023-SLLR-SLLR-2005-V-3-PRADEEP-vs.-SKYSPAN-ASIA-PVT-LTD-AND-OTHERS.pdf
CA
Pradeep vs
Skyspan Asia (pvt) Ltd and Others
121
PRADEEPvs
SKYSPAN ASIA (PVT) LTD AND OTHERSCOURT OF APPEALIMAM, J. ANDSRISKANDARAJAH, J.
CA 2045/2003 (WRIT)
MAY 19,2005
Writ of certiorari – Termination of Employment of Workmen (Special Provisions)Act, No. 45 of 1971-Application under section 5 and 6 – Termination ofemployees while the application to terminate was pending before theCommissioner – Legality 7 Employer terminating the services of the employeewithout permission from Commissioner of Labour -Could compensation beawarded 7 – Difference between a section 5 order and a section 6 order -termination retrospectively.
The 1st respondent employer made an application seeking permissionfrom the Commissioner to terminate the services of the employees ; while theinquiry was pending the wages of the employee were stopped. The employeescomplained that their services were terminated without permission of theCommissioner. This was inquired into and after inquiry, the Commissionerafter holding that the services of the employees were terminated without consentof the employees and further as the employer had not obtained prior approvalof the Commissioner, awarded compensation to the employees.
The petitioners sought to quash the said order and a direction to the'Commissioner to make an order under section 6 against the 1st respondentemployer.
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HELD:
The Commissioner had held that the termination of the employmentof the employees is null and void ; if so then the employees are deemedto be in service.
The Commissioner's power under section 6 is to specify a date for theemployees to report for work and direct the employer to continue toemploy the workmen with effect from that date in the same capacity inwhich the workmen were employed prior to such termination and topay the workmen their wages and all other benefits which the workmenwould have otherwise received if their services had not been soterminated.
Construction of section 6 read with section 5 does not empower theCommissioner to grant permission to the employer to terminate theservices of the employee and to order compensation.
■ (4) The Commissioner has no reason to order compensation in lieu ofordering the employer to continue to employ the workman.
The 1st respondent had made an application seeking permission toterminate the services of the employees under section 2 (b), and itappears that the Commissioner had amalgamated the section 2 (b)application and the complaint made by the employees under section6 and had made the impugned order.
HELD FURTHER:
The Commissioner had by the impugned order granted approval toterminate the employment of the workmen petitioners retrospectivelywhich the Commissioner is not empowered to do.
There is no provision in the Act to deal with a situation where theemployee has become incapable of assuming duties due to variouscircumstances at the time of the determination of the Commir nionerthat the employer had terminated the services of the emplc ee incontravention of the Act.
APPLICATION for writs in the nature of certiorari/mandamus.
CA
Pradeep vs
Skyspan Asia (pvt) Ltd and Others (Srikandarajah J.)
123
Case referred to:
Eksath Kamkaru Samithiya vs. Commissioner of Labour 2001 2 SriLR 137 at 142 & 155.
Blanka Diamonds (Pvt.) Ltd. vs. Coeme 1996 1 Sri LR 200 at 2005
Lanka Multi Moulds (Pvt.) Ltd. vs. Wimalasena, Commissioner of Labourand others 2003 1 Sri LR 143
S. Sinnathamby with Jayanthy Ganashamoorthy for petitioners.
Gomin Dayasiri with S. Gamage for 1 st respondent.
Sumathi Dharmawardane, State Counsel for 2nd and 3rd respondents.
Cur. adv. vult.
June 22,2005.
SRISKANDARAJAH, J.The Petitioners in this application have sought a writ of certiorari toquash the Order of the 3rd Respondent dated 16.07.2003 and a mandamusdirecting the 3rd Respondent to make an order under section 6 againstthe 1 st Respondent.
The Petitioners and the 4th and 5th Respondents (hereinafter referredto as employees) were employed by the 1st Respondent. The 1stRespondent made an application on 22.11.2002, seeking permission fromthe Commissioner of Labour to terminate the services of the employees.An inquiry was held by the Deputy Commissioner of Labour Daya Senaratne.While the inquiry was pending, the wages of the employees was stoppedby the 1st Respondent from April 2001. The employees complained tothe Commissioner of Labour by letter dated 22.05.2001 P2, that theirservices have been terminated without the permission of the Commissionerin contravention of the provisions of the Termination of Employment ofWorkmen (Special Provisions) Act. The Deputy Commissioner of Labourproceeded to inquire into the complaint of the employees. The DeputyCommissioner after a protracted inquiry on the aforesaid complaint of theemployees made order on 16.07.2003 P11. In his order he has come tothe conclusion that the 1 st Respondent when terminating the services ofthe employees had neither obtained written consent of the workmen nor
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obtained prior approval of the Commissioner of Labour; therefore the 1 stRespondent violated the provisions of the Termination of Employment ofWorkmen (Special Provisions) Act. Thereafter he has proceeded to awardcompensation to the employees calculated on the basis of two-monthsalary for each completed year of services.
Section 5 of the Termination of Employment of Workmen (SpecialProvision) Act, provides ; where an employer terminates the scheduledemployment of a workman in contravention of the provisions of this Act,such termination shall be illegal, null and void, and accordingly shall be ofno effect whatsoever. The Deputy Commissioner in his order P 11 hascome to the conclusion that the 1 st Respondent (Employer) has terminatedthe employment of the employees in contravention of the provisions of thesaid Act. Therefore the termination is illegal, null and void and of no effectwhatsoever. If the termination of the employment of the employees is nulland void then the employees are deemed to be in service. TheCommissioners power under section 6 is to specify a date for the employeesto report for work and to direct the employer to continue to employ theworkmen, with effect from that date in the same capacity in which theworkmen were employed prior to such termination, and to pay the workmentheir wages and all other benefits which the workman would have otherwisereceived if his services had not been so terminated. The construction ofsection 6 read with section 5 does not empower the Commissioner togrant permission to the employer to terminate the services of the employeeand to order for compensation. In Eksath Kamkaru Samithiya vs.Commissioner of Labour^ U. de. Z. Gunawardane, J. observed :
“Section 5 renders any termination of employment in contravention ofthe relevant Act absolutely illegal. And section 6 states that theCommissioner “may order the employer to continue to employ the workmen”in case the termination was in breach of the provisions of the Act. Althoughthe word “may” taken in isolation express permission or liberty, yet thatterm “may” acquires a compulsory force in circumstances where, a dutydevolves on the authority to exercise that power which that authority waspermitted or enabled by the statute to exercise”
U. de. Z. Gunawardane, J held :“The Commissioner will bear in mind, as noted above, that the
duty to reinstate the workmen, as are the other duties i. e. to pay
Pradeep vs
Skyspan Asia (pvt) Ltd and Others (Srikandarajah J.)
125
CA
“wages and other benefits” imposed upon him under section 6 of theAct, is mandatory and compulsory and that there is no option in thematter”
However, there is no provision in the Act to deal with a situation wherethe employee has become incapable of assuming duties due to variouscircumstances at the time of the determination of the Commissioner thatthe employer had terminated the services.of the employee in contraventionof the Act. The Courts have interpreted the word “may order” in section 6 inthese circumstances empowering the Commissioner to order compensationinstead of ordering the employer to continue to employ the workman. InBlanks Diamonds (Pvt) Ltd. vs Coeme at 2005 Senanayake J observed :
"The Commissioner in terms of section 6 of the T. E. Act has a discretionin view of the word used in section 6. The words used are ‘may order’ andnot ‘shall order’. The Legislature in its wisdom had given the Commissionera discretionary power as each case has to depend on various factors andcircumstances. The word ‘may order’ was considered in an unreportedcase the Ceylon Mercantile Union vs Messers Vinitha Limited and theCommissioner of Labour, decided on 29th March, 1976. Tennakoon, C. J.observed “the words in the section are ‘may order’ and not ‘shall order’ thelegislature obviously did not contemplate that in every case of Terminationof Employment without the permission of the Commissioner of Labour, itwould be mandatory on the Commissioner to order re-instatement orcontinuance of employment upon a complaint being made to him undersection 6. “ I am bound by the interpretation given by the Bench of threeJudges of the Supreme Court. In the instant case the 1st Respondentwas an expatriate and his visa was granted for a specific period.Therefore, it is my view the circumstances and facts of each case have tobe considered on its own merits and the Commissioner in thosecircumstances considering section 6 exercised his discretion withoutmaking an order for continuance of service. Therefore I am of the view thatthe submission of the learned Counsel for the Petitioner giving a restrictiveinterpretation to section 6 of the T. E. Act has no merit.” (Emphasis added)
Lanka Multi Moulds (Pvt) Ltd. Vs. Wimalasena, Commissioner of Labourand others3. In this case the 2nd Respondent (the workman) a Britishnational was employed by the appellant company (the employer) on01.09.1992 on contract for a period of 3 years. The employer terminated
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the employment of the workman with effect from 30.07.1994. On 22.11.1995,the Commissioner ordered re-instatement of the workman with effect from
with back wages for 17 1/2 months from 30.07.1994 to
a sum of Rs. 3,533,750. The Court of Appeal affirmed theorder that the termination of employment is illegal for want of prior consentof the workmen under section 2(1) (a) of the Termination of Employment ofWorkmen (Special Provisions) Act, No. 45 of 1971. The court quashed theorder for re-instatement and reduced back wages to 13 months (The balanceperiod of the contract of three years).
Fernando, J. held in the above case :"I hold that “may” in section 6 confers a discretion on theCommissioner; that ‘and” must be interpreted disjunctively ; andthat the Commissioner had the power to order payment ofwages and benefits for the balance period of the 2ndRespondents contract without making an order for re-instatement. The Court of Appeal was therefore entitled to ordersuch payments when setting aside the order for re-instatement.”(Emphasis added)
In the instant case, the Commissioner has no reason to order forcompensation in lieu of ordering the employer to continue to employ theworkmen. As the workmen are not incapacitated in any way that deprivesthe Commissioner to order for continuous employment, the Commissionershould have ordered for continuous employment with wages and otherbenefits which the workmen would have otherwise received if their serviceshad not been so terminated.
It appears from the proceedings that the 1 st Respondent had made anapplication dated 22.11.2002, seeking permission from the Commissionerof Labour to terminate the services of the employees under section 2 (b) ofthe Termination of Employment of Workmen (Special Provisions) Act, No.45 of 1971. An inquiry was commenced in respect of this application butin the meantime, the 1st Respondent terminated the services of theworkmen. On the complaint of the workmen that their services has beenterminated in violation of the said Act, the Commissioner proceeded toinquire into that complaint under section 6 and made the impugned orderdated 16.07.2003. In this order he has observed “due to non availability oforders the company has reached a stage of running at a loss. Thereforewithout re-employing the workmen compensation has to be paid to them”.The Commissioner could have arrived at this conclusion when grantingpermission to terminate the employment of the workmen under section2(b) of the said Act. Under section 2(b) the Commissioner could grantpermission to terminate the services of workmen and the termination would
Leelawalhie vs
Abeykoon and Others
127
CA
have to come into effect only after the date of that order (grantingpermission) and not retrospectively.
It appears'that the Commissioner has amalgamated section 2(b)application made by the 1 st Respondent on 22.11.2002 and the complaintmade by the employees under section 6 on 22.05.2001 and had made anorder dated 16.07.2003, P11. By this order the Commissioner has grantedapproval to terminate the employment of the workmen (Petitioners)retrospectively which the Commissioner is not empowered to do.
Hence, this court issues a writ of certiorari to quash the order dated
marked P11 and issues an order of mandamus directing the2nd and 3rd Respondents to grant permission to the 1st Respondent toterminate the services of the petitioners from a prospective specified dateand order the 1st respondent to pay wages and other benefits up to thesaid date and to pay compensation as determined by the Commissionerin respect of the termination. This Court allows this application with outcosts.
IMAM, J. -1 agree.
Application allowed.