THE ATTORNEY-GENERAL v. RUBBERITE LIMITED AND ANOTHER

007-SLLR-SLLR-1994-V1-THE-ATTORNEY-GENERAL-v.-RUBBERITE-LIMITED-AND-ANOTHER.pdf


Sri Lanka Law Reports
[199411 Sri L.R.
228
THE ATTORNEY-GENERAL
v.
RUBBERITE LIMITED AND ANOTHER
COURT OF APPEAL.
DR. GUNAWARDENA. J.
CA APPLICATION NO. 730/90MC KANUWANA 90119OCTOBER 17TH, 1994.
The Termination of Employment of Workmen (Special Provisions) Act. sections6A (1), 6A (2), 7 and 8 – Action filed by the Commissioner of Labour in theMagistrate's court to enforce his order for payment of compensation, made underSection 6A(1).
The Commissioner of Labour filed action under Section 7 of the Termination olEmployment ol Workmen (Special Provisions) Act, for failure to comply with anorder made by him, to pay compensation under Section 6A(1), of the said Act.The learned Magistrate discharged the accused stating that the said Order of the
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Commissioner of Labour had been made in excess of his powers.The twogrounds on which the learned Magistrate held that the said Order of theCommissioner of Labour was invalid were –
that the plaint filed by the Commissioner of Labour in the Magistrate Court didnot disclose that the terminated employees belonged to a schedule employment.
(ii) that before an order for compensation under Section 6A(1) is made, an orderfor reinstatement had to be made.
Held:
That the said order of the Commissioner of Labour specifically stated thathe was acting under section 6A(1), and therefore it is not necessary to stateseparately in the plaint that the workmen belong to a schedule employment.
That the provisions of section 6A(1) do not require that an order forreinstatement should be made first, before an order for compensation could bemade, where the workmen's employment is terminated upon closure of trade,
industry or business.
That the action filed by the Commissioner of Labour under Section 7 is acriminal prosecution, and is different in character, from an application made by aworkman under Section 6A(2), to enforce an order made by the Commissioner ofLabour under Section 6A{ 1).
Cases referred to:
Attorney-General v. Chandrasena (1991) 1 Sri LR 86
Attorney-General v. Wilson Silva (1992) 1 Sri LR 44
APPLICATION for Revision of the Order of the Magistrate, Kanuwana
P. G. Dep S.S.C. for the Petitioner.
Isidore Fernando for the 2nd Respondent.
October 12th, 1994.
DR. GUNAWARDENA, J.
This is an application to revise the order of the learned Magistrateof Kanuwana, made on 22nd April 1992. In the said order the learnedMagistrate has stated that, he has already decided in case No.82019 and 82022 that the order sought to be enforced in this casehad been made by the Commissioner of Labour, in excess of the
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powers vested in him. Therefore, he has decided that the prosecutioncannot proceed with the case and discharged the accused.
The learned Counsel for the petitioners submitted that, the saidorder of the learned Magistrate was erroneous in law. He pointed outthat, in the order in case No. 82019, the learned Magistrate has heldthat, the order of the Commissioner of Labour dated 10.09.1990 isbad in law on two grounds. The first ground was that, the petition inthe said case did not disclose that the petitioner belonged to aschedule employment. In this regard the learned State Counselpointed out that the order of the Commissioner of Labour dated10.09.1990 specifically stated that he was acting under section 6A(1)of the Termination of Employment Act and therefore it is notnecessary to state separately that the workman belonged to aschedule employment. The second ground was that, theCommissioner of Labour could not have made the said order, withoutfirst making an order for reinstatement. The learned State Counselsubmitted that the provisions of section 6A(1) does not require thatan order for reinstatement be made first, before an order forcompensation is made, in a situation where the termination ofemployment was due to the closure of industry or business. Hesubmitted that both grounds upon which the learned Magistrate hasheld that the order of the Commissioner of Labour was invalid, areerroneous in law. Therefore he submitted that the order of the learnedMagistrate cannot stand in law. Upon a consideration of the saidsubmissions by the learned State Counsel, this Court is of the viewthat the said submissions reflect the correct legal position. It may benoted here that the learned Counsel for the Respondent did not seekto challenge those arguments, but relied on other grounds to showthat the petitioner had no right of Revision in this case.
Furthermore, it was erroneous for the learned Magistrate to haveapplied the said order to the instant case, namely case No. 90119.The instant case is an application made by the Commissioner ofLabour under Section 7 read with section 8 of the Termination of theEmployment Act. It is a criminal prosecution arising from the failure ofthe employer to comply with an order made under Section 6A(1).Thus the requirements for making an application to the Magistrate's
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Court by the Commissioner of Labour are different to those that wouldapply to an application by a workman, under section 6A(1).
The learned Counsel for the respondent submitted that the Courtshould not exercise the power of Revision vested with this Court inthis case, as the petitioner has not disclosed material particulars. Thematerial particulars referred to is that, the petitioner has notmentioned that a sum of Rs. 150,000/- was payed on 17.8.89, and afurther sum of Rs. 50,000/- was payed on 11.09.89, by the secondrespondent, to the Commissioner of Labour The learned StateCounsel pointed out that the said sum of money had been paid priorto the order of the Commissioner of Labour dated 10.09.90, andtherefore the Commissioner of Labour would have taken that amountinto consideration when he decided the amount payable ascompensation, as contained in the said order dated 10.09.90. Thusthe said payment is not relevant to the consideration of thisapplication.
The learned Counsel for the respondent submitted that an affidavithas not been filed along with the application, by the petitioner, who isthe Attorney-General. Learned State Counsel cited the case ofAttorney-General v. Chandrasena 01 where it was held “that theabsence of an affidavit by Attorney-General did not violate theprovisions of the Rules 46 of the Supreme Court Rules, as the Courtwas invited to decide only a question of law … The said decision wasfollowed with approval in Attorney-General v. Wilson Silva (!l. Thelearned State Counsel submitted that, the Attorney-General who isthe petitioner in this case is relying on a question of law and thereforean affidavit was not necessary.
The learned Counsel for the respondent further submitted thatthere is a delay of nearly one year and four months, in the Attorney-General making this application to this Court. The petitioner hasexplained the delay in paragraph 14 of the petition, by stating thatthe Revision Applications in the said two cases M.C. Kanuwana82019 and 82022, where the learned Magistrate had made the saidorders were pending before this court. Therefore the petitioner hadnot appealed and was awaiting the decision of this Court in those
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cases. Since those cases were not decided by this Court, thepetitioner had sought to file this Revision Application, in this case.
For the reasons stated above, this Court hereby set aside the saidorder of the learned Magistrate dated 22nd April 1992. The learnedMagistrate is hereby directed to proceed with the trial, as early aspossible, and make order according to the law.
Order set aside.
Case remitted for trial.