091-NLR-NLR-V-73-THE-CEYLON-WORKERS’-CONGRESS-Appellant-and-THE-SUPERINTENDENT-GONAKELLA-EST.pdf
The Superintendent, Cona/.clla Estate, Passara
1S70Present: Samerawickrsme, J.
THE CEYLON WORKERS’ CONGRESS, Appellant, and THESUPERINTENDENT, GONAKELLA ESTATE, PASSARA,and another, RespondentsS. C. SO(68—Labour Tribunal No. B. 1375
Estate Labour {Indian) Ordinance (Cap. 133)—Scope of s. 23 (1)—D-ismissal oflabourer—Effect on his wife's contract of service.
When an estato labourer was summarily dismissed on 13th November 1060,tho employer gave notice on that dato to the labourer’s wife that her services- would bo terminated as from 14th December 1966. Gn 17th December 1960a document purporting to bo a joint statement in terms of tho proviso to section23 (1) of tho Estate Labour (Indian) Ordinance was produced to the employer^The only point taken at tho inquiry before the Labour Tribunal was that the'employer had no right to and was not obliged to terminate tho services of thelabourer's wife.' •
• B
Held, that at the time tho employer gave notice, he was bound by t$$>-provisions of section 23 (1) of the Estate Labour (Indian) Ordinanco ,tg>.terminate tho services of the labourer’s wife. As the notice terminating herservices took effect on 14th Doceraber 1966, the termination of her serviceswas both lawful and justified. The subsequent tender of the joint statementcould not render that termination not lawful or unjustified.
SAMERAWTCKRAME, J.—Ceylon Workers' Congress o.
The Superintendent, Gonakella Estate, Passara
<93
Appeal from an order of a Labour Tribunal.
N.Satyendra, for the applicant-appellant.
Lakshman Kadirgamar, with P. Ramanalhan, for the employcr-respondent.
Cur. adv. vull.
August 29,1970. Samerawickrame, J.—
On 13th November, 19GG, notice was given to Kuttiyammah that herservices would be terminated as from 14th December, 19GG. Notice oftermination was given by the employer in terms of Section 23 (1) of thoEstate Labour (Indian) Ordinance, as Kuttiyammah’s husband Vadivelhad been summarily dismissed on 13th November, I960. Notice oftermination took cfTcct on 14th December, 19GG, and up to that datono joint statement in terms of tho proviso to s. 23 (1) of the Estate Labour(Indian) Ordinance had been produced to the employer. On the 17thof December, a document purporting to be a joint statement was tendered.In the ease of Superintendent, Walapanc Estate v. Walapane Sri LankaWalu Kamkaru Sangamaya1 a Divisional Bench of this Court took thoview that “ Whether the employer lawfully terminates the contract ofservice or the labourer does so, the statute imposes on the employerthe duty under pain of punishment of determining the contract of serviceof his spouse where the spouse is also a labourer under a contract ofservice with that employer and no application is made under the provisoto 6. 23 (1) ”. At the time the craplojcr gave notice, he was, in terms'of the decision referred to above, under a duty to terminate the servicesof Kuttiyammah and a6 notice terminating her services took cfTcct on14th December, 19GG, I am of the view that the termination of her serviceswas both lawful and justified. The subsequent tender of the jointstatement cannot render that termination not lawful or unjustified.
Learned counsel for the appellant submitted that a joint statementwhich is tendered within reasonable time would suffice and he referredto the ca.se of The Ceylon Workers' Congress v. The Superintendent ofRocLcrry Estate in which Allcs, J., held that no effect should be givento a belated joint statement which had been filed three jears after thedismissal. In that ease however, the wife was summarily dismissedand given one month’s salary in lieu of notice and it was argued by theappellant union on her behalf that no opportunity had been given to
» {1063) 65 N. J,. R. S.
{1067) 70 N. L. R. 211.
496SAMERAWICKRAMK, J.—Ceylon Workers' Congress v.
The SuperihtcnrlerU, Gonakclla Estate, Passara
file a joint statement under s. 23 (1). Allcs, J., held that in view of thefact that three years had elapsed before the joint statement had beenfiled it was belated arid could not be treated as a serious expression ofwillingness of the appellant to seek re-employment.
Learned counsel for the appellant also submitted that the matter mustbo looked at as at the date of the inquiry before the Labour Tribunaland that as a joint statement had been in fact filed, the Labour Tribunalwould not be making an order the effect of which is to sanction a breach-of a law of the land. In The Svj>erintendent, High Forest Estate, Kandapolav. Walapane Sri Lanka ]Vatu Kamkuru Sangamaya, Uda Pussellawa l,where apparently no joint statement had been tendered, T. S. Fernando,
J., took the view that an order for reinstatement would be one whichwould enable s. 23 (1) to be flouted and therefore would not be just andequitable. The present case differs from that in that a joint statementhad been filed though late. Whether the spouse of an Indian labourerlawfully and justifiably dismissed at the time of the dismissal where ajoint statement is later filed, may be ordered by a Labour Tribunalto be reinstated and in what circumstances an order of reinstatementwould be just and equitable are not questions free of difficulty. It ishowever, in my view, unnecessary to decide these questions in this case.The Union filed the application to the Labour Tribunal on behalf ofIvuttiyamroah and stated that her services had been terminated withoutvalid reason and that her dismissal was wrongful and unjustified. Theemploj’er filed answer stating that ho terminated her services as he wasobliged to do so consequent to the termination of the services of Vadivelher husband and because it was deemed necessary in the interests ofdiscipline, economy and the due and proper administration of the estate.At the inquiry counsel for the appellant took up the position that thecmpIo37er had no right to and was not obliged to terminate the servicesof Kuttij'ammah. The point that, even assuming that the employerwas obliged ti) terminate the services of Kutt-iyammah and thereforeher dismissal was both lawful and justified, the Labour Tribunal shouldnevcrthelers make order reinstating Kutliyammah was not raised atan}' stage of the inquiry nor has it been specifically raised in the petition■of appeal. Fuithcr the President- of the Labour Tribunal took the viewthat discipline and efficient management of the estate would be a fleetedif Kutti3>ammah was retained in service.
In the circumstances, the appeal is dismissed with costs fixed atRe. 105.
Appeal dismissed.
.* [1063) 66 AT. L. R. 14. *