THE CEYLON PETROLEUM CORPORATIONv.
WEERAKOON AND ANOTHER
G. P. S. DE SILVA. C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. NO. 21/95
APRIL 28. AND JUNE 30.1995.
Industrial Dispute – Is special security force classifiable under Security ServiceTrade?- Wages Board Ordinance Section 6(1).
The Special Security Force (3rd to 38th respondents) was established for thepurpose of providing security, inter alia, for the installations of the Corporation ofSapugaskanda. The special security force was qualitatively different from thenormal security service trade contemplated by the Order made under section6(1) of the Wages Board Ordinance and had been established for a particulartask or assignment, namely, to meet a national emergency and to provideprotection against terrorist attacks.
APPEAL from judgment of the Court of Appeal.
L. C. Seneviratne, P.C. with Percy Wickramasekera, S. Jayasinghe and H. V.Situge for the petitioner-appellant.
R. Weerakoon for the 2nd to 5th respondents.
P. A. Ratnayake, S.S.C. for the Commissioner of Labour.
Cur adv vult.
G. P. S. DE SILVA, C. J.
There was a dispute between the appellant (petitioner), the CeylonPetroleum Corporation, (hereinafter called the Corporation) and themembers of the Special Security Force (3rd to the 38th respondents)established for the purpose of providing security, inter alia, for theinstallations of the Corporation at Sapugaskanda. The dispute relatedto a claim for the payment of overtime made by the members of theSpecial Security Force. The Commissioner of Labour intervened tosettle the dispute but ultimately the Corporation was called upon bythe Commissioner of Labour to pay the members of the SpecialSecurity Force their claim for overtime. Thereupon the Corporationmoved the Court of Appeal by way of an application for a writ ofcertiorari to quash the orders (P7 and P21) of the Commissioner ofLabour requiring the Corporation to pay the aforesaid claim forovertime.
The Court of Appeal dismissed the application for a writ ofcertiorari; hence the appeal against the judgment of the Court ofAppeal by the Corporation to this Court.
Special Leave to appeal to this Court was granted on the followingmatters:
Is the Special Security Force a trade or business covered by theWages Boards Ordinance?;
In as much as the Special Security Force was constituted for aparticular task or assignment, can the said Special SecurityForce be regarded as a trade or business as envisaged by theWages Boards Ordinance?
It is common ground that by an order made under section 6(1) ofthe Wages Boards Ordinance (and duly gazetted) the provisions ofPart II of the Wages Boards Ordinance have been made applicableto the Security Service Trade. This order was made on 26.10.82 andpublished in gazette extraordinary No. 216/13 of 29.10.1982. It cameinto force on 15.11.1982. The question then is whether the SpecialSecurity Force established at Sapugaskanda in or about March 1986falls within the meaning of the expression “Security Service Trade” inthe Order made under section 6(1) of the Wages Boards Ordinance.If it does, then the application for the Writ of Certiorari necessarilyfails.
Mr. Seneviratne for the Corporation submitted that in deciding thisquestion, the purpose for which the Special Security Force wasestablished is a relevant consideration. Paragraph 26 of the petitionfiled in the Court of Appeal sets out the true reason for establishingthe Special Security Force. It reads thus:-
“26. The petitioner states that the special security unit was infact estabfished as a para-military force in view of the seriousthreats from terrorists attacks on vital government installations.Most of the personnel selected had a service or policebackground and were given initial training by the ArmyCommando Regiment and at the Army Training Centre atRatmalana, for a period of 1 1/2 months. The personnel of thesaid security force were armed with UZI automatic pistols andstrike guns. They were also provided with 2 jeeps and radiocommunication. Further, as in normal para-military service, theyhad to reside within the installation complex and were notentitled to overtime payments. Bachelor status, livingaccommodation and facilities for cooking with cooks which arenot available to the normal security service were also providedfor this special security unit. They were on the other hand, paida higher emolument than employees in the normal securityservice and were also paid a risk allowance. The petitioner
states that all these factors are characteristic of a SpecialSecurity Force being a para-military service.”
It would thus appear that the special security service was notintended merely to provide the normal security service; rather it wasestablished to meet a national emergency that had arisen at thattime, namely, to provide a special form of protection against terroristattacks. As submitted by Mr. Seneviratne, the personnel recruited tothis unit had a “service” or “police” background and had undergonea special course of training. The officer in charge of the unit held theoffice of Major in the Army. The document R3 produced withthe statement of objections filed in the Court of Appeal is entitled“The contingency plan for the refinery in the event of terroristattack…” It seems to me that R3 supports the argument ofMr. Seneviratne that the objective of the unit was to meet a “nationalexigency.”
It is also to be noted that it was on special terms and conditionsthat the respondents were recruited to this security unit. Paragraph 9of the petition (filed in the Court of Appeal) refers to the terms andconditions: "… (a) to be on call duty for 24 hours; (b) not entitled toovertime payment; (c) to be resident throughout within the securitycomplex; (d) entitled to be paid a sum equivalent to 50% of theirsalary; (e) entitled to a risk allowance of Rs. 250/- and (f) a mealallowance of Rs. 400/- which was subsequently increased toRs. 500/-.”
On the other hand, Mr. Weerakoon for the respondents strenuouslycontended before us that despite the special terms and conditionsand the rigour and “intensity” of the training given to the recruits, theSpecial Security Force remained a “security service trade” within themeaning of the Order made under section 6(1) of the Wages BoardsOrdinance. Counsel also referred us to the wide terms in which theexpression “trade” is defined in section 64 of the Wages BoardsOrdinance.
On a consideration of the rival contentions advanced on behalf ofthe Corporation and the respondents it seems to me that the SpecialSecurity Force established in 1986 is qualitatively different from thenormal security service trade contemplated by the Order made in1982 under section 6(1) of the Wages Boards Ordinance. In my view,the Court of Appeal in dismissing the application for a Writ ofCertiorari has erred, in as much as the Court has failed to considersufficiently the totality of the facts namely the basic objective inestablishing the Special Security Force, the special terms andconditions on which persons were taken into the new unit, and thecharacter of the training given. These facts have a direct bearing onthe essential character of the security service trade established in1986.
It is true that the expression “trade" has been defined in wideterms to include, inter alia, any occupation or calling performed by aworker. But the true question is whether the security force atSapugaskanda was an occupation or a calling covered by the“Security Service Trade” specified in the Order made under Section6(1) of the Ordinance noting that, the expression “Security Service”itself has not been defined.
The lawfulness of establishing the security force to meet a"national exigency” has not been challenged. The only dispute iswhether the said force is covered by the Minister’s Order; if so,whether the provisions of part II of the Ordinance which include therequirement to pay overtime apply. The said provisions empower aWages Board to determine hours of work, a normal workingday, intervals for meals and rest, weekly and annual holidays,overtime, and different rates of wages in a trade etc. If theseprovisions had to be applied to the appellant, then, the securityforce at Sapugaskanda could not have been lawfully established.This would confirm the view that the Order relied upon bythe 3rd to 38th respondents has no application to the said securityforce.
I accordingly allow the appeal, set aside the judgment of the Courtof Appeal and direct that an order in the nature of a writ of certiorarido issue to quash P7 and P21. In all the circumstances, I make noorder as to costs.
KULATUNGA, J. -1 agree.RAMANATHAN, J. – I agree.
THE CEYLON PETROLEUM CORPORATION v. WEERAKOON AND ANOTHER