RAJARATNAM, J.—Sirisena v. Silva
1972Present: Rajaratnam, J.
W.D. SIRISENA, Appellant, and M. SAMSON SILVA,Respondent
8. C. 62/68—Labour Tribunal Case No. 1 0/23587
Industrial Disputes Act (Cap. 131)—Sections 31B (2), 33 (2) (a)—Application Jarrelief made by a workman in respect of the termination of his services—Awardof arrears of wages—Validity of such award.
Arrears of wages incidental to the relief and redress whioh a workman alarmsin respect of the termination of his services can be awarded when an applicationis made in terms of section 31B (1) of the Industrial Disputes Act.
Karunaratne v. Jackolis Appuhamy (74 N. L. R. 46) not followed.
ApPEAL from an order of a Labour Tribunal.
R.L. Jayasurxya, with N. T. 8. Kularalne and M. E. W. Peirie, forthe respondent-appellant (employer).
P. R. Vicbramanayake, for the applicant-respondent (workman).
Cur. adv. putt.
July 21, 1972. Rajaratnam, J.—
The applicant workman had been awarded arrears of salary amountingto Rb. 4,200 and a sum of Rs. 2,703*39 due on account of transport chargesaltogether a sum of Rs. 6,903. This order was made after an ex parteinquiry. The employer respondent appeared in person on 25.11.65 and
RAJARATNAM, J.—Siriaena v. Silva
since the parties were not ready, the inquiry was postponed. On thenext date 2.5.1966, the employer was absent after sending a letter thathe was unwell. On 6.6.1966 he was absent. On 28.6.1966 he was againabsent on which date the applicant stated that since he worked in the Gallearea and the respondent had his branch office at Beruwala it will be moresuitable for the inquiry to be held by the Labour Tribunal in Galle.
Summons and notioes had been served on the employer and he neverpresented himself but went on writing that he wanted the case transferredback to Colombo. The respondent in effect refused to participate in theproceedings.
The President heard the applicant and made the award referred toabove. Following his own procedure he made on Order Nisi and theemployer was informed that the Order will be made absolute on aspecified date on which date too the employer absented himself and thesaid Order became absolute.
The employer now comes by way of appeal complaining about theex parte order. Learned Counsel for the appellant quite properly, if Imay say so, stressed on two legal matters.
That arrears of wages cannot be awarded by a Labour Tribunal.
That the award for Rs. 2,703-39 on account of transport charges
was bad in law.
The definition of the term employer in the Industrial Disputes Act iswide enough to catch up the agent or the principal and in the totality ofthe pleadings and the evidence together with the conduct of the respondentthere cannot be any difficulty to conclude that he was an employer withinthe meaning of that term in the Industrial Disputes Act.
Moreover it is clear in the circumstances that the applicant wasemployed by the respondent and his services were terminated.
Mr. Jayasuriya cited two cases before me. In Earunaratne v. JackolisAppuhamy1, 74 N. L. R. p. 46, Pandita-Gunawardena J. held that anapplication for the recovery of balance wages does not come within thepurview of the Section. In that case the applicant, on the facts statedin the judgment asked for the balance wages in arrears simpliciter. Butthe present case is different, the applicant asks also for compensationon account of dismissal without notice. Section 31 B (1) enables aworkman to come to the Labour Tribunal to claim relief and/or redress inrespect of—
(o)the termination of his services
the question whether any gratuity or other benefits are due to him
from his employer on termination of his services
such other matters relating to terms of employment as may be
‘ (1970) 74 N. L. R. 46.
RAJARATNAM, J.—Siruena v. Silva
Under 31 B (1) (a), a workman has a right to go to the Labour Tribunalfor relief or redress in respect of the termination of his services and underthe Industrial Disputes Act, it shall be the duty of the Tribunal to make
all inquiriesand thereafter to make such order as may appear to
the Tribunal to be just and equitable.
If the Tribunal when the applicant cries for redress and relief withrespect to the termination of his services, being under a duty to make ajust and equitable order as it must appear to it, makes an order includingunpaid wages—will it be wrong to say that an order for the payment ofunpaid wages can be included in a just and equitable order ? With greatrespect to all contrary opinion, I am of the view that unpaid wages canbe awarded by the Labour Tribunal in the just and equitable order itmakes in respect of the termination of the services of a workman. Forthe mere reason that there is an alternate remedy for an unpaid workmanto go to the Labour Department, it cannot be said that the LabourTribunal cannot include payment of unpaid wages in its order, when thereis an application under 31'B (1) (a) in respect of the termination of services.Under Section 33 (1) (a) an order of a Labour Tribunal, it is statedspecifically, “ may contain decisions as to wages and all other conditionsof services ”. It is not’ necessary for me in the present case to examinethe scope of 31 B (1) (c) “ such other matters relating to the terminationof employment or the condition of labour of a workman as may beprescribed Suffice it to say that if a monthly payment of a salaryto a workman is one of the terms of employment or condition of labourprescribed by regulation of law, arrears of salary may be claimed underSection 31 B (1) (c) also. I
I have considered the judgment reported in Supreme Court Minutes of9.10.70 in S. C. 61/69 de novo Labour Tribunal Case No. 7/15546 whereSilva J. held the same view as Pandita-Gunawardene J. With greatrespect I am unable to agree with the view expressed therein. I findit very difficult to hold that' a just and equitable order which the Presi-dent of a Labour Tribunal is required by law to make must necessarilyexclude arrears of wages. There is no doubt that there is an easier wayfor a workman to recover his unpaid wages and if a workman makes noclaim on his leaving his employment except for back wages which areunpaid he should resort to the easier course to recover the same and itwill be reasonable for the Labour Tribunal to refer him to that easiercourse of action. But where a workman comes to the Labour Tribunalfor relief and redress in respect of the termination of his services, the Actdoes not prevent the President of the Labour Tribunal to give him thatrelief and redress as will appear to it, just and equitable and this reliefmay include compensation, wages in lieu of notice and unpaid wages.It will be certainly neither just nor equitable for a Tribunal to make anorder in favour of a domestic servant who had not been paid his salaryfor years only for gratuity and compensation excluding wages unpaidfor years 1
RAJABATNAM, J.—Giritena c. Silva
For these reasons I hold that arrears of wages incidental to the reliefand redress a workman claims in respect of the termination of his servicescan be awarded.
The 2nd legal submission made by the learned Counsel for the appellanthas to succeed in my view, i.e., that the award for Rs. 2,703 39 on accountof transport charges was bad in law. It succeeds for the reason that thisrelief was not claimed in the application when the applicant asked forrelief on matters which related to his employment. Moreover, from theevidence it transpired that the said sum was for some charges due fortransporting some boats which appears to be due to the applicant on someprivate arrangement with the respondent and not necessarily with theprincipal, i.e., Nawalanka Builders Limited.
I therefore delete this sum from the order. Subject to this variationthe appeal is dismissed. The applicant will be entitled on this order for apayment of Rs. 4,200 and costs fixed at Rs. 315.
Appeal mainly diemitsed.
W. D. SIRISENA, Appellant, and M. SAMSON SILVA, Respondent