002-NLR-NLR-V-65-SUPERINTENDENT-WALAPANE-ESTATE-Appellant-and-WALAPANE-SRI-LANKA-WATU-KAMKARU-.pdf
S ** BA3NAYAKE. CJT.—SttparirUmdeni, Walapan* Estate v. Waiapon&
Sri Lanka Watu Kamkant Sangomaya
1963Present: Bwmjvb*, CX» Abeyeaunbete, J., and<3. P. iL Silva, J.SUPERINTENDENT, WALAPANE ESTATE, Appellant;, andWAIAPANE SRI LANKA WATU KAMKARU SANGAMAYA,
Respondent
S. C. 3 of 1962—Labour Tribunal No. LT. 3/5863
Estate Labour {Indian) Ordinance—Section 23—Authority of employer to terminatethe services of the spouse of a discharged labourer.
Section 23 of the Estate Labour (Indian) Ordinance affords authority to anemployer who lawfully terminates the contract of service of a labourer toterminate the contract of service of the labourer‘3 spouse at the same time.
Ceylon Workers' Congress v. Superintendent, Kallebokica Estate (64 N. L. R. 95),overruled.
Appeal from a decision of a labour Tribunal. This appeal was
referred to a Bench of three Judges under section 48A of the CourtsOrdinance.
V. Perera, Q.C., with jS. Sharvananda and L. Kadirgamar, forEmployer-Appellant.
S. Kanakaratnam, with Nimal Senanayake, for Applicant-Respondent.
Cur. adv. vuli.
March 27, 1963. Basetayake, C.J.—
This appeal first came up for hearing before my brother T. S. Fernando.At the hearing before him learned counsel for the appellant canvassed thecorrectness of the decision in The Ceylon Workers' Congress v. The Superin-tendent, KaUebokha Estate As he formed the view that the questionarising for adjudication was one of doubt or difficulty he reserved thequestion under section 48 of the Courts Ordinance for the decision ofmore than one Judge. I accordingly made order under section 48A ofthat Ordinance constituting a Bench of three Judges and the appealnow comes up for hearing before us in pursuance of that Order.
This appeal is from the decision of a labour tribunal and is lodgedunder the right granted by section 31D(2) of the Industrial DisputesAct as amended by the Industrial Disputes (Amendment) Act. Thematerial subsections of section 31D reads :—
“ (1) Save as provided in subsection (2) an order of a labour tribunalshall be final and shall not be called in question in any court. 1
1(1982) 84 2f, J>. R. 95.
BASNAYAKE, C.J.—Superintendent, Walapane Estate v. Walapane
Sri Lanka Walu Kamkaru Sangamaya
9
(2) Where the workman who, or the trade union which, makes anapplication to a labour tribunal or the employer to whom that applica-tion relates is dissatisfied with the order of the tribunal on that applica-tion, such workman, trade union or employer may, by written petitionin which the other party is mentioned as the respondent, appeal tothe Supreme Court from that order on a question of law.
(5) The provisions of Chapter XXX of the Criminal Procedure Codeshall apply mutatis mutandis in regard to all matters connected withthe hearing and disposal of an appeal preferred under this section.”
The question of law that arises for decision on this appeal is whethersection 23 of the Estate Labour (Indian) Ordinance affords no authorityto an employer who lawfully terminates the contract of service of alabourer to terminate the contract of service of his spouse at the sametime. The President of the labour tribunal has found that in the instantcase the contraot of service of the labourer Sinnasamy was lawfullyterminated by the employer, and that the services of his spouse wereterminated in consequence of the termination of her husband’s services.But in view of the decision in Ceylon Workers’ Congress v. SuperintendentofKallebokka Estate (supra) he holds that the termination of the servicesof Sinnasamy’s wife Velamma is illegal and unjustified and has ordered thatshe be reinstated with back wages which he fixes at Rs. 600.
The present appeal is from that order. An appeal lies only on a questionof law, and five questions have been certified by counsel as fit questionsfor adjudication by this Court. The questions certified overlap, arenot elegantly worded and are not confined to questions of law. Asthe certificate is one required by section 340 (2) of the Criminal ProcedureCode, Counsel should be careful to state with precision the questionor questions of law without stating questions of mixed law and fact.The only question of law that emerges from them is that stated above.I shall now turn to that question. Section 23 of the Estate Labour■(Indian) Ordinance reads :
“ 23 (1) At the time when any labourer lawfully quits the service ofany employer, it shall he the duty of that employer to issue to thatlabourer a discharge certificate substantially in form II in Schedule B,and, where at such time the spouse or a child of such labourer is alsoa labourer under a contract of service with that employer, it shall bethe duty of the employer, subject as hereinafter provided, to determinesuch contract and to issue a like certificate to such spouse or child :
Provided that where such spouse or child wishes to continue inservice under such contract and produces to the employer a jointstatement signed by both husband and wife to that effect, nothing inthe preceding provisions of this subsection shall be deemed to requirethe employer to determine such contract or to issue a dischargecertificate to such spouse or child.
10 BASKA.YAK.tS, Q.2.—8tqpmrinimdmi, Walopano MsiaU v. WaloponaSri Lanka Watu Eomkaru Sangemoya
Any employer who refuses or neglects to give a discharge certi-ficate to any labourer aa required, by this section shall be guilty of an
offence, and shall be liable on conviction thereof to a fine which mayextend to one hundred rupees, and a further fine not exceeding fiverupees for every day during whioh such default- shall continue.
In this section, “ child ” means a minor and includes an adoptedor illegitimate child who is a minor.”
In the case of the Ceylon Workers’ Congress v. The Superintendent ofKaUebokka Estate (supra) my brother Tambiah held that the abovesection does not apply to a case in which the employer terminatesthe services of a labourer and that its application is confined to the casein which a labourer voluntarily quits the service of an employer.
The word “ quits ” occurs not only in section 23 but also in sections
and 25(3), and neither in section 23 nor in the other section does itadmit of the restricted meaning given to it in the case referred to above.The word “ quits ” is not a term of ait and given the ordinary meaningthat is appropriate to the context of section 23 it means “ to leave Alabourer lawfully quits the service of his employer when he leaves afterhis services come to an end either when he or the employer in the exerciseof the right to terminate the contract of service lawfully terminates it.Whether the employer lawfully terminates the contract of service or thelabourer does so, the statute imposes on the employer the duty underpain of punishment of determining the contract of service of his spousewhere the spouse is also a labourer under a contract of service withthat employer and no application is made under the proviso to section
(1). That provision is designed for the benefit of the spouse of alabourer. It prevents the employer from discharging the husbandwithout at the same time releasing the wife. In our opinion the caseof The Ceylon Workers’ Congress v. T/ie Superintendent of KaUebokkaEstate has been wrongly decided and on the findings of fact in the instantcase it was the duty of the employer to determine the contract of serviceof the labourer’s spouse and to issue to her a discharge certificate.
The appeal is allowed and the decision of the Labour Tribunal, thatthe determination of the contract of Sinnasamy’s wife Velamma isillegal and unjustifiable together with the award of Rs. 600 as back wages,is set aside.
ABBVBStraDmB, J.—I agree.
P. A. Silva, J.—I agree.
Appeal allowed.