X (EMPLOYER) v. DEPUTY COMMISSIONER OF LABOUR AND OTHERS

017-SLLR-SLLR-1991-V-1-X-EMPLOYER-v.-DEPUTY-COMMISSIONER-OF-LABOUR-AND-OTHERS.pdf


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X (EMPLOYER)V.
DEPUTY COMMISSIONER OF LABOUR AND OTHERSCOURT OF APPEALGUNASEKERA, JC.A. 46/91; 47/91M.C. KANDY 84430 & 85865JUNE 28 AND JULY 02 1991
Evidence – Payment of Gratuity Act, No. 12 of 1983 ss. 8 (1) and (2) – Certificates
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of Commissioner of Labour – Finality – Meaning of ‘prima facie evidence" – Showingcause
Held:
Showing cause against certificates issued under the Payment of Gratuity Act No. 12of 1983, S.8(1) is not limited to showing that the petitioner was not the person namedas defaulter in the certificate, that he has paid the amount specified in the certificateand that he is not resident within the jurisdiction of the Magistrate's Court but alsoextends to showing that the sums specified in the certificates are not due or thatthey have been incorrectly calculated because under S.8(2) of the Act, theCommissioner's certificate is only prima facie evidence. It is open to the petitioner todisplace the effect of the prima facie evidence by offering further evidence of aninconsistent or contradictory nature.
Cases referred to:
Mohideen V. Assistant Commissioner of Co-operative Development of Kalmunai- S.C. 642/75 – S.C. minutes of 13.03.77.
Danny V. Commissioner of Labour CA 1293/83 – C.A. Minute of 16.12.1988.
APPLICATIONS in revision of the Orders of the Magistrate of Kandy.
S.M. Fernando with Miss H. Fernando & W.M. Gunawardena for the petitioner.
Miss K. Sivapathasunderam for 2nd respondentS. Sriskandaraja, S.C. for 1st and 3rd respondents.
Cur. adv. vult.
31 July 1991
GUNASEKERA, J.
Two certificates had been filed by the 1st Respondent, the DeputyCommissioner of Labour at times relevant to the applications dated24.10.89 & 18.9.89 respectively before the Magistrate Kandy, thatsums of Rs. 24,000 & Rs. 12,900 were due from the Petitioner asgratuity payable to two workmen H. D. Fonseka and A. M. P. Sammyde Silva the 2nd Respondents to the applications. These twoapplications have been filed before the learned Magistrate is termsof section 8(1) of the Payment of Gratuity Act No. 12 of 1983.
After proceedings were instituted before the learned Magistrate forthe recovery of the above mentioned sums of money, the Petitionersought leave of the learned Magistrate to show cause that neithera part nor the whole of the sums referred to in the certificates weredue from the Petitioner. The Labour Officer who appeared for theDeputy Commissioner of Labour objected to the application made onbehalf of the Petitioner to show cause that the amounts mentioned
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in the certificates were not due and that the sums had beenincorrectly calculated. The basis of the objection of the DeputyCommissioner of Labour before the Magistrate was that section 8of the Payment of Gratuity Act contemplated an inquiry being held,notice of which should be given to the defaulter together with anopportunity for him to satisfy the Commissioner that the amount isnot payable by way of gratuity. It was then submitted that once acertificate is filed by the Commissioner after such inquiry in order torecover the sums specified in proceedings taken before theMagistrate that it was not open to the defaulter to show cause thatthe sums specified in the certificate is not due.
The learned Magistrate after consideration of the submissions madeon behalf of the Petitioner and the Deputy Commissioner of Labourheld that the only cause that the Petitioner could have shown wasto establish:
that the Petitioner was not the person named as the defaulterin the certificate,
that he has paid the amount specified in the certificate,
that the defaulter was not resident within the jurisdiction of theMagistrate's court,
and refused application made on behalf of the Petitioner to showcause that a part of the whole of the sums mentioned in thecertificates were not due or that the sums so specified wereincorrectly calculated.
The Petitioner seeks to canvass the correctness of the order madeby the Magistrate refusing the application made on behalf of thePetitioner to show cause that the sums specified in the certificatewere not due or that they were incorrectly calculated.
Section 8 of the Payment of Gratuity Act No. 12 of 1983 reads asfollows: 1
(1) – Where any default is made in the Payment of any sum dueas gratuity under this Act of where the gratuity due under thisAct cannot be recovered under the provisions of section 4 orunder the provisions of section 17(5) of the Land Acquisition Act,
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the Commissioner may issue a certificate after such inquiry ashe may deem necessary, stating the sum due as gratuity andthe name and place of residence of the defaulter, to theMagistrate having jurisdiction in the division in which the estateor establishment is situate and the Magistrate shall, thereupon,summon the defaulter before him to show cause why furtherproceedings for the recovery of the sums due as gratuity underthis Act should not be taken against him and in default ofsufficient cause being shown the sum in default shall be deemedto be a fine imposed by a sentence of the Magistrate on suchdefaulter for an offence punishable by fine or not punishable withimprisonment. . .
Sub Section 2 to section 8 states that the Commissioner’s certificateshall be prima facie evidence that the amount due under this Actfrom the defaulter has been duly calculated, and that the amount isin default.
Learned counsel fo the Petitioner submitted that unlike in the caseof the recovery provisions under sections 130 of the Inland RevenueAct, section 59(4) of the Co-operative Societies Law, section 28(3)of the Employee"s Trust Fund Act and section 38(2) of theEmployee's Provident Fund Act where the correctness of theparticulars given in the certificates cannot be examined or questionedby the learned Magistrate, the working of section 8(2) of the Paymentof Gratuity Act is different and by stating the Commissioner'scertificate *shall be prime facie evidence" that the amount due underthis Act from the defaulter has been duly calculated, and that theamount is in default the legislature intended by clear and unequivocalterms to permit a defaulter named in the certificates filed before aMagistrate to show cause either by leading evidence or otherwisethat the sums mentioned in the certificate was not due or had beenincorrectly calculated. I
I am inclined to agree with this contention of the learned counselfor the Petitioner. “Prima facie evidence is not conclusive evidence,it is open to the opposing party to rebut that evidence by provingthe contrary. G. L. Peries – Law of Evidence in Sri Lanka 1974edition at page 31 dealing with prima facie evidence and conclusiveevidence states thus” The evidence adduced by a party in supportof a fact in issue is said to be prima facie evidence when it issufficiently weighty to entitle a reasonable man to decide the issue
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in his favour, aitnough a reasonable man need not necessarily doso. Prima facie evidence in its usual signification denotes prima facieproof of an issue, the burden of proving which is on the party givingthat evidence. However the distinguishing characteristic of prima facieevidence is that it leaves room for the other party to displace theeffect of such evidence by offering further evidence of an inconsistentor contradictory nature. It is only in the absence of further evidencefrom the other side that prima facie evidence enables the party givingit to discharge its onus".
While the effect of prima facie evidence is tentative, conclusiveevidence is characterised by finality, there is no opportunity for therebuttal of conclusive evidence. Thus it is clear on a reading ofsubsection 2 that the Commissioner's certificate is to be regarded(only as prima facie evidence) that the amount is due under the Actfrom the defaulter and has been duly calculated and that the amountis in default. Thus the legislature by using the words that thecertificate is only prima facie evidence by unequivocal and unambi-guous language has made provision for the defaulter to show causeand displace the effect of the prima facie evidence by offering furtherevidence of an inconsistent or contradictory nature.
The learned State Counsel appearing for the 1st and 3rdRespondents and the learned counsel appearing for the 2ndRespondent (workmen concerned) contended that use of the words"the Magistrate shall thereupon summon the defaulter before him toshow cause why further proceedings for the recovery of the sum dueshould not be taken'1 limits the scope of the cause that can be shownby the defaulter. They contended that the limits of the cause thatcould be shown as to why further proceedings should not be takenhas been laid down by the Supreme court in S.H.L. Mohideen V.The Assistant Commissioner of Co-operative Development ofKalmunai (1) argued on 4.4.77 & decided on 13.3.77 and inS.D.Danny V Commissioner of Labour (2) argued on 1.9.88 anddecided 16.12.88. With respect whilst I agree with the decisions citedby learned counsel for the Respondents the sections dealing withthe recovery provision in the statutes that came up for considerationwere different. The 1st of those cases were under the provisions ofsection 59(4) of the Co-operative Societies Law. Section 59(6) of thatlaw stated that “Nothing in this section shall authorise or require aDistrict Court or a Magistrate Court thereunder to consider, examine
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or decide the correctness of any statement in the certificate of theRegistrar, and the latter case was one where recovery proceedingswere taken under section 38(2) of the Employee's Provident FundAct and section 38(3) of the said Act states "the correctness of anystatement of the certificate issued by the Commissioner for thepurpose of this section shall not be called in question or examinedby the court in any proceedings under this section and accordinglynothing in this section shall authorise the court to consider or decidethe correctness of any statement in such certificate and theCommissioner's certificate shall be sufficient evidence that the amountdue under this Act from the defaulting employer has been dulycalculated and that such amount is in default". Similar provision isalso made in section 130(2) of the Inland Revenue Act and section28(4) of the Employee's Trust Fund Act where finality andconclusiveness are given by the statute to the particulars stated inthe certificates for the recovery of sums due thereunder. In theinstant case however as stated above the particulars given in thecertificate is only prima facie evidence of the matters stated therinand it is in my view open to the defaulter to contravert the positionthat the amount is due or that the amount has been incorrectlycalculated by leading oral or documentary evidence.
Thus I set aside the order made by the learned Magistrate on14.12.1990 in case No. 84430/89 pertaining to application C.A.46/91& 85865, pertaining to C.A.47/91 and direct the learned Magistrateto permit the Petitioner to show cause by leading evidence orotherwise that the amounts referred to in the certificates or any partthereof are not due. There will be no costs.
Application allowed.