059-NLR-NLR-V-77-R.-P.-DHARMADASA-Appellant-and-B.-PETER-PERERA-Respondent.pdf
DEHERAGODA, J.—Saravanai v. O. I. C., Police Station, Port
286
1973Present:Rajaratnam, J.
R. P. DHARMADASA, Appellant, and B. PETER PERERA,
Respondent
S. C. 237/71—Labour Tribunal 4/M/972
Industrial Disputes Act—Section 31 B (1) (a)—Application for reliefthereunder by a discharged clerk—Employer carrying on an illegalbusiness—Whether the clerk should be refused relief on thatground alone—Considerations applicable in such an inquiry beforea labour tribunal.
When the applicant-appellant, who had worked under therespondent as a clerk for eleven years, sought relief under section31 B (1) (a) of the Industrial Disputes Act upon the termination ofhis services, his application was dismissed by the labour tribunalsolely on the ground that the respondent (employer) was carryingon an illegal business, namely the acceptance of bettings on
horse-racing.
(1967) y'2 N. L. P. 273.
280
RAJARATK'All, J. Uharmadasa r. l-’crutu
Held, that the applicant was entitled to be heard even if he knewthat his master was carrying on an illegal business, unless he wasan intentional abettor in the commission of the offence of illegalbetting. In such an inquiry before a labour tribunal the main testis whether the servant contracted to do something unlawful withhis master.
A. PPEAL from an order of a Labour Tribunal.
Lalith Jayawickrema, for the applicant-appellant.
N. D. Jayasuriya, with Neville Joseph, for the employer-respondent.
Cur. adv. vult.
January 15, 1973. Rajaratnam, J.—
The President in his order dismissing the applicant-appellant’sapplication for relief and/or redress on the termination of hisservices under Section 31B (1) (a) of the Industrial DisputesAct states that the said applicant has worked under the respon-dent as a clerk for eleven years, but as the respondent’s businessbeing the acceptance of bettings on horse racing and since thisis an illegal business, the applicant is not entitled to any relief.Whatever the President meant, he concludes the order with thisobservation “ justice could not be meted out by an illegal act ”.
He has not paused however to consider what type of work theapplicant was doing in this business and whether persons doingan illegal business in every case and always are exempt fromtheir liabilities towards their employees, and therefore are in amore favourable position than employers who carry on a legalbusiness. There was no evidence led, and the order was madewithout an inquiry as required by the Act.
Learned Counsel for the respondent submitted that the saidorder is according to the law as the applicant’s contract ofservice was with the respondent to work in an illegal businessconcern, and therefore the applicant is not entitled to any benefitwhether it be salary in view of notice or compensation in lieuof re-instatement. He has referred me to the Law of Master andServant by Scoble (1956 Edition) which states “it is essentialthat the purpose or object of an agreement of service should beone recognised as enforceable in law, that is to say it shouldnot be illegal or contra bonos mores. There can, therefore, beno effective contracts for domestic service between the owner ofa gambling den and his cook or maid employed therein if thecook or maid was aware of the illegal objects of their employerand could thus be said to be associated with him in his unlawful
RAJARATNAJVI, J.—Dharmadasa v. Percra
287
purpose. Thus in Pearce v. Brooks. 1866, 1 Ex. 213, a jobmasterfailed in his action against a prostitute for the amount of thehire of a cab, where he knew that she was using the cab in herbusiness and also what her prefession was. In regard to acontract locatio operis however the position may be said to bedifferent for a laundress is entitled to sue a prostitute for theamount of her charge in washing the latter’s clothes (Lloyd v.Johnson, 1798 I.B. and P. 340).” With great respect I find itdifficult to agree with the decisions in the above cases. Both thecab driver and the laundress were respectively engaged in theirlawful business of a cab driver and a laundress and there appearsto be no justification for either of them to be deprived of theirdues when they contract with prostitutes and keepers of gamblingdens. If these decisions are correct, if what has been stated aboveapplies to every case, then the keeper of a gambling den willenjoy the services of cooks and maids free of charge unless hechooses to pay them and prostitutes can have free rides in cabswhen they are about their business although they are obligedto pay the laundress for washing their clothes. I do not think thelaw ever intended to make life so much easier for those whocontravened the laws, and give them the immunity of diplomats.
Legally the main test is whether the servant contracted to dosomething unlawful with his master. Hiring cabs, washingclothes, cooking meals, sweeping floors, etc. are not unlawfulengagements and are not contra bonos mores but on the otherhand are useful engagements in a society. The law will look intoeach case on its own facts. For instance a taxi driver who hireshis taxi and thereby knowingly assists a murderer or burglar isengaged in an unlawful business and will not be able to sue forhis dues. In each case it will depend whether the servant hasentered into the pale of the offence, as an intentional abettorin the commission of the offence, under an agreement.
In the case of Martin v. d’Almeida' 1936 Appellate Division(South Africa), the Court refused to extend the privilege to awage earner of appealing in jorma pauperis for the reason thathe contracted to accept a wage less than the minimum wage laiddown by the law. I find it difficult to agree that this decisionapplies to an application before the Labour Tribunal where thePresident is required by law to make a just and equitable order.In fact a just and equitable order will be against an employerwho contravenes the law to his benefit whereas the servantcontravenes it, if he does, out of necessity and to his detrimentfor the reason that he could not afford the luxury of asking forhis dues under the law. The decision in this case will not applyto Labour Tribunal cases.
1 1936 A. D.
2S8
RAJARATNA1I, J. -Dhirmadasa, v. Percra
The next case cited by learned Counsel for the appellant wasthe case of Rex v. Briusinsky,1 1940 C.P.D. 127. The facts andcircumstances and the law in the case are different and cannotbe applied again to the circumstances of the case under appealfrom a decision of a Labour Tribunal. The decision in the caseof Manoim v. Veneered Furniture Manufactures, * 1934 A.D. 237,was followed in the case of Martin v. d’Almeida referred toearlier. This is a judgment of Wessels C. J. With great respectthe decisions in these cases were on entirely different sets of factsand different statute laws and cannot apply to a decision of aLabour Tribunal which is free to consider facts outside thecontract of service as laid down in the Privy Council decisionin the case of United Engineering Workers’ Union v. Deva-nayagam 69 N.L.R. 289, where Viscount Dilhorne observedthat under the Industrial Disputes Act “ it does not howeverfollow that relief or redress obtainable on an application isobtainable only where a workman has a cause of action or that itis limited to relief or redress in respect of a breach of contractor of an obligation imposed by law.” In my view where aworkman is entitled to relief or redress depending on thecircumstances of each case, under the Industrial Disputes Act,the President will take into consideration whether justice andequity demand that he deserves relief or redress, having dueregard to the facts of each case. I do not think that a clerkengaged in an illegal business who keeps accounts, or a cookwho serves meals to those patronising a brothel should necessarilybe denied of relief and redress, even where they knew that theirmaster was carrying on an illegal business. The question to bealways considered is whether the applicant is so well withinthe pale of the offence as an offender and the offence is suchthat even the necessity for him to have found a means oflivelihood does not wash the dirt off his hands to make himdeserve some relief or redress in a just and equitable order. Inmy view this is the only question to be considered on this pointand not the decisions which relate to legal contracts and legalcauses of action decided by judges in different climes on adifferent set of facts, and not in Tribunals as set up under theIndustrial Disputes Act of our country.
I set aside the order of the President and. I remit the case backto the Labour Tribunal for a full inquiry and order. The applicantwiSl be entitled to costs fixed at Rs. 210.
Case set back for further inquiry. 1
1 (1940) C. P. D. 127.* 1934 A. D. 237.
• (1967) 69 N. L. B. 289.