SRI LANKA STATE PLANTATION CORPORATION vs. DHARMAWNSA AND OTHERS

044-SLLR-SLLR-2006-V-1-SRI-LANKA-STATE-PLANTATION-CORPORATION-vs.-DHARMAWNSA-AND-OTHERS.pdf


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SRI LANKA STATE PLANTATION CORPORATIONVSDHARMAWANSA AND OTHERSCOURT OF APPEAL,
SRIPAVAN J. AND,
DE ABREW J„
C.A. 12040/2005,
NOVEMBER 8,2005
AND JANUARY 16 AND 23, 2006
Industrial Dispute -Employee seeking administrative relief to compel employerto keep him in employment till 60 years-Application also filed in the LaboutTribunal for re-instatement-lndustrial Disputes Act, section 31(B)5-Writapplication Withdrawn-Objection that employee cannot maintain the LabourTribunal application-Filing of writ applicaiion-ls it a bar to the maintainability ofthe Tribunal application ?
HELD:
i. The case before the Labour Tribunal is decided not on the principlesof administrative law but on the principles of equity.
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ii. The provisions of section 31(B) (5) of the Industrial Disputes Actdoes not operate as a bar to the maintainability of the case filed in theLabour Tribunal and seeking a remedy under the Administrative Lawdoes not prevent the employee from seeking relief under the Industrial
Disputes Act.
APPLICATION for a writ of certiorari.
Cases referred to :
Saleem vs Hatton National Bank -(1994) 1 Srf LR 409
Tri StarApperal Exports vs Gajanayake – Sc 85/2003 SC (HC) LA 38/2003-SCM 08.03.2004.
Govinda Jayasinghe with / Devapriya for petitioner.
1 st and 3rd respondents absent and unrepresented.
Champaka Ladduwahetti for 2nd respondent.
Cur.adv.vult
MARCH 22,2006,
SISIRADE ABREW J.This is an application for writs of certiorari and mandamus to quash theorder dated 03.06.2005 made by the 1st respondent in the applicationbearing No. LT18/KT/3323/04 and to direct the 1 st respondent to dismissthe said application pending in the Labour Tribunal, Kalutara. The facts ofthis case may be summarized as follows.
The 2nd respondent in this case (hereinafter referred to as the applicant)was in employment of the petitioner company(hereinafter referred as theemployer) as the Superintendent of the estate called and known as Perthestate. The applicant was employed on yearly contact basis. The applicantreceived a letter dated 10.05.2004 directing the applicant to hand over thesaid estate to one Senarathne, the newly appointed Superintendent. Uponreceiving the said letter the applicant filed a writ application in the Court ofAppeal bearing No. 1658/2004 praying inter – alia for,
1. a mandate in the nature of a writ of mandamus compelling theChairman of the employer to permit the applicant to be in employmentof the employer until the applicant reaches age of 60 years.
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2. a mandate in the nature of a writ of certiorari quashing the decisionof the employer by which the applicant was required to hand overPerth estate to the incoming Superintendent.
The applicant, whilst the aforementioned writ application was pendingin the Court of Appeal, filed an application in the Labour Tribunal, Kalutara,under the provisions of the Industrial Disputes Act, claiming inter – alia,reinstatement in the employer's corporation on the basis that his terminationof services was unjustifiable. The applicant thereafter withdrew the saidwrit application. When the application before the Labour Tribunal was takenup for trial, learned Counsel for the employer raised an objection to themaintainability of the application on the basis of section 31 B(5) of theIndustrial Disputes Act. The learned President of the Labour Tribunal, byhis order dated 03.06.2005. overruled the said objection. The employer, bythis writ application, seeks a writ of certiorari to quash the said orderdated 03.06.2005.
Learned Counsel for the employer contends that in view of section 31 B(5)of the Industrial Disputes Act, filing of the writ application No. 1658/2004operates as bar to the maintainability of the application filed in the LabourTribunal. I will now advert to this contention.Section 31 B(5) of the IndustrialDisputes Act reads as follows :
‘Where an application under subsection (1) is entertained by a labourtribunal and proceedings thereon are taken and concluded, the workmanto whom the application relates shall not be entitled to any other legalremedy in respect of the matter to which that application relates, andwhere he has first resorted to any other legal remedy. He shall notthereafter be entitled to the remedy under subsection (1).”
In writ application No. 1658/2004 the applicant challenged the decisionof the employer to terminate his services on the principles of administrativelaw. The applicant, in the said writ application, moved court to quash thesaid decision of the employer on the basis that it was contrary to theprinciples of administrative law. The case before the Labour Tribunal isdecided not on the principles of administrative law but on the principles ofequity. In the Labour Tribunal case the applicant has moved the tribunal,
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inter-alia (a) to declare that his termination of services is unjustifiable andunreasonable and (b) to order the employer to pay Rs. 864683.10 ascompensation. In the writ application No. 1658/2004, if the applicant wassuccessful, the decision of the employer to terminate the services of theapplicant would have been quashed. On the other hand, if the applicantwas unsuccessful in the said writ application the said decision of theemployer would have been in operation. Does this mean that the applicant’srights such as any gratuity or other benefits due to the applicant from theemployer on the termination of services; and question whether any amountof compensation is due to the applicant even if the termination is held tobe justified, should not be looked into ? The Labour Tribunal can awardcompensation even if the termination is justified. Vide Saleemv. HattonNational Bank.w Considering these matters. I hold that seeking a remedyunder the Administrative Law does not prevent an employee from seekingrelief under the Industrial Disputes Act.
In the case of Tri Star Apparel Exports-^-Gajanayakd2) the workmansought an interim injunction from the District Court restraining the employerfrom dismissing him from his employment. Justice Thilakawardene (JusticeWigneswaran and Justice Jayasinghe agreeing) held that seeking the abovementioned relief in the District Court was not a bar for the workman toseek relief under section 31 B(5) of the Industrial Disputes Act, in theLabour Tribunal. Considering the principles laid down in the above judicialdecisions. I am of the view that the provisions of section 31B(5)of theIndustrial Disputes Act does not operate, in the circumstances of thiscase, as a bar to the maintainability of the case filed in the Labour Tribunal.
I therefore refuse to grant the interim relief sought in paragraph (e) of theprayer to the petition.
SRIPAVAN J. — I agree.
Interim relif sought refused.