066-SLLR-SLLR-2003-V-3-MUDALIGE-GROUP-PVT-LTD-v.-COMMISSIONER-OF-LABOUR.pdf
CA
Mudalige Group (Pvt) Ltd. v The Commissioner of Labour
(Udalagama, J,)
359
MUDALIGE GROUP (PVT) LTD.vCOMMISSIONER OF LABOURCOURT OF APPEALUDALAGAMA, J. (P/CA)
C.A. 1362/2000SEPTEMBER 18, 2003OCTOBER 28, 2003
Employees Provident Fund Act – Sections 2( 1), 3, and 10 – Is the business of bet-ting on horse racing,,a business within the ambit of a “covered employment? -Betting and Gambling Levy Act, No. 40 of-1988
The petitioner contended that, the company was not liable to contribute to theE.P.F.
Held:
(i) In the E.P.F. Regulations of 1958 as amended, reference is made to threecategories of employment excepted from the ambit of covered employment.The business of betting on horse racing is not one of them. It is a businesswithin the ambit of the term “covered employment."
Per Udalagama, J.
"Petitioner is not entitled to evade payment relying on the company’s ownillegal conduct which in my view amounts to controverting principles of pub-lic policy, the Betting and Gambling Levy Act is valid law for the purpose of
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State revenue, betting and gambling are not considered illegal for revenuepurposes."
APPLICATION for a Writ of Certiorari.
K.S.Thilakaratne for petitioner.
Sathya Hettige, D.S.G for the respondents.
Cur.adv.vult
December 3, 2003UDALAGAMA, J.
The petitioner-company, purportedly defunct, by this application 01moved to quash by way of a Writ in the nature of Certiorari the deci-sion contained in a letter authored by the 2nd respondent dated11.02.2000 marked “E”.
Significantly the prayer to the petition is without a specific plea forspecific relief although the caption refers to a prerogative Writ.
Admittedly document “E” refers to the subject of the failure on thepart of the petitioner-company to deposit Employees Provident Fundcontributions and surcharge made thereon due to the petitioner’sdefault as set out in document marked “D”.10
It is amply clear to this court that the details contained in the afore-said documents “D” and “E” had been made consequent to a regularinquiry. There is not even a suggestion of impropriety in respect of theinquiry or that the conduct of the said inquiry violated the principles ofnatural justice or was conducted in an unreasonable manner.
The petitioner-company had been afforded an opportunity to partic-ipate in the inquiry referred to above (2R2). The only submission of thelearned Counsel for the petitioner-company against the impugned let-ter “E” appears to be that the employees had been engaged in an ille-gal business of betting on horse racing, and that the employees were 20paid a commission on the daily collection and that the latter were notentitled to E.P.F. benefits.
The learned Counsel also brought to the notice of this court thecase of S.C.(Spl) Application No.157/98 adverting to the fact that thesaid application in respect of the unlawful termination of employmentalso made against the same petitioner-company had been rejected onthe basis that employment having reference to an illegal activity wasdismissed.
CA
Mudalige Group (Pvt) Ltd. v The Commissioner of Labour
(Udalagama, J,)
361
Perusing the evidence of Labour Tribunal case No. 1/454/94 andthe subsequent appeal to the High Court bearing No.HCA/LT/1168/95and the refusal for relief by the Supreme Court in S.C.(Spl) L.A.No.157/98 it is amply clear that'the proceedings in the above actionpertains to the Industrial Disputes Act in respect of unjust termination,(see documents A.B.C. respectively)
Apart from the petitioner’s failure to adduce this submission asreferred to above before the President of the Labour Tribunal, I aminclined to the view that the claim in the instant action is under section10 of the Employees Provident Fund Act as amended.
• Provisions of section 3 of the aforesaid Act specifically provides forthe declaration of a “covered employment” which term is defined insection 2(1) read with Schedule (1) of the EPF Regulations of 1958 asamended. Vide above Regulation reference is clearly made to threecategories of employment excepted from the ambit of “coveredemployment”. The business of betting on horse racing is not one ofthem.
The business of betting on horse racing is in my view a businesswithin -the ambit of the term “covered employment”. Nor does theexception refer to an illegal business. The proviso in my view refers tosuch business which have an alternative retirement scheme.
In any event the petitioner-company is not entitled to evade pay-ment relying on the Company’s own illegal conduct which in my viewwould amount to controverting principles of public policy. In fact thepetitioner-company by this application also appears to evade its fiscalliability to defraud the Government of revenue. The Betting andGambling Levy Act, No.40/88 is valid law for the purpose of State rev-enue and betting and gambling are not considered illegal for revenuepurposes.
Apart form the above it is my considered view that to deny toemployees (3-14 respondents) statutory entitlement under the E.P.F.on the basis that the employer conducts an illegal business is clearlyunreasonable.
On the issue of the employment registration number quoted in doc-ument “E” in respect of one N.W.J.Mudalige and the suggestion thatsame does not apply to the petitioner-company is untenable, firstly as
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no such objection had been taken up before the President of theLabour Tribunal at the inquiry to the application of the employees on08.09.98(2R2). Secondly as in any event no prejudice would becaused as the aforesaid M.W.J. Mudalige was admittedly was theChairman of the petitioner-company (para 4 of the petition).
For the aforesaid reasons this application of the petitioner-compa-ny for relief by way of prerogative Writ is refused and dismissed.
Application dismissed.
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