004-SLLR-SLLR-1985-V2-WIJEWARDENA-LIQUIDATOR-JANAWASA-COMMISSION-AND-ANOTHER-v.-CHANDRADASA.pdf
CA
Sudharman De Silva v. Attorney-General (Siva Selliah, J.)
17
WIJEWARDENA, LIQUIDATOR, JANAWASA COMMISSION AND
ANOTHER
v,
CHANDRADASA
COURT OF APPEAL.
MOONEMALLE. J. AND 8ANDARANAYAKE, J.
C.A. 641/80. L. T. RATNAPURA 19895.
MARCH 5, 1985.
Award by Labour Tribunal against Janawasa Commission – Dissolution of JanawasaCommission – Is liquidator liable to pay amount of award ?
The applicant applied to the Labour Tribunal alleging unlawful termination of his servicesby his employer the Janawasa Commission. An award was made against the JanawasaCommission but before it could be enforced the Janawasa Commission was dissolvecfand a liquidator appointed. The question was whether the liquidator was liable to pay
, Sri Lanka Law Reports
11985) 2 Sri LR.
. 18
the amount of the award. The Janawasa Commission appealed against the order of the'■ Labour Tribunal awarding the applicant compensation and on the dissolution of theCommission the liquidators were substituted in its room as applicants.
Held –
The .liquidators who have been appointed in place of the dissolved JanawasaCommission have succeeded to the assets and liabilities of the Janawasa Commission.An award already made against the Janawasa Commission before its dissolution istherefore enforceable after the dissolution against the liquidators.
Cases referred to:
Mrs. Bobby Amolda v. Gopatan (1961)64 NLR 153.
K. Satchithanandan, Liquidator, Air Ceylon Ltd. v. Siriwardena CA 302/81 D C.Colombo 3336/2.
APPEAL from the Labour Tribunal, Ratnapura.
S. S. Sahabandulor appellants.
K. Balapatabendi for respondent.
Cur. adv. vult.
May 2.1985.
MOONEMALLE, J.
The applicant made an application to the Labour Tribunal on27.12.1978 against unlawful termination of his services by theJanawasa Commission. An exparte inquiry was held on 5.8.1980 asthe-respondents were absent, and order was made on 14.10.1980awarding the applicant a sum of Rs. 21,960 as compensation. Theapplicant on 29.10.1980 appealed against that order claiming anenhancement of the amount awarded as compensation. That appealwas dismissed. The Janawasa Commission which was the respondenthad also filed a cross-appeal against the order of the Labour Tribunalseeking to set aside that order on the ground that the said order wasmade exparte. That appeal is before us now.
The Janawasa Commission was dissolved as a result of theJanawasa Law No. 25 of 1976 being repealed by the JanawasaRepeal Act No. 9 of 1984. The liquidators aptjointed in succession tothe Janawasa Commission have been duly substituted as appellants inthis appeal. At the hearing of this appeal. Learned Counsel fo.r the'appellants did not pursue his ground of appeal; instead, he submitted
CALiquidator. Janawasa Commission v. Chandradesa (Moonemalle, J.)19
that after the repeal of the Janawasa Law. the Janawasa Commissionwho had employed the respondent ceased to exist, and as there wasno contract of employment between the liquidators and therespondent/the liquidators are not liable to pay the compensationordered to the respondent in the absence of specific provision inRepeal Act No. 9 of 1984. Learned Counsel for the respondentsubmitted that though the Janawasa Commission has been dissolved,liquidators had been appointed, and therefore the liquidators havesucceeded to all the assets and liabilities of the JanawasaCommission. He also relied on section 31B (6) of the IndustrialDisputes Act in support of his submission that the liquidators are liableto pay the compensation ordered to the applicant respondent.
The question that arises in this appeal is whether the liquidators areliable to pay the respondent the compensation ordered by the Labour -Tribunal against the Janawasa Commission.
The contract of employment between the respondent and theJanawasa Commission ceased with the termination of theemployment of the respondent. The Janawasa Commission, as theemployer, took part in the inquiry before the Labour Tribunal into thecomplaint made by the respondent that his services were unlawfullyand unjustly terminated. Learned Counsel for the appellants did not.pursye his ground of appeal, and he did not challenge the validity ofthe order of the Tribunal as being a just and equitable order. Thereforethe order of the Tribunal remains a just and equitable order. If thecontention of learned counsel for the appellant is accepted then thisjust and equitable order would be rendered nugatory. Thus, it is toprevent the frustration of actions by workmen that the legislature in itswisdom enacted section 31 B (6) (a) {/)) (c) of the Industrial DisputesAct which reads :
Notwithstanding Vhat any person has ceased to be anemployer –
an application claiming relief or redress from such person maybe made under sub-section (1) in respect of any period duringwhich the workman to whom the application relates wasemployed by such person, and proceedings thereon may be1taken by a labour tribunal.
(£>} If any such application was made by such person while suchperson was such employer, proceedings thereon may becommenced or continued and concluded by a labour tribunal,and
20
Sri Lanka Law Reports
0985] 2 Sri LR.
a labour tribunal may on any such application order such personto pay to that workman any sum as wages in respect of anyperiod during which that workman was employed by suchperson, or as compensation as an alternative to thereinstatement of that workman or as any gratuity payable to thatworkman by such person, and such order may be enforcedagainst such person in like manner as if he were such employer.
These provisions in clear and unambiguous language provide for theenforcement of an order made by a Labour Tribunal awardingcompensation against a person who has ceased to be an employer inlike manner as if he were employer. The liabilities against theJanawasa Commission have not been waived or denied to anyclaimant by the Janawasa Repeal-Act No.9 of 1984.1 am of the viewthat the Liquidators who have been appointed in place of the dissolvedJanawasa Commission have succeeded to the assets and liabilities ofthe Janawasa Commission. The contention that before the liquidatorsare made liable to pay compensation on an order made against theJanawasa Commission there should first be specific provision to thateffect in the Janawasa‘Repeal Act, is untenable.
Learned counsel for the appellant cited the case of Mrs. BobbyArnolds v. Gopalan (1) in support of his submissions. This was a casewhere after the death of the employer, the employer's widowinformed the workman that his services had ceased in view of thedeath of her husband. An application was made by the workman tothe labour tribunal claiming wages,, compensation and gratuity fromhis employer's widow for the period he was employed under thedeceased employer. As a result of a settlement, the President of thelabour tribunal ordered the widow to pay the sum of Rs. 2073.50 tothe workman. It was held that in an application made by a workmanafter the death of his employer, a labour tribunal has no jurisdictionunder the Industrial Disputes Act to order the widow or legalrepresentative of the deceased employer to pay the workman wages,compensation or gratuity due to the workman for the period he wasemployed under the deceased. This case can be distinguished fromthe facts of the present case. In the present case, the application tothe labour tribunal and the award- were made long before theJanawasa Commission was dissolved by the Repeal Act No. 9 of$ 984. Thus the judgment in this reported case has no relevancy to thematters in issue in this appeal.
CA Liquidator, Janawasa Commission v. Chandradasa JMoonemalle. J.j 21
Learned Counsel for the appellant also cited the case of
K.Satchithanandan, Liquidator, Air Ceylon Ltd. v. G. D. $. Siriwardene
. In that case ex parte judgment was entered in the District Courtof Colombo against Air Ceylon Ltd. for non-appearance on thesummons returnable date. An application to set aside the ex partejudgment was refused. At the hearing into the application in revisionbefore the Court of Appeal, it was contended on behalf of thepetitioner that His Excellency the President, as Minister of Defence,dissolved Air Ceylon Ltd. under the Finance Act No.38 of 1971, andappointed the petitioner as Liquidator. It was also contended thataccording to section 19 of the Finance Act, a dissolution of a publiccorporation precedes the appointment of a Liquidator and, that assuch, when it is shown that a Liquidator has been regularly appointedby the Minister of Defence, it would under section 114 (e) of theEvidence Ordinance raise a presumption that a valid order ofdissolution has been made prior to the appointment. Thus, it wascontended that the effect of the dissolution was that the defendantcorporation ceased to exist as a legal person on the summonsreturnable date, and therefore that the judgment entered was oneentered against a non-existent person and is a nullity. It was held that'section 19 should be construed to mean that the appointment of theliquidator, when necessary, should precede the dissolution of thecorporation, and that section 114 (e) of the Evidence Ordinance canbe of no assistance to the petitioner.' The application in revision wasaccordingly dismissed. This judgment too is of no assistance to theappellant. For the reasons stated above I, thus, hold that thecompensation of Rs 21,960 awarded to the respondent against theJanawasa Commission is binding on the Liquidators:appellants whohave succeeed to the assets of the Janawasa Commission. Theappellants are liable to pay the applicant respondent the said sum ofRs 21,960. The appeal is dismissed with costs fixed at Rs. 315.
The Liquidators-appellants to deposit the sum of Rs. 21,960 andthe costs of Rs. 315 at the office of the Asst. Commissioner ofLabour, Ratnapura within two months of receipt of this order.
BANDARANAYAKE, J. – I agree.
Appeal dismissed.