RANAWEERA v. MAHAWELI AUTHORITY OF SRI LANKA AND ANOTHER

041-SLLR-SLLR-2004-V-2-RANAWEERA-v.-MAHAWELI-AUTHORITY-OF-SRI-LANKA-AND-ANOTHER.pdf


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RANAWEERAv
MAHAWELI AUTHORITY OF SRI LANKAAND ANOTHERCOURT OF APPEAL
SALEEM MARSOOF, P.C., J., P/CA
SRIPAVAN, J.
CA.APPLI. NO. 1326/02MAY 18, 2004
Writ of Mandamus – Enforce Order of re-instatement made by a LabourTribunal and confirmed by the High Court – Does writ lie? Alternativeremedy – Industrial Disputes Act – Section 31(c), section 40 1 (q),section 43, section 43(A)3, section 44B – Court of Appeal (AppellateProcedure) Rules 1990 – Rule 3(4) N (i), 3(14) – Non compliance -When should the objection be taken ?
QA Ranaweera v Mahaweli Authority of Sri Lanka and another 347
(Marsoof, J. (P/CA) )
Held:
The Industrial Disputes Act has provided an effective procedure for theenforcement of Orders of Labour Tribunals. The non compliance of anorder made by a Labour Tribunals is declared to be an offence undersection 40(1) (q).
The writ of Mandamus would not be available when there is an effectivealternative remedy.
Per Marsoof, J. (P G/A)
The petitioner in his Counter Affidavit pointed o'ut that the respondentshave failed to comply with Rule 3(4) (b) (1). I am of the view that thepetitioner should have in the first instance invited the attention of theCourt to the alleged non-compliance of the Rules and got the matterlisted for an Order of Court as contemplated under Rule 3(A)….by filingCounter affidavits, the petitioner has waived the right to take objection tothe non-compliance of the Rules.
Per Marsoof, J. (P C/A)
‘The petitioner has failed to produce evidence to show that he haddemanded compliance with the Order of the Labour Tribunal and theHigh Court from the 1st respondent Authority – this by itself is sufficientto disentitle the petitioner to any relief prayed for by him.”
The petitioner has failed to establish that there is any duty of a PublicNature owed by the respondents to comply with the Order of the LabourTribunal.
AN APPLICATION for a writ of Mandamus .
Dr. Jayatissa de Costa with D. Epitawala and C. Siriwansa for the petitioner.
M.N.B. Fernando, S.S.C., for respondents.
October 18,2004
SALEEM MARSOOF, J. P.C. (P/ C/A)
In this application the petitioner, who has been in the service ofthe 1st respondent Mahaweli Authority of Sri Lanka since 1978,seeks a mandate in the nature of writ of mandamus to compel the1st and 2nd respondents to enforce the order of reinstatement
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made by a Labour Tribunal and confirmed with a slight adjustmentby the provincial High Court of the Central Province.
The facts briefly are as follows : The petitioner joined the 1strespondent Authority as a Stores Assistant on 1st September 1978and was promoted as a Store Keeper Grade III with effect from 1stJanuary 1982. The petitioner claims that his services were unjustlyterminated on 30th October 1986, and at the time his services wereterminated he was serving in the capacity of a Store Keeper GradeIII and was drawing a monthly salary of Rs. 1,250 /- The petitionerinstituted an application in terms of section 31 (B) (1) of theIndustrial Disputes Act No. 43 of 1950 against his employer in theLabour Tribunal of Kandy claiming that his services have beenunjustly terminated by his employer. He complained that theaforesaid termination of his services was wrongful and unjust, andsought reinstatement in services with back wages upto the date ofreinstatement, payment of EPF and ETF dues, incremental credit,promotions and any salary revisions during the period oftermination and other fringe benefits.
The petitioner states that the learned President of the LabourTribunal delivered her order dated 26th March 1998 in favour of thepetitioner holding inter alia that the services of the petitioner wereunjustly and unreasonably terminated by his employer and hadordered the reinstatement of the petitioner effective from 28th April1998 with back wages for 84 months for the period that thepetitioner was out of employment. The petitioner further states thatbeing aggrieved by the quantum of the aforesaid award (Salary of84 months at the rate of Rs. 1250/- per month), the petitionerappealed to the Provincial High Court of the Central Provinceholden in Kandy on the ground inter alia that:-
the quantum of the aforesaid award was unlawful and contraryto law;
the aforesaid relief in relation to quantum is against theevidence led;
the learned President has misdirected herself with regard tothe evidence led;
the learned President has erred in law; and
CA
Ranaweera v Mahaweli Authority of Sri Lanka and another
(Marsoof, J. (P/CA) )
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the award in relation to the quantum was not a just andequitable award in terms of section 31 (c) (1) of the IndustrialDisputes Act.
The petitioner states that the High Court made its order on 21stFebruary 2002 in favour of the petitioner varying the order of the[earned President of the Labour Tribunal of Kandy only to the extentthat the petitioner was held entitled to back wages of 138 monthsi.e. Rs. 172,500/- and it was further held that subject to thisadjustment, the other orders made by the learned President of theLabour Tribunal Kandy would stand. The petitioner states that theeffect of the order of the said learned President of the LabourTribunal and the High Court of the Central Province was thereinstatement of the petitioner with back wages for 138 monthswhich tantamount to the reinstatement of the petitioner without anybreak in service.
The petitioner states that he is entitled to the undermentionedpayments if the order of the learned President of the LabourTribunal of Kandy and the Judgement of the Hon. High Court Judgeof Kandy are correctly interpreted considering the changes thathave taken place during the period in which the petitioner was outof employment:-
Payment of E.P.F and E.T.F since 30th October 1986.
Payment of lost annual salary increments,since 30th October1986 to date.
Payment of all the allowances paid such as professionalallowance,special cost of living allowances and nonrecurrence costs of living allowance etc.
Payment of Rs. 350,000/- as the lost compensation based onthe retrenchment scheme which came into force in November1997 during such time the petitioner was out of employment.
Payment on the basis of differences in salary andcompensation based on salary which is Rs.1,170,630/-
The main complaint of the petitioner is that although the HighCourt of the Central Province holden in Kandy pronounced itsjudgement on 21st February 2002, the 1st respondent Authorityhas failed and neglected to give effect to same and thereby failed
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and neglected to reinstate the petitioner and to effect the paymentsenumerated above. The petitioner claims that the failure of the 1strespondent Authority to carry out the order of the learned Presidentof the Labour Tribunal of Kandy and the judgement of the HighCourt of the Central Province holden in Kandy is arbitrary,capricious, unlawful, unreasonable and unjustifiable and hadcaused prejudice to the petitioner.
The 1st and 2nd respondents did not file a Statement ofObjections but instead filed only the affidavit of the 2nd respondent,who is the Director General of the 1st respondent MahaweliAuthority of Sri Lanka by way of objections. It is necessary tomention at the outset that the petitioner has in Paragraph 3 of hiscounter affidavit pointed out that the respondents have failed tocomply with Rule 3 (4)(b)(i) of the Court of Appeal (AppellateProcedure) Rules 1990, and therefore the affidavit filed by the 2ndrespondent by way of objections should be rejected. I am inclinedto the view that the petitioner should have in the first instanceinvited the attention of the Court to the alleged non-compliance withthe rules and got the matter listed for an Order of Court ascontemplated by Rule 3(14) of the aforesaid Rules. The said rule isquoted below:
"Where the parties fail to comply with the requirements setout in the preceding rules, the Registrar shall without anydelay, list such application for an Order of Court."
The objective of this Rule appears to be to give an opportunityto a party in default to take steps to comply with the rules of Court.In my view of the petitioner should have objected to the alleged"Objections" filed by the respondents by way of motion and had thematter referred for an Order of Court. Instead, the petitioner haschosen to file counter affidavit wherein he taken up the question ofnon-compliance with Rules in the said counter affidavit. In terms ofRule 3 (4)(b)(i) counter affidavits have to be filed by the petitionerwithin 4 weeks of the date of receipt of the Statement of Objection,unless a different date is fixed by Court which was what happenedin this case. By filing counter affidavits the petitioner has waived theright to take objection to the non-compliance of the rules by therespondents.
QA Ranaweera v Mahaweli Authority of Sri Lanka and another351
(Marsoof, J. (P/CA) )
In paragraph 4 of the counter affidavit of the petitioner a furtherobjection has been taken to the affidavit of the 2nd respondents onthe basis that the date of affirmation is not set out in the Jurat, andthe petitioner has annexed marked C (1) a copy of the affidavit ofthe 2nd respondent served on the petitioner in which the date ofaffirmation is in clearly left in blank. In the original of the affidavitavailable in the docket the date of attestation appears in. the Juratas 30th June 2003. However on a comparison of the copy of theaffidavit of the 2nd respondent served on the petitioner with theoriginal in the docket, it appears that what has been served on thepetitioner is a photocopy of the original affidavit of the 2ndrespondent found in the docket, which raises doubts as regardswhether the figure “30” had been inserted in the original of the saidaffidavit available in the docket after the same was filed in Court inan unscrupulous manner. The ink used to insert the figure “30”appears to the naked eye to be different from the ink which the 2ndrespondent and the Justice of the Peace had used to sign on theaffidavit. In the circumstances, I am inclined to uphold the objectiontaken by the petitioner to the said affidavit and disregard itscontents.
Having carefully considered the application made by thepetitioner to this court without taking into consideration any of theaverments contained in the so called 'Objection' of therespondents, I have come to the conclusion that the petitioner is notentitled to the reliefs prayed for by him. The petitioner has soughta writ of mandamus with a view of enforcing the order of theLabour Tribunal as modified by the order of the Provincial HighCourt. Mandamus simply does not lie to enforce an order of theLabour Tribunal or an order made on appeal by the Provincial HighCourt.
The Industrial Disputes Act has provided an effective procedurefor the enforcement of orders of Labour Tribunals. The non-compliance of an order made by a Labour Tribunal is declared tobe an offence under section 40 (1) (q) of the said Act. Furthermoreany money due to any employee may be recovered from theemployer in terms of section 43 (A) of the Act. The writ ofmandamus would not be available where there is an effectivealternative remedy. In any event the petitioner in this case has
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failed to produce any evidence to show that he had demandedcompliance with order of the Labour Tribunal and the ProvincialHigh Court from the 1st respondent authority. This by itself issufficient to disentitle the petitioner to any relief prayed for by him.
In this context, it is necessary to quote from H.W.R. Wade andC.F Forsyth, Administrative Law, 8th Edition, page 615 in which theauthors have succinctly stated the law in the following words:-
“It has been said to be an ‘imperative rule’ that an applicant formandamus must have first made an express demand to thedefaulting authority, calling upon it to perform its duty, and thatthe authority must have refused. But these formalities areusually fulfilled by the conduct of the parties prior to theapplication, and refusal to perform the duty is readily impliedfrom conduct. The substantial requirement is that the publicauthority should have been clearly informed as to what theapplicant expect it to do, so it might decide at its own optionwhether to act or not.”
As it is abundantly clear from the Journal Entries in this casedated 26th February 2003 and 24th March 2003, the petitioner wasoffered reinstatement even after the filing of this application, and hehas chosen not to go back to work with the 1st respondent’sauthority. Furthermore it is to be noted that the public duty that maybe enforced by mandamus, should be owed by the respondents.The petitioner has failed to establish that there is any duty of apublic nature owed by the respondents in this case to comply withthe order of the Labour Tribunal as modified by the judgement ofthe Provincial High Court. In fact, it is apparent from section 43 A(3)and 44 B of the Industrial Disputes Act that the responsibility ofrecovering any money due to a workman from an employer is caston the Commissioner of Labour.
For the Foregoing reasons, I am inclined to dismiss theapplication of the petitioner with costs fixed at Rs. 5000/- payableto the 1st respondent.
SRIPAVAN, J. – I agree.
Application dismissed.