018-SLLR-SLLR-1985-V2-PAKISTAN-INTERNATIONAL-AIRLINES-CORPORATION-v.-YASEEN-OMAR.pdf
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PtA Corporation v. Yaseen Omar
143
PAKISTAN INTERNATIONAL AIRLINES CORPORATION
v.YASEEN OMAR
COURT OF APPEAL.
E. DE SILVA. J. AND BANDARANAYAKE, J.
A. 503/75F. C.A. 516/75F – D C. COLOMBO A/89/Z.
APRIL 29, 30 AND MAY 2, 1985.
Contract of employment – Industrial Disputes Act – Scheduledemployment – Sections 2(1), 3(1), 5, 11 and 19 of Termination of Employment ofWorkmen (Special Provisions) Act. No. 45 of 1971 – Burden of proof – Section 106of the Evidence Ordinance – Framing of issues – Section 79 and section 146 of theCivil Procedure Code – Shop and Office Employees Act s. 68.
The defendant Corporation employed the plaintiff Yaseen Omar as its District SalesManager in Colombo but terminated his services with effect from 31.12.1974. Theplaintiff claimed the termination was illegal and in violation of section 2(1) of theTermination of Services of Workmen (Special Provisions) Act. No. 45 of 1971, andprayed for an injunction restraining the defendant from interfering with the plaintiff'sduties as District Manager. The defendant denied it had a place of business in Colomboand pleaded that defendant was, along with his brother, a General Sales Agent of thedefendant in Sri Lanka on a commission basis and further that as the total number ofemployees in the Airline was less than 15 the Termination of Services of Workmen(Special Provisions) Act, No. 45 of 1971, did not apply and the plaintiff was not in ascheduled employment to which the Act applied. The Trial Judge gave judgment for theplaintiff but refused an injunction. The defendant appealed against the judgment and theplaintiff filed a cross-appeal against die refusal of the injunction.
Held-
The plaintiff was a workman as that term is understood in the Industrial DisputesAct. He was on a contract of service on a monthly salary and not an agent. Hisemployment was that of Sales Manager of a commercial undertaking, to wit. thebusiness of transporting persons or goods for fee or reward and had necessarily to havea place of business which was an office as envisaged in the Shop and EmployeesAct (S. 68). and within the schedule of employment in Act No. 45 of 1971. This bringsthe plaintiff's employment within the definition of scheduled employment' in section 19of Act No. 45 of 1971. 2
(2)The burden was on the defendant to show that it is entitled to invoke the protectionof Section 3 (1) (a) by proving that the number of employees was less than 15. Whenplaintiff averred illegal termination of his employment it was implicit that he did not fallwithin this exception. There was no burden on the plaintiff to plead the inapplicability tohim of this exception. Further the facts involved in the exception as a pragmatic
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consideration were within the peculiar knowledge of the employer and not of theemployee. When new matter is pleaded in an answer by way of defence and there is noreplication every material allegation shall be deemed to have been denied by the plaintiffand the burden of proof of such new matter will be. both as a general principle affectingthe burden of proof and as a rule of procedure, on the party asserting. The defendanthad failed to discharge the burden of proof that lay on it.
No duty was cast on the judge to frame issues on the burden of proof or the matterof the exception under section 3 of Act No. 45 of 1971.
In view of the lapse of time (more'than a decade of years) no permanent injunctionshould be granted in favour of the plaintiff-appellant.
Cases referred to:
Ratnam v. Perera f1961> 64 NLR 198. 204
Zahir v. David (1959) 61 NLR 357.
Punchibanda v. Punchibanda (1941)42 NLR 382.
Diyes Singho v. Herath (1962) 64 NLR 492. 494.
Appuhamyv. Kiriheneya (1896) 3 NLR 155.
Daniel v. Lewis (1959) 61 NLR 157.
Nair v. Saundias (f 936) 37 NLR 439.
Weerawago v. Bank of Madras (1892) 2 CLR 11.
Lokuhamyv. Sirimala (1892) 2 CLR 125
Fernando v, Ceylon Tea Plantations Co. (1894) 3 CLR 51.
Ill) A. G.v. Smith (1905) 8 NLR 229. 241.
Silva v. Obeysekera'11923) 24 NLR 97. 107.
The Bank of Ceylon. Jaffna v. Chelliahpillai (1962) 64 NLR 25. 27 (P.C.)
Hill v. Parsons & Co. Ltd (1971] 3 All ER 1345.
Ranasinghev. State Mortgage Bank {1981 j 1 SLR 121.
Clark v. Thachburn (1985] 1 All ER 211.
APPEAL and cross-appeal against judgment of the District Court of Colombo
Mark Fernando, P.C., with M. A. Bastianszfor defendant-appellant in 503/75 and fordefendant-respondent in 516/75.
H. W. Jayawardana. Q.C., with H. L. de Silva. P C. with V Ratnasabapatby and MissSujatha Mudannayake for plaintiff-respondent in 503/75 and for plaintiff-appellant in516/75.
Cur. adv. vult.
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PIA Corporation v Yaseen Omar
145
July 3. 1985.
BANDARANAYAKE, J.
This concerns an appeal by the defendant from the judgment anddecree of the District Court and a cross-appeal by the plaintiff. Thedefendant-appellant is the Pakistan International Airlines Corporationcarrying on business inter alia of transporting persons or goods byaeroplanes. The plaintiff was employed by the defendant as DistrictSales Manager, P.I.A., Colombo! The defendant terminated theservices of the plaintiff with effect from 31.12.74. It was contendedby the plaintiff that this purported termination was illegal and inviolation of the provisions of s.2 (1) of the termination of Services ofWorkmen (Special Provisions) Act, No. 45 of 1971.
The plaintiff filed action in the District Court for a declaration that –
the plaintiff's services had not been lawfully terminated.
that the plaintiff continues in service with the defendant andholds the office of District Sales Manager of the defendant in SriLanka, and
for an injunction restraining the defendant from interfering withthe plaintiff's duties as District Sales Manager until his services
* are terminated in accordance with the provisions of theTermination of Employment of Workmen (Special Provisions)Act, No. 45 of 1971.
The learned District Judge entered judgment for the plaintiff asprayed for in Clauses (a) and (b) but refused the prayer for aninjunction in Clause (c). The plaintiff, as already mentioned, appealsfrom this refusal to grant an injunction. The defendant has appealedfrom the judgment upon Clauses (a) and (b).
. In the answer and at the trial it was admitted that –
(i) the defendant is a Corporation carrying on business inter alia oftransporting persons and goods by aeroplanes for fee orreward ;
(n) the District Court of Colombo had jurisdiction to hear anddetermine the action ;
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that the defendant by his letter X1 appointed the plaintiff asDistrict Sales Manager in Sri Lanka of P I.A. ;
that since 23 August 1971- the plaintiff was in the employmentof the defendant and functioned as District Sales Manager ofP I.A. in Sri Lanka on a consolidated salary of Rs. 1.250 permonth ;
that by letter X2 the defendant purported to terminate theservices of the plaintiff as from 31.12.74.
The defendant denied that –
the defendant had a branch office in Colombo at No. 10, Bankof Ceylon Building, Fort, Colombo, as averred in paragraph 2 ofthe plaint. It was averred in paragraph 2 of the answer that theresidence of the defendant had been wrongly stated in thecaption. Further answering this paragraph the defendantaverred that its business in Sri Lanka was carried on through itsemployees. More specifically the defendant emphasized that'Partnership business ’Travemars’ consisting of the plaintiffand his brother had been at all material times the General SalesAgent of the defendant in Sri Lanka on a commission basis.Premises No. 10, Bank of Ceylon Building, identifiable as the
P.I.A. office is the business premises of 'Travemars' as GeneralSales Agent of the defendant'. This point was strenuouslytaken by Counsel for the appellant at the hearing of this appealsubmitting that the Trial Judge was in error in holding in theface of the denial and without framing an issue upon it, that No.10, Bank of Ceylon Building, Fort, Colombo, was an office ofthe airline and consequently the plaintiff was in a 'scheduledemployment' to which the Act applied ;
any cause of action has accrued to the plaintiff to sue thedefendant,
paragraph 9 of the plaint that the termination of services wasillegal and in violation of the provisions of s. 2 (1) of Act 45 of1971 and contended that the Act did not apply to the plaintiffby virtue of s. 3 (1) (a) of the said Act which protected the
' defendant as the total number of employees with the airline atthe time was less than 15 in number which had the effect ofexcluding the defendant from the definition of an 'employee'under the Act.
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Objection was also raised to the grant of an injunction as prayed for.
At the trial the plaintiff raised a single issue namely 'Is the plaintiffentitled to the relief claimed by him in the plaint ?'
The defendant raised the issues :
'(ii) Should the plaintiff's action be dismissed for want of an issueraised by the plaintiff setting out. if the dismissal was wrongful, whythe dismissal was wrongful ?'
"(iii) Should the interim injunction issued by this Court standdissolved and should a permanent injunction be refused ?'
No evidence was led at the trial by either side. Both partiesaddressed written submissions to Court. Oral submissions were alsomade by both parties.
At the hearing ot this appeal learned President's Counsel for theappellant urged,
(i) that as set out in paragraph 2 of the answer the office of'Travemars' at No. 10, Bank of Ceylon Building was the officeof that Firm and not of the Airline and referred the Court to anadmission by the plaintiff at X3 that that Firm was the GeneralSales Agent of the defendant on a Commission basis and notan employee of the defendant. It was urged that an, agentviewed in a commercial or contractual sense in thecircumstances only sells the principal's goods. Counselreferred to Ratnam v. Perera (1).
It was also urged that although the defendant denied the avermentm paragraph 2 of the plaint no issue was framed by the learned DistrictJudge regarding this but the Judge came to a finding that “in admittingpara 1 of the plaint the defendant admitted that it carried on abusiness or commercial undertaking in such place", and went on tohold that, an employee in such an undertaking is in a 'scheduledemployment". It was submitted that the trial Judge could not havecome to this finding on the pleadings and without framing an issueregarding it in the face of the denial by the defendant In the result itwas argued that it was not proved that by operation of B of theschedule to Act 45.of 1971 read with s. 68 (1) (a) of the Shop &Office Employees Act, Cap. 1 29 the plaintiff was in a 'scheduledemployment' to which Act 45 of 1971 applied.
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(ii) that although the plaintiff was a 'workman' in the sense of the. Industrial Disputes Act as required by interpretation section 1 gof the Act No. 45 of 1971 the work force in fact was only. 3employees. Hence, as there were less than 15 workmen, by theterms of s. 3 (1) of Act 45 of 1971 the defendant was entitledto the protection of the Section as the Act applied only tosituations where there were 15 or more workmen. In the result,in this case the definition of 'employer' and 'workman' did not^pply and therefore the special provisions of the law regardingthe termination of employment of workmen did not apply. It wasargued that there was a duty on the Judge to have raised anissue on this but that was not done. There was no evidenceeither led at the trial.
It was further submitted that instead, the trial Judge wrongly placedthe burden of proving that the defendant was entitled to the protectionof s. 3(1) (a) of Act 45 of 1971 on the defendant. In thecircumstances the finding of the trial Judge of the relationship ofemployer-workman was an error. Although the plaintiff relied on theviolation of the statute the trial Judge could not have come to such afinding.
(lii) that the findings of the learned District Judge are not supportedby the pleadings or admissions and were reached without theframing of relevant issues. Detailed specific references weremade to unsatisfactory aspects of the judgment as claimed byCounsel. It was submitted that the Judge treated as admissionsitems which were not admissions. As regards treatment ofadmissions Counsel cited the cases of Zahir v. David Silva (2),Punchibanda v, Punchibanda (3), Diyes Singho v. Herath (4)and referred to s. 58 of the Evidence Ordinance. Thesubmission was made that there was a clear duty on the Judgeto frame issues on the disputed matters but he failed to do so.Referring to ss. 79 and 146 of the Civil Procedure Code it wasargued that whenever averments in the plaint were denied in theanswer and that denial raised new matter in the answer and noreplication is filed to meet it, it is open to the plaintiff, if hedenies the averment to have an issue framed on it and thus putthe defendant to the proof of the facts averred. If no issue inthat way is settled parties must be held not to have been atissue on those facts and no burden lies on the defendant to
CAPIA Corporation v. Yaseen Omar {Bandaranayake. J)149
prove them. So Counsel submitted there was a denial of para 9ol the plaint that the termination was illegal an in violation of Act45 of 1971 and a denial of liability under the Act as theemployees were less than J 5. As the plaintiff raised no issuesand none were framed there was no burden on the defendant toprove them. In support Counsel particularly relied on thedecision of 2 Judges of the Supreme Court in the case ofAppuhamy v. Kiriheneya (5). Reference was also made tos. 103 of the Evidence Ordinance. Daniel v. Lewis (6). Nair v.Saundias (7) etc. on the question of the burden of proof.Counsel also referred the Court to the cases of Weerawago v.Bank of Madras (8), Lokuhamy v. Sirimala (9), Fernando v.Ceylon Tea Plantations Co.(10). A. G. v. Smith (11). Silva v.Obeysekera (12), The Bank of Ceylon. Jaffna v. Chelliahpillai(13) on appropriate procedure in the absence of replication.
As regards the cross-appeal by the plaintiff asking for apermanent injuction it was argued on behalf of thedefendant-appellant that if the termination of employment wasnull and void and in contravention of the Act then theCommissioner was given power to give orders to the employerwith a corresponding duty by the employer to obey them and afailure to comply resulting in the commission of an offencemade punishable under the Act.
An injunction granted by the Court would effect the 1974termination as it then cannot be adjudicated upon by theCommissioner and this would deprive the Commissioner of theexercise of his powers under s. 6 of Act 45 of 1971 and take thematter out of the ambit of the powers given to an administrator unders. 11 of the Act. Furthermore, an injunction granted after the lapse of- 11 years would offend social policy of dealing expeditiously 'withcases.
Learned Queen's Counsel appearing for the plaintiff-respondentsubmitted that the plaintiff's action was not for wrongful dismissal butan action for a declaration of the plaintiff's rights in that the defendantpurported to dismiss the plaintiff illegally in violation of the provisionsof a statute viz : s. 2 of Act 45 of 1971. He submitted that this alteredcommon law rights of workmen vis a vis the employer. If the provisionsof the Act have been violated it is no termination at all. Thedefendant-appellant approached- the case in the District Court on an
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erroneous footing, namely, that of wrongful termination at commonlaw. It was contended that any termination must be in terms ofs. 2 (1) (a) and (b) of Act 45 of 1971. It is convenient to set themdown:
Section 2 (1) – No employer shall terminate the scheduledemployment of any workman without –
the prior consent in writing of the workman ; or
the prior written approval of the Commissioner.
Counsel also referred to the provisions of s. 5 which reads asfollows
"Where an employer terminates the scheduled employment of aworkman in contravention of the provisions of this Act. suchtermination shall be illegal, null and void and accordingly shall be ofno effect whatsoever."
Further s. 11 (1) reads "The Commissioner shall be in charge of thegeneral administration of the Act". Section 19 contains theinterpretation of “employer", "scheduled employment" and "workman"and s. 20 states that the provisions of the Act prevail over otherwritten law. This does not mean however that the common law rightto enter upon a declaratory action before a competent Court has beentaken away, and cited the case of Hitt v. Parsons & Co. Ltd. (14) insupport
Respondent's Counsel’s submission amounted to saying that theplaintiff had been dismissed in violation of the Special Provisions ActNo. 45 of 1971 so that such termination was void and illegal and insuch circumstances plaintiff is entitled to a declaration that he is stillemployed. It was submitted that in view of the defendant's admissionof paragraph 1 of the plaint it meant that it was admitted that theplaintiff came within the definition of "scheduled employment". Theletter of appointment X1 showed that the employment was in anairline which by virtue of s. 68 (1) (a) of the Shop and OfficeEmployees Act would come within the definition of a commercialundertaking transporting persons or goods for fee or reward whichbrings it within the meaning of 'office' in the section ^As s. 68 dealtwith the 'place' of business it comes within the definition of"scheduled employment" in s 19 of Act 45 of 1971 for the reason
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PIA Corporation v. Yaseen Omar (8andaranayake, J.)
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that an office from which the Sales Manager of the Airline workedmust be regarded as an 'office' coming within the definition in Cap.129 and thus 'scheduled employment' in Act 45 of 1971.
As far as the number of employees was concerned it was submittedon behalf of the plaintiff-respondent that the burden was on theplaintiff to show that he had a contract of employment but that theburden was on the defendant to show that he is entitled to invoke theprotection of s. 3(1) (a) by proving that the number of employeeswas less than 15. Otherwise this Act cannot be invoked. Section 19repeats the exception in s. 3. As to the burden of proof it was alsosubmitted that it is the employer who would know the number ofemployees and this being special knowledge he had, s. 106 of theEvidence Ordinance would be the governing section as to burden ofproof.
As to issue 2 framed by the defendant at the trial it was submittedby learned Queen’s Counsel that it was meaningless as this was notan action for wrongful dismissal. As to the failure to prove issues ascomplained by the defendant-appellants it was submitted that whennew matter is pleaded in the answer (vide paragraph 6 of the answerdenying paragraph 9 of the plaint as to the applicability of Act 45 of1971) by way of defence and there is no replication every materialallegation shall be deemed to have been denied and the burden ofproof of such new matter will lie on the party asserting. Counselparticularly relied on the decision of 3 Judges in the case of Lokuhamyv. Sirimala (supra) which followed the dissenting judgment ofBurnside, C. J. in Weerawago v. Bank of Madras (supra). It wassubmitted that the decision of 2 Judges in that case was not bindingand should not be followed. Also cited was the case reported at(1949). All India Law Reports (P.C.) 319 at 320. It was alsosubmitted that in view of paragraph 9 of the plaint averring that thetermination was illegal and void and of no effect as it violated s. 2 (11)which was the crux of the case, there was no question of framingissues. The Commissioner administered the Act. Either his permissionmust be obtained or the workman must consent in writing. Adeclaratory action could be brought by the plaintiff for a violation of theprovisions of the Act. The decision in Ranasinghe v. State MortgageBank (15) was cited in support.
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In regard to the question of an injunction, it was submitted that asthis was not a claim in damages but a declaration for violation of aright, for acting illegally and not merely wrongfully an injunction lay.The cases cited in support were Clark v. Thachburn (16) and Hill v.•Parsons & Co.. Ltd., (supra).
Conclusions :
The matter requiring the attention of the Court is whether theprovisions of Act 45 of 1971 protecting the employment of'workman' could be invoked by the plaintiff-respondent. The plaintiffmust be a 'workman' employed in a scheduled employment'governed by the Act and whose employment has been terminatedexcept by the means provided by the Act in order to succeed in thisaction.
Taking the matter of 'scheduled employment' first, the plaintiff, hasaverred in paragraph 4 of the plaint that he was appointed DistrictSales Manager by XI and an admission of this paragraph is in theanswer and an admission has also been recorded on 16.6.76 by theCourt in the presence of the parties and their Counsel that 'it isadmitted that the plaintiff was in the employment of the Defendantfrom 23.8.71.' This appointment then, taken in the context of theaverment in paragraph 1 of the plaint that the defendent-appellant is aCorporation carrying on the business of an Airline Transportingpassengers and goods for fee or reward'which averment has beenspecifically admitted in the answer and invokes in my view theprovisions of s. 68 (i) (a) of the Shop and Office Employees Act, Cap.129 L.E.C..whereby the plaintiff's employment would be that of SalesManager of an establishment maintained for the purpose of thetransaction of the business of a commercial undertaking, to wit. thebusiness of transporting persons or goods for fee or reward. Such anestablishment must necessarily have a place of business. It is not onein the nature of for instance the business of a travelling salesman whomay not have a fixed place of business.
Paragraph 5 of the answer admits that plaintiff was on a monthlysalary and discharged his duties efficiently. Although his efficiency isnow sought to be denied in the submissions of Counsel, there is nodoubt that the said paragraph 5 has been specifically admitted and sorecorded by Court on 16.6.76 This means that theplaintiff-respondent did do *business for the benefit of the
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PIA Corporation v Yaseen Omar (Bandaranayake. J)
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defendant-appellant since his appointment in August 1971 up to theend of 1974. To do so he must have a place of business where heattended to the work of an airline, for which are needed severalfacilities for the business of taking bookings, transporting passengersand goods by air for fee or reward, meeting prospective passengers,selling tickets, accepting money and keeping same in safe custodyetc. In my view a place where all of these things happen is the place orestablishment where the transaction of this business is located andtherefore comes within the definition of 'office’ in s. 68 (1) (a) of Cap.129. LEC. This is a reasonable, logical and indeed a legitimateinference arising from the admissions and I adopt it. Appellant'sCounsel's submission, as is also averred in paragraph 2 of the answer,that that place is only the place of business of 'Travemars' who wereindeed the agents for P.I.A. as admitted is too technical and narrow aview and is unacceptable. So this place of business being an 'office' asenvisaged by the Shop Act brings it within the schedule ofemployments in Act 45 of 1971, and.brings the plaintiff'semployment within the definition of 'scheduled employment' insection 19 of the Act.
The further question whether the plaintiff is a 'workman' under Act45 of 1971 would depend on whether the provisions of s. 3 apply tothis case.
I have already referred to the definition of 'workman' in s. 19.Viewed purely in the context of the definition of 'workman' in s. 48 ofthe Industrial Disputes Act, there is no doubt that the plaintiff comeswithin that definition as X1 which is pleaded and admitted by thedefendant-appellant shows that the plaintiff was under a contract ofservice with the defendant-Corporation and X2 the notice oftermination confirms it. Further, issue 2 raised by the defendant addsto the confirmation of a contract of service in that it raises an issue asto whether the dismissal was wrongful. To raise such an issue theremust be an acceptance that there was a contract of service in the firstinstance. This matter is discussed in view of the submission ofCounsel that in any event XI and X2 were not formally led in evidence.It is apparent that their contents have been adopted by a party to thesuit so that the documents are in evidence..
Even though the plaintiff is considered as a person who satisfied thedefinition of 'workman' under the Industrial Disputes Act still thequestion remains whether the plaintiff is a 'workman' under Act 45 of
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1971 or whether the provisions of s. 3 of the Act of 1971 apply tothis case which would have the effect of taking thedefendent-appellant out of the definition of ’employer' under the Act,or to put it in another way. place the plaintiff outside the definition of'workman' to which the Act applies. What then is the material beforethe Court on this aspect of the case ? The plaintiff has averred that hewas employed by the defendant and that his subsequent dismissalwas illegal in violation of the terms of s. 2 (1) of Act 45 of1971 – vide paragraphs 4, 5 and 9 of the plaint and thus invokes theprotection of the Act. This does not mean that there is a presumptionthat the plaintiff is a person whose employment is protected under theAct. But it is my view that there need not be a reference in the plaint toexemption from the operation of s. 3 of the Act or specific referenceto exemption from any one or more of the cases or circumstances setout in s. 3 (1) (a) to which cases or circumstances the otherprovisions of the Act do not apply. So. when in the instant case,paragraph 9 of the plaint averred that the termination of the plaintiff'semployment was illegal, the plaintiff was invoking the general purposeand sense and protection of the Act and it is implicit that he claimedexemption from the operation of s. 3.
In the setting of the Act. s. 3 is an exemption or proviso to the otherprovisions contained therein. The question therefore of the burden ofproof arises. A crucial point is whether the element in question (i.e.)the provisions of s. 3 is part of the general sense and purpose of theAct or whether it pertains to a defence the benefit of which is claimedby a defendant. An examination of the schedule in the Act makes itclear that the Act was intended to apply to employment in the largerorganizations such as Trades for which Wages Boards have beenestablished, to shops & offices to which Cap. 129 LEC applied and toFactories. The definitions of 'workman' is related to Industrial Disputesunder that Actin other words, to private sector employeesengaging in commerce and industry on a larger scale, whose workmenare brought under the scrutiny of the Commissioner of Labour andtheir employment thus protected. The protection of employees ofsmaller organizations are not envisaged by the Act. The Act applies ina broader context. Now, in the case of the larger organizations it isunreasonable to expect an employee to know for example, either thenumber of 'workmen' in the institution during a particular period (itmay be hundreds) or the source of the Capital or any proportion of theCapital of the Institution. These examples are taken from s. 3. Such
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information would be known to the employer and generally not knownto a 'workman'. In this situation how is one to construe the statute ?Peculiar knowledge of the employer is a pragmatic consideration inthis context when constructing an intelligible principle in this area ofthe law. So, in interpreting the provisions of the statute (i.e.) s. 3bearing in mind the scheme of the Act and also bearing in mind thepragmatic consideration of peculiar knowledge it is seen that s. 3 isnot integral to such scheme. Protecting employees of smallerindustries and trades is not intended by the Act and is not part of itsgeneral sense and purpose. Such employees are not entitled to theprotection of their employment under the Act. The rule of pleading isalso that if no answer is filed the Court will proceed ex parte.
In the result, the exemption clause must be claimed ; resistance tothe controls placed on an employer by the Act must be pleaded ands. 3 invoked as a defence under the Act and proved by the employer.Has this been done ? That the number of employees is less than 15has been pleaded thus attracting the attention of s. 3. This then raisednew matter in the pleadings. There was thereafter no replication. Thedecision of 3 Judges in the case of Lokuhamy v. Sirimala (supra)decided that in such event, every material allegation shall be deemedto have been denied and the burden of proof of such new matter shalllie on the party asserting it. I have considered the cases cited and thesubmissions made on this aspect of the case and in my view the ruleof procedure set out above is to be preferred. In the result, both as ageneral principle affecting the burden of proof and as a rule ofprocedure the defendant-appellant should have proved the exception.The absence of replication also does not mean admission either – videFernando v. The Ceylon Tea Plantation Co. (supra) There must beproof of this fact before exemption can be claimed. There is in fact noadmission. Hence evidence of this fact, if it were so, should have beenled to prove it. This has not been done. The framing of an issue on theburden of proof does not arise. The defendant-appellant has failed toprove exemption and he is therefore not entitled to the reliefs claimed.In the absence of anything to the contrary, the plaintiff would beentitled to the protection of the Act as a 'workman' in a 'scheduledemployment'. The plaintiff is entitled to a declaration that hisemployment with the defendant corporation is protected by Act 45 of1971 and that the purported termination of his services was illegal,void and of no effect whatsoever and in law has continueduninterruptedly. Issue 2 framed at the trial was wholly irrelevant.
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There remains the appeal against the District Judge's order refusinga permanent injunction to be considered. A relevant consideration inthis context-is the lapse of time which is relevant to the competinginterests of social policy and persona! rights. It was submitted onbehalf of the plaintiff-respondent that an illegal act amounting to theviolation of a statute gives one a remedy as of right and not merely inequity and the Court must restore the status quo. But a decade hasgone by since the event complained of. An injunction would frustratethe powers of the Commissioner under the Act The District Judge'srefusal to grant an injunction on the ground that t ought not to issue toenforce an agreement of personal service in a contract of master andservant is viewed with approval. I am of the view that the cross-appealof the plaintiff-respondent seeking a permanent injunction up-jn ,'ic-defendant-appellant restraining him as prayed ‘or shoulu rut begranted. It is accordingly refused and the cross-appeal of theplaintiff-respondent dismissed without costs.
For the reasons given the appeal of the defendant-appellant againstthe order of the learned District Judge ;s dismissed. Theplaintiff-respondent is awarded costs of this appeal.
B. E. DE SILVA, J. – I agree.
Appeal dismissed.
Cross-appeal dismissed.