases, it seems desirable, if not essential, that the corporation’srights and liabilities must thereupon vest in someone – and, arguably,who better than the liquidator? However, I do not wish to rest mydecision upon such an inference. Nor do I think that the failure of theLegislature, to reproduce in the Finance Act all the powers which theCompanies Act confers upon liquidators, leads to the conclusion thata liquidator's powers under the former are restricted to thoseexpressly mentioned in section 20, because that is a matter whichmust be determined upon an interpretation of that section taken in itscontext.
Turning then to section 20, I find that Mr. Nagendran’s contentionhas three limbs: first, it is only from that section that a liquidator'spowers can be ascertained: second, those powers are restricted towhat is expressly specified, and no other powers may be implied;and third, even what is expressly specified must be narrowlyconstrued – thus "any claim”, according to him, excluded a claimmade in a Labour Tribunal, and included only a pending claim.
Section 20 cannot be interpreted in isolation; it must be read withsections 19 and 21, in the context of the scheme of dissolutioncontemplated by the Act. What is that scheme? There is acorporation in existence, with a business, assets, rights and liabilities;it is dissolved; its affairs must necessarily be wound up (and that is aprocess which involves the recovery and realisation of its assets, andthe discharge of its liabilities, with the object of paying any surplus to
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its ultimate owner); someone – and that is a liquidator – is needed todo all that, and he must have the necessary rights, powers, duties,and functions; and upon completion of the liquidation, he must paythe surplus to the Secretary to the Treasury. There are two additionalfeatures. The first is that section 20 provides for a measure of controland guidance: not only is the Minister empowered to give directionsas to the exercise of the powers set out in section 20, but certaintransactions require his specific sanction. The second is that thetermination of the liquidation is in two stages: even after a "notice ofliquidation" is published (section 21(2)), actions may be filed, inrespect of claims against the corporation (e.g. claims which theliquidator had repudiated, or claims which had not previously beenmade because they had not yet matured).
In that scheme, a restrictiye interpretation is not at all justified,particularly one which would impede a fair, orderly and expeditiouswinding up. Mr, Nagendran asks us to hold that, under section 20,the liquidator has no power to bring or defend actions, or to defendor compromise a claim made in a Labour Tribunal, whether before orafter dissolution. But section 21(2) permits a claimant to file an actioneven after the "notice of liquidation”, and Mr. Nagendran concededthat it was open to an employee to institute an action at that stage,although, he said, there would be the difficulty that by that time theassets of the corporation would already have been distributed. Icannot agree with Mr. Nagendran that "action” must be narrowlyinterpreted to mean a civil action instituted in terms of the CivilProcedure Code. Even the definition of “action” in that Code is “aproceeding for the prevention or redress of a wrong”, and wouldinclude an application, for relief or redress, to a Labour Tribunal.Further, the words “against the corporation” qualify “claim", and not“action", and so all such actions must be filed against the liquidator,and not against the dissolved corporation, since it is no longer inexistence. To interpret section 20 to mean that a liquidator cannotdefend an action would be to make nonsense of section 21(2) theconsequence would be that a liquidator faced with an action in termsof section 21(2) must let judgment go against him by default. In theabsence of compelling language, I am not prepared to attribute tothe Legislature an intention that a liquidator can compromise anexaggerated claim, but cannot repudiate a false claim and fight it in
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court. If he can defend an action under section 21(2), he can do sounder sections 19 and 20. Likewise it is unrealistic to contend thatsection 20 does not allow a liquidator to bring an action. If, forinstance, a liquidator in the exercise of his power to take possessionof assets, demanded the payment of a sum of Rs. 100 million whichthe corporation had placed on deposit with a bank, and the bankrefused, could it possibly be suggested that it was the intention of theLegislature that the liquidator could not bring an action for recovery?If that was the case, how could he discharge his obligation to windup the affairs of the corporation, and pay the owner the surplus?
I hold that the express power and duty to collect assets and todischarge liabilities necessarily implies the power and the duty tobring and defend actions in relation to his functions. And even ifsection 20 had not been enacted%the mere fact of being theliquidator was probably sufficient to imply that power and duty, unlessexpressly excluded. But that does not mean that section 20 issuperfluous, for its purpose is obvious: to impose restrictions inrelation to some of liquidator’s powers and duties. Thus while he hashimself the discretion to repudiate a claim or to defend an action, yetto compromise a claim he needs the sanction of the Minister; andwhile he may transfer an asset in the custody of the corporation to itsrightful owner, or recover an asset from the custody of another, if hewishes to sell property, the price must be approved by the Minister.
In support of his contention that the liability, if any, of the RVDB didnot pass to the appellant, Mr. Nagendran cited three decisions of theCourt of Appeal: De Silva v. Samajavaadi Lanka KamkaruSamithiya,(ZI which was followed in Mahipala v. State FertilizerManufacturing Corporation™ and Someswaran et al. v. de Silva.™ Itwas also his submission that when an application is made to aLabour Tribunal any alleged right or liability is inchoate, and that it isonly the determination of the Tribunal which creates rights andliabilities. While that may be true of industrial arbitration in respect ofclaims for better terms and conditions of employment, the position isdifferent in regard to rights and liabilities consequent upontermination: the cause of action is complete, and the fact that theTribunal has a discretion in regard to relief, or that it is empowered togrant equitable relief, only means that rights and liabilities are
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contingent. The death of a workman will preclude the grant of reliefswhich are personal in nature (such as reinstatement), but notmonetary compensation. "Liability" includes inchoate, future,unascertained or imperfect obligations, and these are capable ofdevolving upon a successor (see Ramasamy v. BCC Ltd.,™ citingJowitt, Dictionary of English Law, Vol. 2, page 1085).
There are several other decisions of this Court which show that,even before an adjudication under the IDA, an employer is subject toa "liability”, in respect of the wrongful dismissal of a workman, whichcan pass to his successor: Shaw Wallace & Hedges v. PalmerstonTea Co.™ Ceylon Estates Staffs Union v. Land Reform Commission™and De Silva v. Samajavaadi Lanka Kamkaru Samithiya,(SI
Those decisions establish, beyond doubt, that the employer'sliability ceases. And that is so even if the employer does not cease toexist (as in Ramasamy, Shaw Wallace & Hedges, and C.E.S.U. v.L.R.C.)
The question whether pending proceedings can be continuedagainst the successor depends on who that successor is: if he is aperson not subject to the jurisdiction of the Tribunal, the proceedingscome to an end. Thus upon a vesting order under the BusinessUndertakings (Acquisition) Act, No. 35 of 1971, the liability vests inthe Government (see Ramasamy) which is not amenable to thejurisdiction of the Labour Tribunal, by virtue of section 49 of the IDA,and hence the proceedings cannot continue against the CompetentAuthority appointed under that Act: de Silva v. Samajavaadi LankaKamkaru Samithiya (which cites Loku Banda v. Competent Authority,G.O.B.U. of N.T.C.m and de Mel v. Withana,(101
However proceedings may be continued where the liabilitydevolves upon other bodies (such as the Land Reform Commission,as in Shaw Wallace & Hedges, or the Janatha Estates DevelopmentBoard, as in C.E.S.U. v. L.R.C.).
There are two decisions dealing with the National TextileCorporation which have caused some confusion. The businessundertaking of that corporation had been vested in the Government
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by an order made in 1979 under the Business Undertakings(Acquisition) Act, and thereafter, in 1980, the corporation wasdissolved and a liquidator appointed under the Finance Act. N. T.C, v.Sri Lanka Nidahas (etc) Sevaka Sangamaya,‘"') was an appeal filedbefore such vesting and dissolution. Although the Court of Appealnoted that upon the vesting of its business undertaking the rights andliabilities of the corporation had vested in the Competent Authority,the Court did not order that he be substituted, although notice wasissued on him; nor was the liquidator substituted. The appeal was,subject to a variation as to the amount of compensation, dismissed.
In de Silva v. Samajavaadi Lanka Kamkaru Samithiya,t2> {Supra) theapplication to the Labour Tribunal had been filed before the vestingorder. The Court of Appeal held that the powers of the liquidator areconfined to the five specified in section 20, and did not extend tobringing or defending actions; that the liquidator does not carry onthe business of the corporation, and is not its successor; and that hecould not be added as a party. However, the Court held that “theinquiry that has commenced can be continued and concluded by theTribunal and a just and equitable order (can) be made", and that theliquidator would be liable in law to pay any amount awarded as backwages, compensation, or gratuity (citing Wijewardene v.Chandradasa."2) This view is, with respect, inconsistent because itassumes that the liability of the corporation does not pass to theliquidator upon dissolution, at the stage when the proceedings arepending, but passes subsequently, when the proceedings areconcluded, it also appears to sanction an action being continuedagainst a non-existent party-respondent. Further, it is not easy toaccept an interpretation which results in a liquidator being unable toresist a wholly unmeritorious claim although he knows that he wouldbe bound to satisfy that claim in full later, upon an award made exparte.
The Court of Appeal also refused to grant a writ of prohibition tostay further proceedings. Against that order the liquidatorsuccessfully appealed to this Court (SC 48/87 SCM 15.7.93).(81 Theresulting position was that the liquidator was not added or substitutedas a party, and the Labour Tribunal proceedings came to an end. Thejudgment of Kulatunga, J. shows ample justification for that result.
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The correct position was that in 1979 (i.e. before the dissolution of thecorporation) its business undertaking, including its liabilities, hadbeen vested in the Government under the Business Undertakings(Acquisition) Act; no proceedings could be maintained against theCompetent Authority appointed under that Act because of section 49of the IDA; when the corporation was later dissolved, in 1980, itsliabilities had already vested in the Government, and could not, anddid not, devolve upon the liquidator. Naturally, the pendingproceedings in respect of those liabilities could not be continuedagainst him. In so far as that decision has any bearing upon adissolution without an intervening vesting in the Government or athird party, it supports the view that the liabilities of the corporation dopass to the liquidator.
Finally, I must refer to Jayawickrama v. Jinadasa1'3', which dealtwith an application pending in the Labour Tribunal when the RVDBwas dissolved. The order of the Tribunal refusing to add the liquidatorwas reversed by the High Court, which correctly held that althoughthe liquidator was not an “employer", he had to be made a party. Anappeal to this Court by the liquidator was dismissed – not on themerits, but for non-compliance with the Supreme Court Rules.
All those decisions dealt with dissolution while proceedings werepending, in the Labour Tribunal or in appeal, with the exception ofWijewardene v. Chandradasa, [Supra) in which the dissolution of theJanawasama Commission took place after all proceedings wereconcluded. There the Court of Appeal held that the liquidatorsucceeded to the assets and liabilities of the dissolved Commission,and was bound by the final order.
Reference was made at the hearing to analogies from the lawrelating to executors and administrators: that property of a deceasedvests in his heirs but leaving an executor or administrator a limitedright of dealing with it for the purpose of administration. Thedecisions of this Court to which I have referred indicate that assets,rights and liabilities pass to the liquidator. For the purpose of thisappeal, it is unnecessary to decide whether that is a vesting which isabsolute, or which is subject to some condition or trust, or whichamounts only to the power and the duty to deal with assets, rights
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and liabilities. It is sufficient to say that the appellant, as liquidator,has the right, the power and the duty to discharge any liabilities ofthe dissolved corporation which arose upon the termination of theservices of the applicant effected by the notice dated 26.2.90. Ofcourse, his liability is not personal, and extends only to the assets ofthe corporation (see Latiffv. Fernandoiu)).
The case now before us differs from the above decisions to theextent that the dissolution occurred before proceedingscommenced. But that cannot affect the legal position that the rightsand liabilities of the RVDB did pass to the appellant. However,Mr. Nagendran submitted that even if rights and liabilities in apending proceeding against an employer might devolve on aliquidator, a Labour Tribunal application cannot be filed against aliquidator, naming him as the respondent, because the provisions ofthe IDA did not permit it.
MAINTAINABILITY OF SECTION 31B(1) APPUCATIONIt was Mr, Nagendran’s contention that an application undersection 31B(1) could only be made against an “employer"; that theapplicant’s "employer" was the RVDB; that the appellant was neverhis “employer", had not been concerned in the termination of hisservices, did not carry on the business of the RVDB, and was not itssuccessor; and that in any event no enforceable order could bemade against the appellant because under section 40 of the IDA it isonly an “employer” who could be punished for non-compliance.
Nandasena v. Carson Cumberbatch & Co. Ltd.iK Times of Ceylonv. Nidahas Karmika Samithiyam and other decisions were cited, insupport of the proposition that “employer” did not include anemployer's successor-in-title; and it was urged, relying on Arnolda v.Gopalanm, that an application could not be made against thesuccessor of an employer.
The definition of “employer” admittedly does not include anemployer’s successor-in-title. But however narrow that definition maybe, one must first examine section 31 B(1) to ascertain whether itpermits an application to be made against an “employer’s”
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"T
successor; and if it does, it is irrelevant that the definition does notinclude such successor. Mr. Nagendran’s argument is based mainlyon the references in that subsection to “the termination of his servicesby his employer11 and to “benefits due from his employer'1; and alsoon the fact that Regulations 15 and 31(3) made under the IDA, aswell as Form D, when referring to the respondent to an application,describe him as the “employer". But regulations and forms cannotcircumscribe the provisions of the principal Act, by adding limitationswhich the Legislature did not enact.
It is important not to blur the distinction between two distinctmatters: the cause of action and the identity of the respondent.Section 31B(1) confers a jurisdiction on Labour Tribunals, which isnot unlimited. However being a provision conferring jurisdiction, thereis no reason to interpret it restrictively, unless the words require anarrow interpretation. In determining what is the jurisdiction of theTribunal, three questions arise. First, Who can invoke thatjurisdiction, or who can make an application? The answer is clear,“it can be invoked only by or on behalf of a workman". Second, Towhat subject-matter does that jurisdiction extend? Once again theanswer is not in dispute, “only in respect of the termination ofservices of a workman and/or terminal benefits thereupon”. The third,and distinct, question is, Who is subject to that jurisdiction, oragainst whom can such an application be made? Section 31B(1) issilent as to the proper respondent. Mr. Nagendran would have usanswer that question by adding the words – words of limitation:"against his employer”. But the language of the subsection suggeststhat the Legislature intended a broader construction, for it gave aworkman a right “to apply for relief or redress". Since it does notrestrict that right to relief or redress against his employer, it means,at least prima facie, that relief or redress can be claimed against anyperson. Of course, if that leads to any absurd, unreasonable, orunjust result, it should not be adopted. It may be argued, forinstance, that this would allow a total stranger to be sued. But that ispossible in any kind of litigation. Here the Tribunal will ensure that noinjustice will result, by holding either that the workman who hasinvoked the jurisdiction has no cause of action against a stranger, orthat its jurisdiction extends only to a person who is liable to give“relief or redress" to the workman. The decisions of this Court, which I
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have discussed, establish that although upon dissolution anemployer-corporation may cease to be liable, its liability passes tothe liquidator. Whatever might be the basis on which a Tribunal willdismiss an application against a total stranger, a liquidator is by nomeans a stranger, for he is legally bound to discharge the liability ofthe dissolved corporation. A workman is therefore entitled to claimrelief or redress from him. I hold that section 31 B{1) entitles aworkman to make and maintain an application for relief or redressagainst the liquidator of the dissolved corporation which was hisemployer.
Cases such as Nandasena v. Carson Cumberbatch & Co. Ltd.{Supra) and Shaw Wallace & Hedges v. Palmerston Tea Co., (Supra)dealt with situations in which an agent of the employer was sought tobe made liable, and any observations to the effect that the employeralone was liable were in the context of that question. Indeed, thelatter case is almost conclusive, for having held that the agent wasnot liable, this Court went on to hold that the employer too hadceased to be liable because its liability had vested in the LandReform Commission (cf. also C.E.S.U. v. L.R.C.). Had the employerbeen a corporation in respect of which a liquidator had beenappointed, the conclusion would have been that the liability hadpassed to him.
In Amolda v. Gopalan (Supra) it was held that a workman was notentitled to make an application against the widow of his deceasedemployer, because the IDA “does not impose any liability on theexecutor, personal representative, or the executor de son tort of adeceased person for his debts and liabilities". With respect, thequestion for decision was not whether the Act imposes such aliability; but whether in law the liability of the deceased had passed tothe widow, and, if so, whether the IDA permitted the workman toclaim relief or redress against the widow, Had the widow been suedonly qua widow, I would have agreed that she was not liable -because that was not sufficient to show that the liability of thedeceased had passed to her. However, the judgment refers to twosignificant matters: the impugned settlement had been reached onbehalf of the estate of the deceased, and the widow had registeredthe deceased’s business in her own name and had thereafter herself
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employed the workman for a few days. Although it was said(at p. 157) that the Tribunal had adjudicated on the workman's claim,the judgment shows that it had been settled (p. 154) – so that thefacts relevant to the question whether the widow was the employer,either in her own right or by succession, were not placed before theTribunal for adjudication. There was thus no patent want ofjurisdiction. Hence the consent order of the Tribunal, neverchallenged in appeal, ought not to have been reviewed in a revisionapplication arising from proceedings for enforcement. I have alreadyset out my reasons for holding that the IDA permits an application tobe filed against the person to whom the liability of the employer haspassed. For these reasons, with respect, I am of the view thatArnolda v. Gopaian was wrongly decided.
Mr. Nagendran referred to section 40(1) (q) of the IDA which onlypenalises a person who, "being an employer", fails to comply with theorder of a Labour Tribunal. He submitted that an award made againstthe appellant, the liquidator, would not be enforceable because hewas not an "employer”, Therefore, he argued, an application couldnot have been made against him. The fact that an order made by acourt or tribunal is not enforceable does not mean that it has nojurisdiction to make it. Thus in Attorney-General v. Sabaratnamm, adeclaratory decree against the Crown was affirmed in appeal,although the Courts were powerless to enforce it, because:
"… Courts of justice have always assumed, so far withoutdisillusionment, that their declaratory decrees against the Crownwould be respected."
And one must not assume that a Labour Tribunal award, to use thewords of Gratiaen, J, in that case, “would be insolently ignored” by aliquidator performing statutory functions under the directions of theMinister.
It seems to me, however, that an award is enforceable by action.Section 44B of the IDA provides for the Commissioner of Labour (or atrade union) to institute a suit “for the recovery of sums due under[the] Act from any employer to any workman in a court of competentjurisdiction.”. Of course. I appreciate that this refers only to an
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“employer", and does not deal with the successor to an employer, butit confirms the principle that an award is enforceable by civil suit. It isnot this provision which creates the cause of action; on the contrary, itpresupposes that the workman does have a cause of actionenforceable in a civil court; and enacts that, without prejudice to theworkman’s own right to institute such an action, the Commissioner toomay do so. Section 44B thus recognizes the principle that uponfailure to comply with a Labour Tribunal award, the workman has acivil cause of action on an award. And if the Tribunal has – as I hold ithas – jurisdiction to entertain an application against the employer'ssuccessor, its award will be similarly enforceable by civil suit.
It is thus unnecessary to deal with the alleged lack of criminalsanctions. I must observe, however, that section 48 contains adefinition of “employer" which prevails “unless the context otherwiserequires"; and it may well be that, in a context in which the realemployer has ceased to exist, "employer" in section 40(1) (q) mustbe interpreted as including the person who has succeeded to theemployer’s rights and liabilities.
Let me reiterate in conclusion that Mr. Nagendran’s contention thatthe present application is not maintainable at this stage, if correct,leads to the result that a future action (in respect of the very sameclaim) can be maintained if instituted within two years from the dateof publication of the notice under section 21(2).
ORDERFor these reasons I hold that the applicant was entitled to instituteand maintain an application under section 31 B< 1) against theappellant, who continues to be liable to discharge the liabilities of theRVDB. The appeal is dismissed, the order of the High Court isaffirmed, and the Labour Tribunal is directed to inquire into theapplication on its merits. The applicant will be entitled to costs in asum of Rs. 15,000 payable by the appellant.
GUNAWARDENA, J. -1 agree.
Appeal dismissed.
Liquidator of the River Valleys Development Board v.
Hendrick Appuhamy and Another (Wijetunga, J.)
253
%C
WIJETUNGA, J.
I have had the advantage of reading in draft the judgment of mybrother Fernando. I regret very much that I am unable to agree with
him.
Since the facts relevant to this appeal have been set out by him inhis judgment, I do not propose to repeat them except wherenecessary.
As formulated by him, “the question for our determination involvestwo matters. Upon the dissolution of the RVDB and the appointmentof the liquidator, did the liabilities of the RVDB (in respect ofthe termination of the applicant and the benefits due to him ontermination) vest in or devolve upon the appellant? If so, wasthe applicant entitled to make and maintain an applicationunder section 31B(1) against the appellant in respect of thoseliabilities?”
It was the contention of learned President's Counsel for theappellant that a liquidator appointed under the Finance Act is in adifferent position to one appointed under the Companies Act.Fernando, J. agrees that clearly there are significant differencesbetween the two liquidation procedures but states that this meansthat no relevant inference can be drawn from a comparison. However,I think it would be useful to set out the provisions of law applicable toa liquidator under the Companies Act, No. 17 of 1982, at least forpurposes of easy reference. The provisions of sections 19, 20 and 21of the Finance Act, No. 38 of 1971, have been reproduced in thejudgment of Fernando, J.
The relevant provisions of the Companies Act are:
S.277 (1) The liquidator in a winding up by the court shall havepower with the sanction, either of the court or of the committee ofinspection-
fa) to bring or defend any action or other legal proceeding in thename and on behalf of the company ;
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to carry on the business of the company, so far as may benecessary for the beneficial winding up of such company;
to appoint an attorney-at-law to assist him in the performanceof his duties:
Provided that where the liquidator is an attorney-at-law heshall not appoint his partner unless the latter agrees to actwithout remuneration;
to pay any classes of creditors in full;
to make any compromise or arrangement with creditors orpersons claiming to be creditors, or having or allegingthemselves to have any claim, present or future, certain orcontingent, ascertained or sounding only in damages againstthe company, or whereby the company may be renderedliable;
to compromise all calls and liabilities to calls, debts, andliabilities capable of resulting in debts and all claims, presentor future, certain or contingent, ascertained or sounding onlyin damages, subsisting or alleged to subsist between thecompany and a contributory or alleged contributory, or otherdebtor or person apprehending liability to the company, andall questions in any way relating to or affecting the assets orthe winding up of the company, on such terms as may beagreed and take any security for the discharge of any suchcall, debt, liability or claim, and give a complete discharge inrespect thereof.
(2) The liquidator in a winding up by the court shall have power-
fa) to sell the movable and immovable property and things inaction of the company by public auction or private contract,with power to transfer the whole thereof to any person orcompany, or to sell the same in parcels;
to do all acts and to execute, in the name and on behalf ofthe company, all deeds, receipts, and other documents, andfor that purpose to use, when necessary, the company's seal;
to prove, rank and claim in the bankruptcy, insolvency, orsequestration of any contributory, for any balance against his
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estate, and to receive dividends in the bankruptcy,insolvency or sequestration in respect of that balance, as aseparate debt due from the bankrupt or insolvent, andrateable with the other separate creditors;
to draw, accept, make, and endorse any bill of exchange orpromissory note in the name and on behalf of the company,with the same effect with respect to the liability of thecompany as if the bill or note had been drawn, accepted,made, or endorsed by or on behalf of the company in thecourse of its business;
to raise on the security of the assets of the company anymoney requisite;
to take out in his official name letters of administration to any
deceased contributory, and to do in his official name anyother act necessary for obtaining payment of any money duefrom a contributory or his estate which cannot beconveniently done in the name of the company, and in allsuch cases the money due shall, for the purpose of enablingthe liquidator to take out the letters of administration orrecover the money, be deemed to be due to the liquidatorhimself:*
Provided that nothing herein empowered shall be deemed toaffect the rights, duties, and privileges of the Public Trusteeappointed under the Public Trustee Ordinance;
to appoint an agent to do any business on behalf of suchliquidator;
to do all such other things as may be necessary for windingup the affairs of the company and distributing its assets.
(3) The exercise by the liquidator in a winding up by the court ofthe powers conferred by the provisions of this section shall besubject to the control of the court, and any creditor or contributorymay make an application to the court for the exercise or proposedexercise of any of those powers.
S. 333. (1) The liquidator may –
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in the case of a members' voluntary winding up, with thesanction of an extraordinary resolution of the company, and,in the case of a creditors' voluntary winding up, with thesanction of either the court or the committee of inspection or{if there is no such committee) a meeting of creditors,exercise any of the powers specified in the provisions ofparagraphs (d), (e) and (f) of subsection (1) of section 277 toa liquidator in a winding up by the court;
without sanction, exercise any power other than thosereferred to in paragraph (a) by this Act given to the liquidatorin a winding up by the court;
exercise the power of the court under the provisions of thisAct of settling a list of contributories, and the list ofcontributories shall be prima facie evidence of the liability ofthe persons named therein to be contributories;
exercise the power of the court of making calls;
summon general meetings of the company for the purpose ofobtaining the sanction of the company by special orextraordinary resolution or fdf any other purpose he maythink fit.
The liquidator shall pay the debts of the company and shalladjust the rights of the contributories among themselves.
When several liquidators are appointed, any power given bythis Act may be exercised by such one or more of them as may bedetermined at the time of their appointment, or, in default of suchdetermination, by any number not less than two.
Even on a superficial reading of the respective provisions of theFinance Act and the Companies Act, the vast disparity between thepowers and functions of liquidators under the two Acts becomesquite evident. In my view, the powers of a liquidator under theFinance Act are restricted to those expressly mentioned in section20, though that section must be read with sections 19 and 21.Fernando, J. holds that the express power and duty to collect assetsand to discharge liabilities necessarily implies the power and the
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duty to bring and defend actions in relation to his functions. I have nodifficulty in broadly agreeing with that proposition. But, that does notdispose of the matter. In the case, before us, even assuming thatupon the dissolution of the RVDB and the appointment of theliquidator, the liabilities of the RVDB (in respect of the termination ofthe applicant and the benefits due to him on termination) did vest inor devolve upon the appellant, there is the threshold questionwhether the applicant was entitled to make and maintain anapplication under section 31B (1) of the Industrial Disputes Actagainst the appellant in respect of those liabilities.
Fernando, J. states that in determining what the jurisdiction of theTribunal is, three questions arise, and provides the answers-
“First, who can invoke that jurisdictions, or who can make anapplication?
The answer is clear, ‘it can be invoked only by or on behalf of aworkman.’
Second, to what subject-matter does that jurisdiction extend?
once again, the answer is not in dispute, only in respect of thetermination of services of a workman and/or terminal benefitsthereupon.
The third, and distinct question, is who is subject to thatjurisdiction, or against whom can such an application bemade? Section 31B(1) is silent as to the proper respondent."
It is in regard to his answer to the third question that I am unable toagree with him.
He goes on to say that "Mr. Nagendran would have us answer thatquestion by adding the words – words of limitation: ‘against hisemployer’. But the language of the subsection suggests that theLegislature intended a broader construction, for it gave a workman aright ‘to apply for relief or redress.' Since it does not restrict that rightto 'relief or redress against his employer,' it means, at least primafacie, that relief or redress can be claimed against any person. Ofcourse, if that leads to any absurd, unreasonable, or unjust result, itshould not be adopted. It may be argued, for instance, that thiswould allow a total stranger may be sued. But that is possible in anykind of litigation. Here the Tribunal will ensure that no injustice will
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result, by holding either that the workman who has invoked thejurisdiction has no cause of action against a stranger, or that itsjurisdiction extends only to a person who is liable to give 'relief orredress’ to the workman. The decisions of this Court, which I havediscussed, establish that although upon dissolution an employer-corporation may cease to be liable, its liability passes to theliquidator. Whatever might be the basis on which a Tribunal willdismiss an application against a total stranger, a liquidator is by nomeans a stranger, and is obliged to discharge the liability of thedissolved corporation. A workman is therefore entitled to claim reliefor redress from him. I therefore hold that section 31 B( 1) entitles aworkman to make and maintain an application for relief or redressagainst the liquidator of the dissolved corporation which was hisemployer."
I am of the view that the Industrial Disputes Act, when it speaks of'relief or redress’, takes cognizance of the ‘employer – workman'relationship based on a contract of service, which concept is woveninto the entire fabric of that law. It is, therefore, superfluous to specifythat such relief or redress should be claimed against the employer.
A bench of five judges of the then Court of Appeal of Sri Lanka, insetting aside a judgment of the then Supreme Court, considered thedefinition of the term ‘employer’ in section 48 of the IndustrialDisputes Act, in Carson Cumberbatch & Co. Ltd. v. Nandasena,{'s>under three limbs:
any person who employs any workman,
any person on whose behalf any other person employs anyworkmen,
{3) any person who on behalf of any other person employs anyworkman.
The majority of the Court (with one Judge dissenting) held interalia that (i) a labour Tribunal cannot, by making a wrong decision asto the identity of the employer, whether by reason of a mistake of factor by reason of a mistake of law, give itself power or jurisdiction tomake orders against a person who is not the particular workman’s'employer' within the meaning of the Industrial Disputes Act and (ii)the appellant was not an employer of the workman within the
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meaning off the definition of the term ‘employer’ in section 48 of theIndustrial Disputes Act. The person referred to as a personemploying a workman in each of the three limbs of the definition isintended to refer to a person who is under contractual obligation tothe workman.
Tennakoon, J. said at page 83 that “there are numerous otherenactments in which the term ’employer’ is defined in a mannersimilar to that employed in the Industrial Disputes Act … we mustconfess that we have found this excursion into the field of labourlegislation unhelpful in trying to ascertain the meaning of the wordemployer as used in the Industrial Disputes Act. A more legitimateand more profitable exercise would be to examine the IndustrialDisputes Act itself for any indication of the legislative intent. We findconsiderable evidence within the four corners of the IndustrialDisputes Act to support the view that an employer, whether he beprincipal or agent, must have a contract of service with theworkman." He emphatically stated at page 84 that “the existence of acontract with his employer is the sine qua non for identifying aworkman",
That only the employer could be made a party respondent in adispute under the Industrial Disputes Act was once again recognisedin Shaw Wallace & Hedges Ltd. v. The Palmerston Tea Co. Ltd.,mwhere Samarakoon, C.J. said at pages 14 and 15 that "We are hereconcerned with a dispute between an employer and workman … Thequestion for decision then is whether the appellant was an Agentwhich entered into a contractual obligation with the petitioner andthereby made itself liable to the petitioner…. The appellant was notthe employer of the petitioner and therefore has been wrongly madea party to the reference by the Minister".
In Ceylon Estates Staffs Union v. Land Reform Commission,i7)where counsel for the JEDB conceded that the JEDB became liableto employ the workman and pay him his wages and arrears as fromthe date when the estate vested in the Board, but disputed theBoard’s liability to pay the arrears of wages prior to that date,Sharvananda, C.J. held that by operation of law the JEDB hadsucceeded to the rights and liabilities of the Commission in respect ofthe workman and that the liability in respect of which the award wasmade became the liability of the JEDB and that the JEDB will have to
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give effect to the reliefs ordered by the award. He however madefurther observation that the Court has "taken the unusual course ofamending the award to make the JEDB liable."
In De Silva (Liquidator of the National Textile Corporation) v.Samajavadi Lanka Kamkaru Samitiya,16’ the Court of Appeal held interalia that the powers of the liquidator are confined to those specified insection 20 of the Finance Act. The only question for decision by theSupreme Court was whether a writ of prohibition against thecontinuation of proceedings by the Labour Tribunal should begranted; and Kulatunga, J. did set aside that part of the order of theCourt of Appeal which permitted the continuation of proceedingsbefore the Labour Tribunal. But, in the absence of a cross appealagainst the order quashing the addition of the appellant, the Courtdeclined to accede to the request of counsel to make order for suchaddition. It was also held that the Competent Authority of theGovernment Owned Business Undertaking of the N.T.C. cannot besued before the Labour Tribunal.
In Jayawickrama v. Jinadasa,"31 where the RVDB was dissolvedand the appellant was appointed as its liquidator under section 19 ofthe Finance Act No. 38 of 1971, whilst the application made to theLabour Tribunal by the respondent against the termination of hisservices by the said Board was pending, the Labour Tribunal refusedto add the appellant as a respondent. But in appeal the High Courtdirected the addition of the appellant.
The Supreme Court was unable to hear the case and decide thatquestion as the appeal had to be dismissed in terms of Rule 40 of theSupreme Court Rules, 1978. Thus, that decision is no more than anopinion of the High Court.
The decision of Fernando, J. in Wickramasinghe v. Sri Lanka StateTrading (Consolidated Exports) Corporation"* was in a situationwhere “the Corporation represented to the applicant and to theTribunal, and induced both to act on the factual basis that theliabilities of the Company, in respect of the subject-matter of the Lis,had devolved on the corporation, and invited the Tribunal tosubstitute the Corporation”.
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The Industrial Disputes Commission (presided over by H. W.Jayawardene, Q.C.). having made a thorough and exhaustiveexamination of the Industrial Disputes Act, made specific reference inits report (Ceylon Sessional Papers, 1970) to the expression’employer’ as defined in that Act and stated that "in our opinion thisdefinition is not sufficiently wide since it does not take intoconsideration the legal heirs, successors in law, executors andadministrators, and liquidators of a company, any one of whom maybe called upon to answer to a claim made by a workman” – (page175, paragraph 571).
The Commission went on to draft a comprehensive LabourRelations Act to replace the Industrial Disputes Act and in section172 thereof (page 395) included the following definition of 'employer':"Employer” means any person who employs, or on whose behalf anyother person employs, any workman, and includes a body ofemployers (whether such body is a firm, company, corporation ortrade union) and any person, who on behalf of any other person,employs any workman; and includes the legal heir, successor in law,executor or administrator, and liquidator of a company, and in thecase of an unincorporated body, the President or the Secretary ofsuch body, and in the case of a partnership, the managing partner ormanager.”
It is significant that despite a number of decisions of the AppellateCourts pertaining to the question of identity of an 'employer' underthe Industrial Disputes Act and the specific recommendations of theCommission on Industrial Disputes aforementioned, the Legislaturechose not to amend the existing definition of ‘employer’ in section 48,even when substantial amendments were made to that Act by theIndustrial Disputes (Amendment) Act. No. 32 of 1990.
In fact, with regard to appeals to the High Court from an order of aLabour Tribunal, the amending Act provides in section 31D (4) that“every employer who appeals to a High Court… shall furnish to suchlabour tribunal, security in cash" etc. Implicit in that provision is therecognition of the fact that it is the employer alone who could be suedin proceedings before the Labour Tribunal.
In the light of what has been stated above, I do not think that theLegislature intended that a liquidator would be made a party
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respondent to an application by a workman for relief or redressbefore a Labour Tribunal or that such liquidator would be substitutedin place of the ‘employer’.
On the question of enforceability of an order made by a LabourTribunal, section 40{1) (q) would have no application to a liquidator,as he is not the employer within the meaning of the IndustrialDisputes Act. Fernando. J. observes that "The fact that an ordermade by a court or tribunal is not enforceable does not mean that ithas no jurisdiction to make it." But, of what use would such an orderbe to a workman who is seeking relief within the framework of theIndustrial Disputes Act? I would not be content to assume that suchan award made by a Labour Tribunal would not “be insolently ignoredby a liquidator performing statutory functions under the directions ofthe Minister". Litigation in this sphere is not without examples to thecontrary. In any event. I would rather ensure that such an order isgiven effect to, having recourse where necessary to the penalprovisions of the Industrial Disputes Act, than leave it to the 'goodsense' of the liquidator.
Even as regards the provisions of section 44B to which Fernando,
J.refers, such a civil suit also could be instituted only against anemployer and, as he himself points out. does not deal with thesuccessor to an employer. In the view I have taken, I cannot agreewith him that such an award would be enforceable by civil suitagainst a liquidator, who is not even the successor in law of theemployer.
On the other hand, from the point of view of a liquidator, what is thejustification for exposing him to liability under the penal provisionsaforesaid, when he was never the 'employer'? The words “unless thecontext otherwise requires" in section 48 do not in my view warrantthe inclusion of a person who is not even a successor in law of theemployer, merely for the reason that "the real employer has ceased toexist." Such an interpretation would even inhibit a person fromundertaking the functions of a liquidator under the Finance Act. Toclothe the liquidator with a status in excess of the powers conferredon him by section 20 of the Finance Act would do violence to thoseprovisions. If there is a lacuna in the law, it is the Legislature that musttake remedial action.
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The foremost question is whether the liquidator is the 'employer’ ofthe Workman’, within the meaning of the Industrial Disputes Act. If theanswer to that question is in the negative, then it would follow that theworkman cannot make the liquidator a party respondent to anapplication for relief or redress under the Industrial Disputes Act.
While I do appreciate the desirability of giving the term ‘employer’a wider definition, (which my brother Fernando seeks to do through’interpretation’), in my view, it is essentially a matter for the Legislatureand not for this Court.
This brings me to the question whether Arnoida v. Gopalan (Supra)was wrongly decided. The workman's application was ’for the periodhe was employed under Mr. Bobby Arnoida.' The settlement arrivedat between the petitioner (the widow) and the respondent was 'onbehalf of the estate of the late Mr. Bobby Arnoida'. Counsel for therespondent argued that "the sum which she (the petitioner) hadconsented to pay included the wages due to the respondent for afew days in September when he was employed under the petitioner.1'Thambiah, J., however, held that the Labour Tribunal had onlyadjudicated on a claim of the respondent for wages, gratuity etc.,alleged to be due to him during the period he worked under the lateMr. Bobby Arnoida, and this contention, therefore, was untenable.There was no finding that the sum which she had agreed to payincluded the wages due for those few days.
Fernando, J. states that ‘the question for decision was … whetherin law the liability of the deceased had passed to the widow, and, ifso, whether the IDA permitted the workman to claim relief or redressagainst the widow. Had the widow been sued only qua widow, Iwould have agreed that she was not liable – because that was notsufficient to show that the liability of the deceased had passed toher.”
The judgment in Arnolda’s case states at page 157 that "liabilityunder this statute, therefore, cannot be extended to a widow of adeceased employer, who is brought before the Labour Tribunal andagainst whom relief is sought for a liability incurred by her latehusband”, indicating thereby that the Tribunal did not deal with anyother claim.
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Except for the mere assertion of counsel for the respondent at thestage of appeal that “the sum which she (the widow) had consentedto pay included the wages due to the respondent for a few days inSeptember when he was employed under the petitioner”, there is nomaterial whatsoever to show that the widow had been sued in anycapacity other than qua widow. The fact that the settlement did nottake into account the alleged period of service under the widow isclear as ‘the petitioner agreed to pay the respondent the sum ofRupees 2,073/50 cts. on behalf of the estate of the late Mr. BobbyArnolda". Furthermore, what the petitioner (the widow), by letterdated 2nd September 1959, had informed the respondent was that"the latter’s services had ceased in view of the death of herhusband."
There was thus no need to adjudicate upon the question whetherthe widow was the employer in her own right, as the entire basis ofthe applicant's claim against her was qua widow.
I cannot, therefore, agree that Arnolda v. Gopalan was wronglydecided.
For the reasons aforesaid, I would allow this appeal, set aside theorder of the High Court, and affirm the order of the Labour Tribunal.The appellant will be entitled to costs, both here and in the Courtbelow. It is noted that, as agreed by the parties in the High Court, thisorder would be binding in the 97 connected cases as well.
PERERA, J. -1 agree.
ANANDACOOMARASWAMY, J. -1 agree.
By majority decision appeal allowed.
