016-NLR-NLR-V-77-THE-SUPERINTENDENT-ST.-THERESE-ESTATE-and-3-others-Appellants-and-CEYLON-ESTA.pdf
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THAMOTHERAM., J.— The Superintendent, St. Thereae Estate v.
Ceylon Estates Staffs' Union
Present: Thamotheram, J.THE SUPERINTENDENT, ST. THERESE ESTATE and 3 others,Appellants, and CEYLON ESTATES STAFFS’ UNION,Respondent
S. C. 96/69—Labour Tribunal Case No. 9/1148
Labour Tribunal—Just and equitable order—Part oj it must not be left
to the decision of the employer—Industrial Disputes Act (Cap.
131), ss. 31 B, 31 C (1), 31 D (1), 33 (1) (3) (5) (6).
Relief was claimed under section 31 B of the Industrial DisputesAct in respect of the termination of a workman’s services by hisemployer. The President of the Labour Tribunal who heard theinquiry ordered reinstatement of the workman and further stated :“ If however the respondent is unable to reinstate the worker forany valid reason, I order that a further sum of Rs. 3,000 be paidas compensation.”
Held, that when a Labour Tribunal purports to make a just andequitable order, the decision of a part of the order must not beleft to the decision of the employer. The order made in the presentcase was therefore a nullity.
Appeal from an order of a Labour Tribunal.
Lakshman Kadirgamar, with P. Ramanathan, for therespondents-appellants.
S. S. Rajaratnam, for the applicant-respondent.
Cur. adv. vult.
March 7, 1971. Thamotheram, J.—
The Ceylon Estates Staffs’ Union made an application onbehalf of one of its members R. M. Luxman, claiming relief inrespect of the termination of his services. He was employed asa Factory Officer at St. Theresa Estate, Harasbedda and hisservices were terminated from 21.8.67.
The Respondents admitted the termination and said that itwas for gross insubordination, misconduct and fraud.
After inquiry the learned Labour Tribunal President madethe following order. “ I order that the applicant worker, Mr. R.
M.Luxman, be reinstated with immediate effect. I furtherorder that he be paid full back wages for the period of non-employment at the rate of Rs. 211.25 for a period of 22 monthsamounting to Rs. 4,647.50. If, however, the respondent is unableto reinstate the worker for any valid reason. I order that afurther sum of Rs. 3,000 be paid as compensation ”.
TTT AM OTHER A AT. J.—The Superintendent, St. Therese Estate v.
Ceylon Estates Staffs' Union
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Mr. Lakshman Kadirgamar, for the Respondents, argued thatthe above order was bad as it was not a final order. ,It left thedecision as to the terms of the order to the employer. It wasnot a clear order to reinstate or an order for compensationor an order for compensation as an alternative to reinstate. Itwas an order which left the decision as to whether the ordershould be one of reinstatement or one of payment of compensa-tion to the employer. The employer’s decision was to bedependent on the existence of valid reasons of which he alonewas the judge.
Under Section 31 (C) (1) of the Industrial Disputes Act, wherean application under 31 (B) is made to a Labour Tribunal itshall be the duty of the Tribunal to make an order “ as mayappear to the Tribunal to be just and equitable after hearingevidence and making a full inquiry ”. Under Section 31 (D) (1)the order of the Labour Tribunal shall be final and shall not bequestioned in any court.
The order of the Labour Tribunal may contain a decision asto reinstatement in service of any workman whose dismissal isa matter in dispute (33 (1) (b) ). It may also contain a decisionas to payment of compensation to any workman by an employer(33 (1) (d) ).
Under Section 33 (3) where any award or order of a LabourTribunal contains a decision as to reinstatement in service ofany workman in any employment, then, if the employment isin the capacity of personal secretary, personal clerk, personalattendant or chauffeur of the employer or domestic service orin any prescribed capacity of a description similar to thosementioned, the award or order of the Labour Tribunal shallalso contain a decision as to payment of compensation to theworkman as an alternative to his reinstatement.
Under Sub-Section 5 of Section 33 where a Labour Tribunal■considers that the decision should be made for the reinstatementin service of any workman, then, if the workman so requests,the Tribunal may in lieu of making that decision make a decisionfor payment of compensation to that workman. Sub-Section 6of Section 33 states that the provisions of Sub-Section 3 and 5already referred to shall not be construed to limit the power ofa Labour Tribunal to include in an award a decision for paymentof compensation as an alternative to reinstatement.
A close examination of the sections referred to above bringout the following features of an order or award under Section31 (C) :—(a) It is the duty of a Labour Tribunal to make Suchorder as may appear to the Tribunal to be just and equitable.
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THAMOTHERAM, J.—The Superintendent, St. Therese Estate v.
Ceylon Estates Staffs' Union
(b) An order of a Labour Tribunal shall be final and shall not becalled in question in any court (subject to the right of appealfrom the order on a question of law). (c) An order of a LabourTribunal may contain decisions (1) as to reinstatement. (2) Asto the payment of compensation. (3) As to payment of compen-sation to the workman as an alternative to his reinstatementwhen the workman falls into one of the categories enumeratedunder Section 33 (3). (4) The order of payment of compensationas an alternative to reinstatement when the workman sorequests. (5) A general discretion to make an order to paycompensation as an alternative to reinstatement, in any fitcase.
It is the duty of the Labour Tribunal to make an order whichappears to it to be just and equitable and such an order mayinclude a decision to direct reinstatement or a decision to orderpayment of compensation in lieu of reinstatement or to makean order for reinstatement and as an alternative, payment incompensation.
Where a Labour Tribunal is empowered to give the option ofpaying conpensation in lieu of reinstatement it is a pure choicethat is left to the employer. Where the Labour Tribunal ordersreinstatement and states that if for any valid reasons the work-man cannot be reinstated the employer is to pay a stipulatedsum as compensation, then the order is not one giving theemployer a pure choice of one of two alternatives. It is inreality a delegation of the function of deciding whether theorder should be one of reinstatement or not to the employer. Ifhe had no valid reasons he must reinstate the workman. If hehad, then, he must pay coimpensation. The decision as towhether he had valid reasons or not is something which theTribunal has surrendered to the employer.
In Jayasena v. Sideek 1 63 N. L. R. 425, T. S. Fernando, J. heldthat an Industrial Court cannot delegate to a 3rd party itsfunctions of deciding a dispute which has been referred to it forsettlement. Where an award is made in violation of this rule anysum of money due upon it cannot be recovered in a Magistrate’sCourt in terms of Section 33 Sub-Section 2 of the IndustrialDisputes Act. In the instant case the decision of a part of thejust and equitable order had been left to the decision of theemployer.
For the reasons given above I hold that the President’s orderis a nullity. I direct that the application be heard de novobefore another President.
Order set aside.
» (1961) 63 N. L. R. 425.