Stale (iraphite Cooperation r. Hernando (Wnnaswulera. J.)
THE ASSOCIATED NEWSPAPERS OP CEYLON LTD.
SAMARAKOON, C.J.. WANASUNDERA. J.. AND SOZA, JS.C. APPEALS 10/81 AND 13/81.
C.A. 183 AND 185 OF 1978.
L.T. 12/6759/77 AND 13/6772/77JUNE 22, 1982.
Industrial Dispute – Industrial, Disputes Act, section MB – Regulations 15 and 57- Constitution of 1972, Article II – Language of Courts (Special Provision) LawNo. 14 of 1973.■,
The petitioners were employees of the respondent who terminated their services.The Labour Tribunal held that their termination was. unjustified and awardedthem back wages in lieu of reinstatement and compensation to both.
On appeal to the Court of Appeal the following findings were affirmed –
compensation in lieu of reinstatement
and the order relating to back wages was deleted.
Both parties appealed against these orders to the Supreme Court.
It' was contended on behalf of the employees that the application should bedismissed in limine as the language of the application was not Sinhala.
The word ‘pleadings' in Article 11(1) of Constitution of 1972 does notinclude an application for relief or redress under section 31(B) of Industrial
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(1982) 2 S.L.R.
Disputes Act. Nor does Article 11(1) preclude an application being madeto the Labour Tribunal in English.
No prejudice was caused to the other party by having the proceedings in English.
When a tribunal is called upon to determine compensation it should takeinto account back wages lost but it is not entitled to make a separate awardof back pay in addition to compensation.
Cases referred to:
Dixon v. Calcrqft (1892) 1. Q.B. 458, 462, 463
Nelungaloo Ply Ltd. v. The Commonwealth (1947-1948) 75 C.L.R. 495,569,571.
APPEAL from judgment of the Court of Appeal.
H.L. de Silva with Mark Fernando for appellant in 10/81 and 11/81 .and for
respondent in 12/81 and 13/81.
R. Weerakoon for respondent in 10/81 and 11/81 and for appellant in 12/81 and 13/81.
Cur. adv. vult.
September 3, 1982SOZA, J.
These appeals arise out of applications for relief founded on unjusttermination of their services made by two employees (M.B. Jayasingheand Upali Ariyachandra) against their employer The AssociatedNewspapers of Ceylon Ltd. In both cases the President of the LabourTribunal held that the termination was unjustified and by way ofrelief ordered the payment of Rs. 19,000/- as back wages andRs. 68,400/- as compensation in lieu of reinstatement to M.B. Jaya-singhe (LT 12/6759/77) and Rs. 1.2,900/- as back wages andRs. .46,440/- as compensation in lieu of reinstatement to UpaliAriyachandra (L.T. 13/6772/77). On appeals being preferred againstthese orders the Court of Appeal affirmed the finding of unjusttermination of services and the payment of compensation in lieu ofreinstatement ordered by the Labour Tribunal but deleted the orderrelating to the payment of back wages in both cases.' In both thesecases the newspaper company has appealed to this Court from theorders of the Court of Appeal in respect- of termination of servicesarid the award of compensation. These are appeals 10 and 11 of1981. M.B. Jayasinghe and Upali Ariyachandra have also appealedto this Court in respect of the deletion of the orders for the paymentof back wages. These are appeals 12 and 13 respectively of 1981.The appeals were considered together as the same points were involved.
SCThe Associated Newspapers of Ceylon l.td. i Jnvasinyhc tSozu, J.)597
In the two appeals by the newspaper Company we are called uponto decide whether an application foT relief in the Labour Tribunalmade under section 31B of the Industrial Disputes Act during theperiod when the Constitution of Sri Lanka of 1972 was in operation(from 22nd May 1972 until its replacement by the Constitution of1978) is null and void if made in English. Article II (I) of theConstitution for 1972 stipulated inter alia that the language of tribunalsestablished under the Industrial Disputes Act should be Sinhala andaccordingly their records including pleadings, proceedings, judgments,orders and records of all judicial and ministerial acts should be inSinhala. In the Northern and Eastern provinces however parties andapplicants were permitted to submit their pleadings, applicationsmotions and petitions in Tamil but even then the Tribunal was undera duty to cause a Sinhala translation to be made for the purposesof the record (Article 11 (3) of the Constitution of 1972, and theLanguage of the Courts (Special Provisions) Law No. 14 of 1973).Article 11 (6) of the Constitution of 1972 empowered the Ministerof Justice to authorise Presidents of Labour Tribunals and pleadersto use a language other than Sinhala or Tamil but this of coursedid not apply to the parties themselves.
Learned Senior Counsel for the appellant submitted that theapplications for relief made by the respondents to the Labour Tribunalupon which the proceedings we are called upon to review werc'i’akenare pleadings and therefore had to be in Sinhala. The applicationsin the instant case had been made in English and- should not havebeen taken cognizance of. They should have been rejected in limineas they contravened an imperative provision of the Constitution.
The validity of the contention that the applications for relief arebad in law and nullity must be examined with reference to theprovisions of the Industrial Disputes Act relating to the making ofapplication for relief or redress to the Labour Tribunal. Section 31B(1) of this Act stipulates that a workman or trade union on behalfof a workman who is a member of that union may make an applicationin writing to a Labour Tribunal for relief or redress. The procedureis laid down in Regulation IS of'the Industrial Disputes Regulations,1958 made by the Minister and approved by the Senate and theHouse of Representatives and published in Government Gazette No.
. 11688 of 2.3.1959. It must be observed that these Regulations havebeen made in compliance with the provisions of section 39 of the.Industrial Disputes Act and are therefore as valid and effectual asif they were enacted in the main Industrial Disputes Act. Regulation
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15 reads as follows:'
“Every application under section 31B -of of the Act shall besubstantially in FormD set out in the First Schedule heretoand shall be sent to. the Secretary in duplicate”.
Form D provides inter alia for the application to be made underthe signature of the applicant. Where the Union to which the workman- belongs makes the -application, it must be signed by the Presidentor ^Secretary – see Regulation 17.
The combined effect of all these provisions is to make it imperativethat an application fof relief or redress by a workman should be inWriting and be signed by him. The expression “ pleading” is generallyunderstood as including the statements in writing of the petition,application, claim of demand of any plaintiff, petitioner or applicant' and of the defence theireib and counterclaim if any of the defendantor respondent and ihfe reply to the counterclaim and therefore itwould be imperative that these should be in Sinhala where Tamil isnot permitted. But where the petition, application, claim or demandis expected by law to be made in writing by the applicant himselfrather than by his pleader then the* language requirement cannot beinsisted upon for the applicant himself cannot be expected to takepersonal responsibility for the contents of his petition, application,claim or demand if he is required to make it in a language withwhich he is not sufficiently conversant.-
In the election petition Appeals No. 2 of T977''(Medawachchiya),No. 3 of 1977 (Kotmale) and No. 2 of 1978 (Anatttaduwa) Consolidatedas one appeal – (S.C. Minutes of 7.8'. 1978)''a Divisional Bench offive judges of the former Supreme Court had occasion to considerthe legal provisions relating to language in the Constitution of 1972in cases where the election petition had been filed in English.Referring., particularly to the stipulations – in paragraphs (c) and (d)of section 80B of the Ceylon (Parliamentary Elections) Order inCoynci),;. 1946, that an election, petition should contain a concisestatement of; the. material facts on which the petitioner relies and besignetl by him. yjs-a-vis the provision in-.Article 11 (1) of theConstitution of-..;-1972 that -pleadings . should be in Sinhala,Samarawickrema, J.- (with whom the other Judges agreed) stated-asfollows:. ..:vi .
Having regard ,to the provision in section 80B (e) and (d), itwould appear that the requirement.that the petition should besighed by all. the petitioners is matte f°r the reason that theyare required to take responsibility for the statements contained
SC The Associated Newspapers of Ceylon Ltd. r. Jayasint’he tSoza. J.)599
in the petition. In view of this, it would appear that if theprovision of section 80B alone applied, a petition should bein a language which is understood by the petitioners. Article11(1) of the Constitution, however, provides that pleadingsshould be in Sinhala. The word ‘pleadings’ 's one of wideconnotation and it is a canon of interpretation that wordswhich are general and not precise are to be restricted to thefitness of the matter. I am. therefore, of the view that theword “pleadings" in Article 11(1) would not include an electionpetition which is required to be signed by the petitioners,obviously as an indication that they take responsibility for thestatements contained therein, should be in a language understoodby the petitioners.”
With great respect I would adopt the reasoning of Samarawick-rema, J. It is a legal requirement that an application for relief .orredress under section..31B of the Industrial Disputes Act musfc. besigned by the. applicant. The law,„expccts. the applicant to.-stakeresponsibility. Jor the, material .stated,, in., his• application, .upon whichhe claims, ,r.elief ori re<ir.e^s.-i.Therefore.;he must be perihifctfeditokmakeit in the languageihe^.preietsuTbe word “pleadingsmini!Articles-. 11(1)of.the Constitution,.of ..1972 does, not. include, aa.,apptix;ation for reliefor redress, under.. section. 31.B. of the Industnial-sDisputesAct. Nor.does the requirement of Article 11(1) of the Constitution, of 1972that the language; of the Tribunal should be Sinhala and its recordskept in that language preclude an application being made to it inEnglish. The responsibility is on the Tribunal to cause, a Sinhalatranslation to be made for the record. If-this was not done theapplicant cannot be faulted or prejudiced. In,fact Samarawickrema,J. pointed out that Article 11 of the Constitution of 1972 carries, noprovision as to the effect of non-compliance with it and accordinglywhere no prejudice has been caused the failure of the Tribunal tocomply with the language requirements of Article 11(1) of theConstitution will result only in an irregularity and will not be fatal.With this conclusion of Samarawickrema. J.. I am again in respectfulagreement. In the instant case the respondent too fjled his objectionsin English and obviqusly the proceedings were better understood byeverybody for being in that language. No prejudice was .caused tothe parties least of all to the Newspaper Company.
I will now turn to the question whether back wages could beawarded along with compensation as an alternative relief to reinsta-tement. The relief of reinstatement is granted where the contract of
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employment has. been unjustifiably oreached by the employer. Backwages can then be' awarded on the basis of an unbroken contractof employment. Of course the quantum of back wages and the periodfor which they will be awarded will depend on the circumstances ofeach particular case. For instance if the employee had obtained otheremployment after the date of termination that will be a relevantcircumstance. But when the Tribunal orders compensation can it alsoorder ba^k wages? The purpose of compensation is to place in thehands of the victim what he has lost so far as money can do it. Itconnotes money equivalence. It is a recompense or indemnity forlo&s. It must be remembered that there is a distinction betweencompensation and damages though there are occasions when the two'words are synonymous. As a concept compensation is remedial butdamages can be enhanced and punitive or be diminished and evennominal. Damages are" not always related to the actual moneyequivalent of the loss – (see the discussion by Lord Esher, M.R. inDixon v Calcraft (1) and by Dixon, J. (later C.J.) in NelungalooPiy. Ltd. v The Commonwealth. (2) What the industrial DisputesAct speaks of is compensation as an alternative to reinstatement (ss.31B(b)(c)j. To order back wages and compenstation as an alternativeto reinstatement would be to duplicate one factor which should enterinto the computation of compensation. One among the several factorswhich should enter into the computation of compensation in the typeof case we are considering is the period of unemployment and thatwould include back wages. The object of the exercise should be toascertain as far as possible the money equivalent of the loss ofemployment from the date of unjust, dismissal. The calculation mustdepend on the particular circumstances of each case. Wages canprovide a useful unit for the calculation but it is neither possiblenor desirable to lay down a formula for application in all cases.When a Tribunal is called upon to determine compensation it shouldtake into account the back wages lost but it is not entitled to makea separate award of back pay in addition to compensation. Hencethe back wages awarded by the Tribunal were rightly struck off bythe Court of Appeal.
I am therefore of the view that the judgment of the Court ofAppeal should be affirmed. The appeals of the appellants as well asof the respondent are dismissed. There will be no costs as no partyhas been completely successful.
SC Appuhamy i». Kusumalatha
SAMARAKOON, C.J. — I agree.WANASUNDERA, J. — I agree.Appeal dismissed.
THE ASSOCIATED NEWSPAPERS OF CEYLON LTD v. JAYASINGHE