032-NLR-NLR-V-79-1-MOOSAJEES-LIMITED-Petitioner-and-EKSATH-ENGINERU-SAHA-SAMANYA-KAMKARU-SAMITHI.pdf
Mooaajees v. Eksath Engineru Kamkaru Samithya
285
1976Present : Rajaratnam, J., Sirimane, J. and
Colin Thome, J.
MOOSAJEES LIMITED, Petitionerand
EKSATH ENGINERU SAHA SAMANYA KAMKARUSAMITHIYA, Respondents
S. C. Application No. 945/74
Termination of Employment of Workmen (Special Provisions') Act, No. 45of 1971, section 6—Dispute raised by employer with regard toemployment and termination—Does this oust jurisdiction ofCommissioner of Labour to hold an inquiry—Powers ofCommissioner under section 6.
Where the Commissioner of Labour is performing his statutoryfunctions under the Termination of Employment of Workmen(Special Provisions) Act, the fact that there is a dispute with regardto employment and termination does not deprive him of jurisdictionto hold the inquiry. He has power to make an order under section 6of the Act even against an employer who disputes that he is anemployer.
Cases referred to :
Castelli v. Cook, (1849) 7 Hare 89.
Application for a Writ of Certiorari.
283 RAJ AH ATNAM, J.—JMoosajees v. Eksath En-gineru Kamkaru Samithiya
N. Satyendra, with L. A. T. Williams and P. Suntheralingam,for the petitioner.
N. Singaravelu, for the 1st respondent.
V. C. Goono.tiUdke, Deputy Solicitor-General, with Lai Wimala-ratne, State Counsel, for the 3rd and 4th respondents.
April 30, 1976. Rajaeatnam, J.
This application for a Writ of Certiorari is made by Messrs.Moosajees Limited seeking to quash the order made by theCommissioner of Labour under the provisions of section 6 of theTermination of Employment of Workmen (Special Provisions)Act requiring the petitioner to reinstate ten workmen belongingto the respondent union.
The main ground relied upon by the petitioner was that thecompany was not the employer of any of these ten workmen andthat it had not terminated the services of the workmen and thatin these premises the Commissioner of Labour had no j urisdictionto make any order under section 6 of the said Act.
The respondents to this petition are the union whichrepresented the workmen and the Labour Officials. The 2ndrespondent was one Mr. Upasaka Appu who according to thepetitioner was an independent contractor providing for thecompany the services of these workmen for unloading, balingand loading of coconut fibre for export. According to thepetitioner payment was made on the basis of piece rate.
The petitioner filed two affidavits one from a director of thecompany, Mr. Asker Salehbhoy Moosajee, and the other from the2nd respondent Mr. Upasaka Appu.
According to the affidavits of both these persons, the 2ndrespondent was the sole employer of the workmen and exerciseddisciplinary control of the workmen and exercising his sole rightto do so terminated their services at the end of the secondrespondent’s contract with the petitioner.
Learned counsel for the petitioner submitted before us that inthe circumstances of this case, and where the Commissioner ofLabour is given special statutory jurisdiction to make ordersunder section 6 of the Act, it was not open for him where factsare in issue with regard to the question of who the employer isand whether there was a termination, to subjectively adjudicateon these matters and assume jurisdiction to make orders undersection 6. He submitted that there must be an objective existenceof facts for the exercise of jurisdiction under the provisions ofthe Act.
K A J Aii ATX AM, J Moosajees v. Kksolh Engineru Kamkaru Hamithiya.
While we agree that an erroneous finding on the law and onthe facts on the face of the record may be a matter for a Writof this nature, we do not think we can agree to the propositionthat the jurisdiction of the Commissioner of Labour can belimited to a situation when there is no dispute with regard toemployment and termination. If that were so, it is open to everydishonest employer to dispute these questions and oust the juris-diction of the Commissioner. It will lead to the provisions of theAct being stultified especially in cases where the remedial reliefis most deserving. It is our view that on the facts placed beforethe Commissioner, it is within his powers to make his orderunder section 6 even against an employer who disputes that heis an employer. In this case the facts and circumstances amplyprove not only that the petitioner is an employer but that he iswrongly and/or falsely disputing that fact.
We have perused the findings of the Assistant Commissionerof Labour (p. 43), the 4th respondent in this application andthe reasons set out therein. On the documentary and oral evidenceled, the evidence was overwhelmingly convincing that thepetitioner company was the employer. The Works Manager ofthe company has suspended even Upasaka Appu’s son fromwork. The General Manager and the Director have sent letterscf warning to the workmen with copies to the Works Managerand all the evidence shows that the workmen were under thedirect supervision and disciplinary control of the managementof the petitioner Company. Upasaka Appu did not appear toknow why he was paid Rs. 75 a week by the company. Thenotice terminating the services of K. Hemapala the son ofUpasaka Appu who claims to be the employer of his son wasproved to have been sent by Moosajees Ltd., although signedby the father. There is an admission in the written submissionsfurnished on behalf of the employer that the work place wasmade out of bounds for Upasaka Appu (vide p. 6). At every turnthere is evidence that every incidence of employment was byMoosajees and that Upasaka Appu was a puppet. It appearsfairly clear that this was a device adopted by the petitioner toescape the liabilities of an employer.
The findings of the labour authorities were justified on the■evidence led and we see no error on record. We are of the viewthat the averments in the affidavits filed in this application withregard to the employment of these workmen cannot be accepted.
It is evident on the material before us that Moosajees Ltd.employed Upasaka Appu to serve as a tool in their hands tothemselves escape liabilities of employment. The pleadings in
288RAJARATNAM, J.—Moosajeea v. Ekaoth Engineru Kamkaru Samithiya
their petition and affidavit do not contain a full disclosure of thereal facts of the case and to say the least the petitioner has notobserved the utmost good faith and has been guilty of a lack ofuberrima fides by a suppression of material facts in the pleadings.It was neither fair by this Court nor by his counsel that therewas no full disclosure of material facts. Learned counsel for thepetitioner acted very properly when he did not pursue a certainline of argument when we referred him to certain documents andfacts which he was not aware of and which were elicited in thecourse of the inquiry before the Labour Officials.
If I may repeat the words of Wigram V. C. in the case ofCastelli v. Cook., (1849) 7 Hare, 89, 94: —
“ A plaintiff applying ex-parte comes (as it has beenexpressed) under a contract with the Court that he will statethe whole case fully and fairly to the Court. If he fails to dothat, and the Court finds, when the other party appliesto dissolve the injunction, that any material fact had beensuppressed or not properly brought forward, the plaintiff istold that the Court will not decide on the merits, and that, ashe has broken faith with the Court, the injunction must go ”.
In the circumstances, we have refused this application withcosts payable by the petitioner-employer fixed at Rs. 1,000 to thefirst respondent and another sum of Rs. 1,000 to be paid to the3rd and fourth respondents. The application is refusedaccordingly.
Sirimane, J.—I agree.
Colin Thome, J.—I agree.
Application refused.