043-SLLR-SLLR-1982-2-SAVOY-THEATRES-LTD-v.-PARUSELLA.pdf
CA
Savoy Theatres Ltd. i Parusella
753
SAVOY THEATRES LTD.
v.PARUSELLA
COURT OF APPEAL
TAMBIAH. J., AND G.P.S. DE SILVA. J.
CA (SC) 170/78; LT NO. 17/5011;
SEPTEMBER 16, 1982.
Industrial Disputes Act – Application for reinstatement and back wages by dismissedemployee – Wrong person named as respondent — Death of respondent andsubstitution of his heir — Fresh substitution of new party—Jurisdiction – A cquiescence.
The applicant Sled these proceedings against one C.V. de Silva, ManagingDirector of Savoy Theatres Ltd. -where he (the applicant) worked as managerseeking reinstatement and back wages on the ground of unjust termination ofhis services. When proceedings were pending C.V. de Silva died whereupon theapplicant moved and obtained an order substituting C.V. de Silva's daughterMrs. R.P. de Silva. Mrs. R.P. de Silva objected to the substitution. This wasfollowed by the substitution of Savoy Theatres Ltd. as the respondent on theapplication of the applicant. The President of the Labour Tribunal thereafterordered Savoy Theatres Ltd. to pay two years salary as compensation as wellas costs of suit.
Held –
The deceased employer’s obligations to .his employee ends with the death ofemployer. These obligations do not pass to others."
A deceased employer’s heir cannot be substituted in-L.T. proceedings underthe Industrial Disputes Act. On the death of the employer the proceedings willhave to come to an end. – .
The substitution of Savoy Theatres Ltd. and the order for payment ofcompensation against it are without jurisdiction. The want of such jurisdiction isnot cured by acquiescence.
Cases referred to:
Carson Cumberbatch & Co. Ltd. v. Nandasena (1973) 77 Af.L.R.
Arnolda v. Gopalan (1961) 64 N.L.R. 153
The Superintendent, Deeside Estate, Maskeliya v. lllankai Thozhilar Kasakam(1968) 70 N.L.R. 279
The Manager, Ury Group, Passara v. Democratic Worker’s Congress (1968)71 N.L.R. 47
Superintendent, Nakiadeniya Group v. Comelishamy (1968) 71 N.L.R. 142
Winter v. Ceylon Estate Staffs' Union (1973) 76 N.L.R. 263.
'?' C'fc.or v. Almeda (1971) 74 N.L.R. 164
754
Sri Lanka Law Reports
(1982) 2 S L R
APPEAL from order of Labour Tribunal.
P. Nagendra for the respondent-appellant
Nimal Senanayake, S.A., for the applicant-respondent
November 25, 1982TAMBIAH, J.
The applicant-respondent, on 10.6.75, made an application against“C.V, de Silva, Savoy Theatres Ltd., 12, Galle Road, Colombo 6
Employer”, under s.31B of the Industrial Disputes Act, and askedfor re-instatement with back wages. In his application he stated he
. was “employed under the employer abovenamed” since 14.11.1957in the Capacity of a Manager on a monthly salary of Rs. 734/20 permqpjh, He further stated that his services were “terminated by theemployer abovenamed” without any justification.
The said C.V. de Silva, as employer, filed his answer and justifiedthe termination of the workman’s services. He did not say that hewas not the employer. He made two charges against the workman
gross neglect of duty by the workman on 1.1.75. and that on12.5.75. the workman, at a Dispensary in Dehiwela, had abused andhumiliated him in the presence of several persons, without justification.He further stated that he terminated the services of the workmanwith effect from 31.5.75. on the ground of misconduct.
The workman then filed his replication. He denied the charge ofmisconduct and stated, inter alia, that he “accepts that he servedthe respondent (C.V. de Silva) from 1957 to 5.1.75.”
Proceedings before the Labour Tribunal commenced on 2.10.75.The 1st witness called was the said C.V. de Silva. I reproduce portionof his evidence-in-chief-
“Q. Mr. de Silva, are you the Managing Director of SavoyCinemas Ltd.?
A. Yes.
Q. How long was this applicant employed at Savoy Cinemas Ltd.?A. From about 1957. I cannot say exactly.
Q. You terminated his services by letter dated 31st May 1957?
A. Yes.
Q. You maintain that your action of termination of the applicant’sservices is justified?
A. Yes.”
CASavoy Theatres Ltd. v. Parusella (Tambiah, J.)755
The cross-examination of this witness v..as also done on the basisthat the said C.V. de Silva was the workman’s employer. 1 reproducea portion of his evidence under cross-examination-
“Q. Do you admit that the applicant was your employee as faras in 1957?
A. Yes.
Q. Mr. Silva, you have given Mr. Parussella the authority atSavoy Cinema to be in charge of almost everything? •
A. Yes.
Q. For 10 years you kept him as Manager?
A. I could not have helped him.
Q. How long has Mr. Parusella served ycfu?
A. From 1954.”
The cross-examination of the witness was not over and the trialwas postponed for 5.12.75. On this date, the case was put off for23.9.76. for settlement.
On 23.2.76. Mr Shanmuganathan for the workman informed theTribunal that the said C.V. de Silva had died and he moved toamend the caption by substituting the daughter of the deceased, Mrs.R.P. de Silva, in his place. The Tribunal made the following order“Motion is allowed and caption may be amended. Inform thel respondentunder registered cover.” The case was to be called on 18.3.76.
On 18.3.76. an attorney-at-law appeared for the respondent andobjected to the amendment of the caption. The Tribunal then askedhim to make written submission and that it would make a rulingthereafter.
On 16.4.76. the attorney-at-law addressed a letter to the Secretary,Labour Tribunal, on behalf of Mrs. R.P. de Silva, in which he tookup the position that the workman’s application was made'personallyagainst the late C.V. de Silva, and that the application must abateas there is no provision in the Industrial Disputes Act for substitutionof parties in the event of the death of either party to the application.He stated further that if either Savoy Theatres Ltd. or Mrs. R.P.de Silva was substituted in place of, the…deceased C.V. de Silva, theworkman’s application would stand prescribed against the substitutedparty, as the workman’s, services were terminated more than sixmonths prior to the substitution. He asked for an order of dismissalof the workman’s application.
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(1982) 2 S L R.
Counter submissions were filed on behalf of the workman. Theposition taken up was that the employer was Savoy Theatres Ltd.and the late C.V. de Silva was the Managing.Director, and as agent,he can be replaced in the event of death. It was submitted thatproceedings so far were on the basis that Savoy Theatres Ltd. wasthe employer and it referred to the opening question and answer inthe principal evidence of C.V. de Silva which brought out the factsthat he was the Managing Director of Savoy Theatres Ltd. and thatthe workman was employed at Savoy Theatres Ltd. It was furthersubmitted that C.V. de Silva who had died, has been replaced bya new Managing Directress, his daughter Mrs. R.P. de Silva and allthat the workman was seeking to does was to substitute her in hisplace and for the inquiry to proceed against her.
It would appear that no order was made by the Tribunal on thewritten submissions made.
Thereafter on 12.10.1976 the workman filed a motion: I reproduceit in its entirety:-
“In the complaint. filed in the above case I have shown theundermentioned as the respondent:-
C.V. De Silva,
Savoy Theatres,
12, Galle Road, Colombo I
I hereby move that the Hon. Tribunal be pleased to amendthe respondent as-
Savoy Theatres Limited,
12, Galle Road, Colombo 6,
since the name of the then Director has been inadvertentlygiven here, and I state that the name of the lawful employerunder whom I was serving has been given as “Savoy TheatresLimited” and that Mr. C.V: De Silva is not among the livingat present.”
The Tribunal, on 25.4.77. allowed the motion'to amerid the captionand made order as follows- “I allow the substitution of the name‘Savoy Theatres Ltd.’ for the name ‘C.V. de Silva’.” The attomey-at-lawfor the respondent then moved for a date as he was entrusted withthe case only recently, and the inquiry was put off.
After the substitution of Savoy Theatres Ltd., two more witnessesgave evidence for the respondent, after which the applicant-workm?:*
CASavoy Theatres Ltd. v. Parusella (Tamhiah. J.)757
gave evidence. He stated that he joined Savoy Theatres Ltd. in 1957and after learning work for three months, he was appointed Manager.The Managing Director of the Company at that time was C.V.. deSilva and he was also the Managing Director at the time his serviceswere terminated. He asked the Managing Director for a letter ofappointment and was told there was no necessity for a letter; hewas asked to function as Manager and C.V. de Silva told him thathe was the Managing Director. He admitted his'original applicatiahwas against C.V. de Silva and cannot assign any reason for hisdismissal from service by C.V. de Silva.'' ’’
In regard to the charge of neglect of duty on 1.1.75. by leaving,the work place without permission, the workman admitted leaving,the work place without permission; his defence was that he suddenlytook ill and he supported this position by a telegram.(Rl) requestingleave because of ill-health and a medical certificate (R5). The Presidentof the Labour Tribunal, while accepting the workman’s evidenceregarding a sudden ailment, however considered it a serious lapseon his part in failing to inform the employer before he left the workplace and found him guilty of neglect of duty on that date.
In regard to the abuse of C.V. de Silva on 12.5.75. at the dispensary,the President while accepting the employer’s version that there hadbeen an exchange of words at the dispensary and while censoringthe conduct of the workman, holds that C.V. de Silva had provokedthe workman by his failure to make payment in accordance with anagreement reached at the Labour Department. He considered this amitigatory circumstance. He further took the view that the workmanhad not been given his due place as Manager at the work place andhad been stripped of important functions which were allocated tothe Cashier, and that this past treatment of the workman hadcontributed in no small measure to the workman’s misconduct. Whileholding that there was neglect of duty on 1.1.75. and that theworkman was guilty of misconduct on 12.5.75. which would underminediscipline at the work place, yet on account of mitigatory circumstances,he held the termination was unjustified, and ordered two years salaryamounting to Rs. 17,616/- as compensation and Rs. 400/-. as costs.
On the facts, 1 am not disposed to interfere with the findingsmade by the President of the Labour Tribunal. It seems to me thathe has ordered cpmpensation on the ground that, having regard tothe mitigatory circumstances, dismissal was too.harsh a punishment.The learned attorney-at-law, however, raised a point of law. He
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(1982) 2 S L R.
submitted that the order made by the President that the proceedingsin the case should continue against the respondent-appellant on thedeath of C.V. de Silva, is wrong, in law. Hence the order that SavoyTheati^s. Ltd. should pay compensation to the workman is one madewithout jurisdiction. I am inclined to uphold this submission.
The workman named C.V. de Silva as his employer, in hisapplication for relief. C.V. de Silva filed answer as employer. Theproceedings, till C.V. de Silva died, were, conducted on the basis:that he was the employer. Learned Senior Attorney, however, referredus to the evidence of C.V. de Silva where he admitted that he wasthe Managing Director of Savoy Theatres Ltd. He also referred usto the; answer filed by him, which is headed “Savoy Theatres Ltd.”;the address of the registered office is also' given. The ManagingDirector is stated to be C.V. de Silva. I also find that the telegram(Rl) sent by the workman requesting leave was addressed to theManaging Director. The show cause letter (R2) does not have thewriter’s name,"but it is C.V. de Silva’s evidence that it was he whosent the letter; thie letter by the workman showing cause (R3) wasaddressed to the Managing Director. The letter (R5) asking theworkman to.,attend an inquiry and setting out the charges does notshow whq(wrote it; it is C.V. de Silva’s evidence that he sent it.The letter (R6) amending one of the charges has been signed by“C.V. de Silva, Managing Director." The workman’s letter (R8)threatening legal action was addressed to the Managing Director.The letter terminating the workman’s services (R9) does not havethe sender’s name; C.V. de Silva stated that he sent it. The letter(RIO) by the workman was addressed to the Managing Director andwas replied to by “C.V. de Silva,' Managing Director”.
The definition of “Employer” in s. 48 of the Industrial DisputesAct contains three categories of employers. The. workman selectedand designated “C.V. de Silva, Savoy Theatres Ltd.” as his employer,in his application to the Tribunal for relief. It was therefore anapplication for relief against C.V. de Silva, personally. Even if theapplication for relief was made against “C.V. de Silva, ManagingDirector, Savoy Theatres Ltd.”, it seems to me, the position wouldnot have altered; the application would still be one made againsthim personally and if he were alive, any order granting relief wouldhave made C.V. de Silva personally liable. As was pointed out byTennekoon, J. in Carson Cumberbatch & Co. Ltd. v. Nandasena (1)the person referred to as a person employing a workman in each ofthe three limbs of the definition, of ‘Employer’ is intended to refer
CA
Savoy Theatres Ltd. v. Parusella (Tambiah. J.)
759
to a person who is under contractual obligation * to the workman.Even' an agent can render himself liable by personally entering; into,a contract of employment.
In Arnolda v. Gopalan (2) the Workman claimed wages, compensationand gratuity from the widow’of the employer, WHb’WaV dead'at'the’time of the application. At the inquiry , the" widow “agreed to ’pay a‘certain sum of money to the'wofkfnaiff Sn bfehalf,>6f !fhe'estate’ofthe deceased employer, and the Tribunaf'&tdetetf the Widow to paythe agreed sum. Proceedings were cbmWiehcfcdJ!ih ‘the Magistrate'sCourt and the Magistrate ordered'the widow to pay the said amount.The Supreme-Court set aside the, .,order.-of the Magistrate,- om theground1 – that, the Tribunal > • had> Wio 'jurisdictions to make- -an ordercompelling, the -widow > of the-deceased employer,- to pay:, the claim:
of’the= Workman;irii b>;.; r«..
' Tambfah. i:1 observed" (pgk/ ‘ t56, f57)-
i.^‘:I ;*A»;……>. a,
“The scope and ambit of the amended Industrial Disputes Actis to give relief ofH rddfess" to a Workman who ‘ is"ih a position, to make‘an application before the Labour Tribunal against'his1 eihpIOyer or ex-e'niployer who is alive at the time Of theapplication. The Labour Tribunal derives its jurisdiction ffo'rrithe amended Industrial Disputes ACt. Its powers, aS Well asitsjurisdiction, has to' be looked fof within the four* corners bf thisstatute and liability under this statute,‘- ‘therefore; 'cannot beextended to a widow of a deceased ;;ehapldyer,'tvfid is ’broughtbefore the Labour Tribunal and against whonV' relief is soughtfor a liability incurred by her late husband.ilThe cOufiSel fof the’ respondent was unable to refer tne to 'aViy ’pi-OViSibfi ih ^the1 ’amended Industrial Disputes Act which ChaPles ah' ernplbyee tomake an application of this nature agaihS't “the ’ Widow of a
deceased employer.” “It' iS“sigWiff&ant
that the Industrial Disputes Act does not ■impose^any.iliabiHtyon the executor, personal representative xar theiexecator de sontort of a deceased person for his dettfs- qr^liabilitiesi[..
' The effect of the decision- in' Amo/dtf <5i!chsP'(2y:is''!that dLaibciurTribunal has no jurisdiction to’make an ofder'agafinstan employerwho has died before proceedings have coirtmericdd -before it.TfredeceasedemptoyefS2’obligation or liability endSJ!&ith ‘His ’death?'itdoes not-pass’oh to others.- . ■
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(1982) 2 S.L.R.
It appears to me that the position would be the same if theemployer has died during the pendency of the proceedings beforethe Labour Tribunal. So that, whether the employer died beforeproceedings commenced or while the proceedings were pending, hisobligation* and liability as employer comes to an end. I do not find,nor was this Court referred to, any provision in the Industrial DisputesAct'which provides for the continuation of the proceedings, on thedeath of a party.. A deceased employer’s heir cannot be substitutedan4 on his death the proceedings will have to come to an end.
In The Superintendent, '.Deeside Estate, Maskeliya v. Ilankai ThozhilarKasakam (3), the* workman applied for relief and named the.“Superintendent, Deeside Estate, Maskeliya” as his employer. SivaSupramaniam, J. held that the Labour Tribunal can only make anorder against a natural or legal person and that an order forreinstatement with back wages against the “Superintendent”, isunenforceable, as the office of Superintendent is not a legal person.
In The Manager, Dry Group, Passara v.. Democratic Workers'Congress (4), the party who was made respondent to.the applicationand against whom the order was made was, “The Manager, UryGroup, Passara.” Samerawickrame, J. held that where the name ofthe employer-respondent has not been stated, but the identity of theperson can be sufficiently known from his designation or description,the caption in the pleadings may be suitably amended so as to satisfythe requirement that a Labour Tribunal’s order can only be madeagainst a natural or legal person. He directed that the caption inthe pleadings and the order of the .President, Labour Tribunal, beamended by stating the employer to be the person holding the officeof Manager. He observed that there should not be the same insistenceon the proper naming of the respondent as there should be, forexample, in the case of an application made to a Court of law.
Learned Senior Attorney relied on the judgment of Samerawick-rame, J. to justify the substitution effected in the instant case. Icannot see how this judgment can assist him. In the said case the“Manager" was neither a natural or a legal person. In order to makethe order an enforceable one, Samerawickrame, J. amended the,,caption by inserting the name of the natural person ,who was the'holder of the office. The' identity of the person he was able todiscover from a perusal of the proxy. In the present case, a newparty, a legal person, has been substituted in place of a naturalperson and the effect of the substitution was to constitute theapplication a new one.
CASavoy Theatres Ltd. v. Parusella (Tamhiah. J.)761
The view taken by Samerawickrame, J., however, was not followedby Wijayatilake, J. in The Superintendent, Nakiadeniya Group, v.Cornelishamy (5) and he preferred to follow the decision in TheSuperintendent Deeside Estate, Maskeliya v. lllankai Thozhilar Kasakam
and held that where the Tribunal has made an unenforceableorder, an amendment cannot be effected in appeal. On account ofthe conflicting decisions of the Supreme Court, s. 51, was enactedin 1968 which enables a workman to apply for relief against the“Superintendent" or “Manager" without the addition of a' name, ifsuch Superintendent or Manager is his employer.
Learned Senior Attorney contended that Savoy Theatres Ltd. hadparticipated in the proceedings before the Labour Tribunal. It hasalso exercised the right of appeal given to an.employer under s.31of the Act. It cannot take advantage of a right given to an employerand at the same time say that it is not the employer. It cannotapprobate and reprobate. I am unable to accept this submission.
A i..'. j
In Arnolda’s case (2) the argument that Mrs. Arnolda had appearedbefore the Labour Tribunal and had consented to pay the workmanand therefore had acquiesced in the proceedings, was rejected byTambiah, J. He observed that consent cannot give jurisdiction andthat the mere fact that the petitioner appeared before the Tribunaland had consented to pay a sum of money, does not confer jurisdiction,when ;t has, in fact, no jurisdiction conferred on it by statute law.
The workman first sought to substitute the daughter of the deceasedemployer. She objected to the substitution and stated, inter alia, thatif Savoy Theatres Ltd. or she were substituted in the place of thedeceased, the application by the workman would become a freshapplication and would stand prescribed as against the substitutedparty. On the motion filed by the workman, the Labour Tribunalthen made order that Savoy Theatres Ltd. be substituted. It is notclear whether the substituted party had notice before the order wasmade for its substitution. The substituted party had no option butto partake in the inquiry. The Industrial Disputes Act. does notprovide for interlocutory appeals. The only remedy it had in orderto correct the wrong order of substitution, …was by way of appeal.
In the case of Winter v. Ceylon Estate Staffs* Union (6) the workmanin his application named three persons as his employers and madethem respondents. The President, Labour Tribunal, held in his order.that the workman was employed by a Company but yet made hisaward against the said respondents. One of the respondents appealed'and was able to have the order of the Labour Tribunal set aside, in appeal.
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<1982) 2 S L R.
Learned. Senior .Attorney relied on . the .case of Gafoor v. Almei-da (7) and submitted that a succeeding employer can bie^tt^ctied-with the liabilities of. a;preceding-employer. In this case one.Qf,ii]e .questions that arose fordecisicm:.was whether, if there is a changevkt the composition ot tbpnpm7bership by the . introduction of a new.-member., the new partnership, would. be responsible for the. liabilities. of.-the old partnershipoijrj respect of payments due to the workmanj.as gratuity, provident fynd payments,.etc. Weeraftiantry, J. applying. th* principles govcrRing!«uch matters in Partnership Law,, held thatin the circumstances/ <of- the case, there was both an express and an; ,imp!ied aMumption by.,the new partnership of the liability of the old, partnership towards tne. workman, in regard to his earlier period ofservice under jthe old partnership. I ciannot see what relevance thiscase has to tHe present case before us.
-1 set: aside the-order of the President of the Labour Tribunal,dated. 13th July, 1978. Having regard to all the circumstances in the. case, I make no order ,as regards costs.
G,P,S. DE SILVA, J. – I agree.
Appeal allowed.