042-NLR-NLR-V-65-STANLEY-J.-PERERA-Appellant-and-YOOSOOF-SAH-Respondent.pdf
B ASNAY AKE, C.J.—Stanley Per era v. Yoosoof-Sah
193
Present: Basnayake, C.J., Abeyesundere, J., and G. P. A. Silva, J.
STANLEY J. PERERA, Appellant, and YOOSOOE-SAH, RespondentS. C. 559/62—M. C. Colombo, 10459
Industrial dispute—Non-employment of a workman—Power of Court to order compen-sation to be paid to the workman—Scope—Industrial Disputes Act, as amendedby Acts Nos. 25 of 1956,14 of 1957 and 62 of 1957, ss. 33, 40 (1) (a), 41, 43 (1).
Although, under section 33 of the Industrial Disputes Act, an Industrial Courtcan order a workman to be reinstated in service and, as an alternative to hisreinstatement, payment of compensation to him, it has no power to order thepayment of compensation without a decision as to reinstatement. Payment ofcompensation being an alternative to reinstatement the former cannot existindependently. It can only exist as an alternative to the latter.
PPEAL from an order of the Magistrate’s Court, Colombo.
H. W. Jayewardene, Q C., with L. Kadirgamar and L. C. Seneviratne,for Accused-Appellant.
R. S. Wanasundere, Crown Counsel, for Attorney-General.
February 16, 1963. Basnayake, C.J.—
The appellant Stanley J. Perera, a director of Taos Limited, was triedon the following charge and found guilty :—
“ You, Stanley J. Perera, being a Director of Taos Ltd., are herebycharged that Taos Ltd., did at Colombo within the jurisdiction of thisCourt, in contravention of section 40 (1) (a) of the Industrial DisputesAct, No. 43 of 1950 as amended by Industrial Disputes (Amendment)Acts, Nos. 25 of 1956, 14 of 1957 and 62 of 1957 (hereinafter referredto as ‘the said Act’) fail to comply with the terms to wit, clause 8 ofan Award made by an Industrial Court and published in GovernmentGazette No. 12,662 of September 15, 1961, requiring the aforesaidTaos Ltd., to make payment to the workers referred to in the saidAward, the sums of money due to them by way of compensation,within the period prescribed by such award, to wit, within three weeksfrom the 15th September, 1961, and that you being a Director of theaforesaid Taos Ltd., have thereby committed an offeDce punishableunder section 43 (1) read with section 41 of the said Act.”
This appeal is from that finding. Shortly the facts are as follows :—An industrial dispute arose between the United Engineering Workers’Union and Taos Limited of which the appellant was a director. Thematter in dispute is thus stated in the reference made by the Minister on7th February 1961 under section 4 (2) of the Industrial Disputes Act: –
9—LXV
2—B. 12604—1,855 (0/63)
1946 ASN AY ART?,, O.J.—Stanlay Parent v. Ycosoof-Soh
t.
" The matter in dispute between the United Engineering Workers’Union and Taos Limited, Kew Road, Colombo 2, is whether the non-employment of the following workers is justified and to what reliefthey mo entitled to. (The names of the workers are appended.)”
On 31st August 1961 Mr P. O. Fernando, a Judge of the IndustrialCourt at Colombo made his award which was in terms of section 25 (1)of the Act published in Gazette No. 12,662 of September 15, 1961. The8th clause of the award reads—
“ When an employee participates in a strike he is using a fundamentalright. He does not commit any offence when he takes part in a strikeand an employer is not justified in dismissing a worker merely becausehe absents himself in furtherance of a strike. Action against a strikercould be taken by an employer only when the strike is illegal and totallyunjustified or when a striker commits misconduct by assaulting orthreatening workers or by damaging the property of the employer.This question has been discussed in a number of cases in India. Severalcases have been cited including Smith Stanistreet Company v. WorkersUnion reported in 1953, I Labour Law Journal, 67, and Caltex v. itsWorkers reported in 1955, II Labour Law Journal, page 693.I consider that the management acted unreasonably in refusing toallow the employees to return to work on December 30th, and thattheir action amounted to an unfair’ labour practice. It is clear that theCompany had very little work to give its employees and the managementappears to have taken this opportunity to get rid of its employeeswithout paying them any relief. Ordinarily they would be entitledto reinstatement and I would have ordered reinstatement but for thefact that I was informed that the Company had practically lost allorders from the Fisheries Department and would have to close down inthe near future. The Company was started a few years ago and noneof the employees have been there for a long period. Consideringall the circumstances of the case I consider the employees should begranted relief by the payment of two months’ salary as compensation.But in the case of those who had already been given notice of discon-tinuance at the end of December, 1960,1 consider it would be sufficientif they were paid one month’s salary as they have already been givenone month’s notice of discontinuance. The salary each employeewould be entitled to is his salary and allowance. Such salary andallowance which each employee is entitled to for each month wouldhe his average monthly earnings during the three months September,October and November, 1960. The amount due to each employeeshould be paid through the Assistant Commissioner of Labour {Indus,trial Relations) within three weeks of the publication of this award.”
The Company failed to oomply with the terms of the above clause andproceedings were instituted in the Magistrate’s Court upon a report by
M. M. Yoosoof-Sah Labour Officer under section 148 (1) (5) of theCriminal Procedure Code to the effect that Taos Ltd. had failed to comply
BASNAYAELE, C.J.—Stanley Perera v. Yoosoof-Sah
195
with the terms of the award and pay the workers referred to therein thesums of money due to them by way of compensation. The learnedMagistrate held—
“ That as far as the award Pi is concerned, the Industrial Courthas not exercised Judicial power and it is therefore not ultra vires. Theaward was binding on the firm Taos Ltd.by virtue of section 26 of theIndustrial Disputes Act and its failure to comply with it was thereforean illegal omission. Since acts also include illegal omissions accordingto section 3 (1) of the Criminal Procedure Code, the firm has contra-vened the provisions of section 40 (1) (a) of the Act in not complyingwith the award. The accused as a Director of the firm is, therefore,liable in view of the provisions of section 41 of the Act. I find theaccused guilty of the charge against him.”
It is submitted by learned counsel that the order to pay compensationis not an order the Industrial Court had power to make in the circumstan-ces of this case and that it is ultra vires and non-compliance with an illegalorder is not an offence under the Act.
Now section 33 prescribes the decisions which may be specified in anaward under the Act as follows :—
“ (a) as to wages and all other conditions of service, including deci-sions that any such wages and conditions shall be payableor applicable with effect from any specified date, which may,where necessary, be a date prior to the date of the award,and decisions that wages shall be payable in respect of anyperiod of absence by reason of any strike or lockout;
as to the reinstatement in service, or the discontinuance fromservice, of any workman whose dismissal or continuancein employment is a matter in dispute, or who was dismissedor ceased to be in service at the commencement or in thecourse of any strike or lockout arising out of the industrialdispute;
as to the extent to which the period of absence from duty of
any workman, whom the arbitrator or industrial court hasdecided should be reinstated, shall be taken into account ordisregarded for the purposes of his rights to any pension,gratuity or retiring allowance or to any benefit under anyprovident scheme;
as to the payment by any employer of compensation to any
workman as an alternative to his reinstatement, the amountof such compensation or the method of computing suchamount, and the time within which such compensation shallbe paid.”
It will be seen that there is power to make decisions as to reinstatementin service and payment of compensation to any workman as an alter-native to his reinstatement. There is no power to order the payment of
196 Venerable. Vagiew&aabarya Moevntudmve £W Nemeewara Diuwamonanda
Nay aka There a. Venerable KaMikorulayoae JPannaeeketa Nay aka There
compensation without a decision as to reinstatement. In the instant casepayment of oqanpgnsatioa. has been ordered without a decision ae to
reinstatement. This the Judge had no power to do. Payment of com-pensation being an alternative to reinstatement the former cannot existindependently. It o^n only exist as an alternative to the latter. Asit is a decision tbe Industrial Court had no power to make, it cannot beenforced nor does the person who fails to comply with it commit theoffence created by section 40 which provides inter alia that any personwho, being bound by an award of an industrial court, does any act incontravention of any of the terms of that award shall be guilty of anoffence under the Act.
Tbe conviction of the appellant is therefore quashed and he is acquitted.Abeyestjkdere, J.—I agree.
Gr. P. A. Silva, J.—I agree.
Appeal allowed.