Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Jayantha Jayasuriya, CJ and Murdu N.B. Fernando and S. Thurairaja, JJ., allowed an appeal which was filed being aggrieved by the order of the High Court in a matter of violation of fundamental rights alleging unlawful termination of employment.

Background:

The employee Applicant – Appellant – Appellant (Employee – Appellant) was recruited by Central Engineering Consultancy Bureau i.e. Respondent – Respondent – Respondent (Employer – Respondent) as a Civil Engineer Grade D1, in January 1986. The Employee – Appellant was suspended on a disciplinary issue on the 26th of August 2011, was found guilty upon the conclusion of the disciplinary inquiry and was terminated from employment on the 14th of October 2013. Being aggrieved with the termination of employment, the Employee – Appellant had filed a fundamental rights application in the Supreme Court against the Employer – Respondent alleging that the termination of his services was a breach of his fundamental rights enshrined in Article 12(1), 12(2) and 14(1) (g) of the Constitution. Subsequently the Employee – Appellant had filed an application against the Employer – Respondent in the Labour Tribunal of Colombo on the 17-03-2014 challenging the termination of his services. The Employer – Respondent filed its answer and raised the preliminary objection under Section 31 B (5) of the Industrial Disputes Act No.43 of 1950, that the Employee – Appellant could not maintain an application before the Labour Tribunal due to the fact that he had first filed a fundamental rights application before the Supreme Court. The preliminary objection was upheld by the Labour Tribunal and the Employee – Appellant’s application was dismissed. Being dissatisfied with the order the Employee – Appellant appealed to the High Court, it upheld the order of the Labour Tribunal and dismissed the appeal of the Employee – Appellant. Being aggrieved with the said Order of the High Court, the Employee – Appellant preferred an application for leave to appeal to the Supreme Court and leave to appeal was granted on the questions of law.

The Counsel for the Employer – Respondent, relying on Section 31B (5), submitted that the Employee – Appellant can challenge the termination of his services in several forums including the Labour Tribunal, District Court and Supreme Court, but he cannot seek legal remedies from multiple forums in respect of the same issue / dispute.

Issue:

The issue of law to be decided in this appeal was whether the provisions of section 31B (5) of the Industrial Disputes Act No. 43 of 1950, as amended, debar the Employee – Appellant from maintaining his application to the Labour Tribunal against the termination of his services by the Employer – Respondent claiming that the said termination of his services violated his fundamental rights guaranteed by Articles 12 (1), 12 (2) and 14 (1) (g) of the Constitution.

Decision:

The Court interpreted Part IV A of the Act which contains the provisions relating to Labour Tribunals, including section 31B (5). Part IVA was introduced by the Industrial Disputes (Amendment) Act No. 62 of 1957. Part IVA initially had four sections – i.e.: sections 31A, 31B, 31C and 31D. These sections have been subjected to a few amendments since 1957. Further, new sections 31DD, 31DDD [later repealed] and 31DDDD were added to Part IVA, by other Amendments to the Industrial Disputes Act and held that,

a workman who chooses not to avail himself of the procedure available under Part IVA of the Act in the first instance, but later realizes that he should resort to the provisions of Part IVA of the Act, should be penalized by debarring him from doing so unless he has received a determination from that other forum. I would add that debarring a workman from having access to a Labour Tribunal merely because he has, perhaps misguidedly, previously decided to refer his claim to another forum but has not received a determination from that forum, would go against the clear intention of the Legislature when it introduced Labour Tribunals in 1957.”

The Court while allowing the appeal relied on the Supreme Court judgment of Gamaethige v. Siriwardene, (1988 II CALR 62) where it was observed that exercise of the Supreme Court’s fundamental rights jurisdiction “cannot be equated to the prerogative writs”. This statement highlighted the even wider gulf between the nature of a fundamental rights application and an application to a Labour Tribunal. In view of these essential differences, it was said that the workman-appellant’s fundamental rights application and his application to the Labour Tribunal cover the same or similar ground and have the same or similar scope.

Secondly, it appeared that the Employee-Appellant’s fundamental rights application and his application to the Labour Tribunal sought similar substantive reliefs.

Thirdly, whether he has been subjected to unequal treatment or been denied the equal protection of the law or been made the victim of unreasonable or arbitrary or mala fide action on the part of the employer-respondent [which is said to be an organ or entity of the State]. The termination of the workman-appellant’s services is only a part of the issue before the Supreme Court and is looked at by this Court in the context of the questions described in the preceding sentence. On the other hand, the application to the Labour Tribunal will be decided solely on the core issue of whether the termination of services was just and equitable.

Fourthly, there was a significant disparity between the procedure followed by this Court in entertaining and determining the workman-appellant’s fundamental rights application and the procedure followed by a Labour Tribunal when determining the application made to it by the Employee-Appellant. The fundamental rights application will proceed to a full hearing only if the Employee-Appellant is first able to make out a prima facie case that his fundamental rights have been violated by the Employer-Respondent and is granted Leave to Proceed with the fundamental rights application.

The Court set aside the decision of the Labour Court and the High Court and directed the Labour Court to rehear the application.[W.K.P.I. Rodrigo v. Central Engineering Consultancy Bureau, SC Appeal No: 228 of 2017, decided on 02-10-2020]


Suchita Shukla, Editorial Assitant has put this story together

Business NewsNews

The concept of fixed term employment defines the tenure of employment as well as other associated conditions of service and remunerations, which are provided to regular employees under various labour laws. The government has extended the facility of hiring workers on fixed term employment to all sectors for improving the ease of doing business for players intending to hire people for completing specified projects, tasks or orders. The facility of fixed term employment was introduced in apparel manufacturing sector in Industrial Employment (Standing Order ) Act in October, 2016.

[Key highlights] As per a notification issued by the labour ministry to amend the Order :-

  • The words “fixed term employment in apparel manufacturing sector” will be replaced by “fixed term employment” meaning that facility would be available/extended to all sectors.
  • The worker employed for short period will get better working and service conditions as compared to a contract worker.
  • No notice of termination of employment shall be necessary in case of temporary and badli workmen.
  • The fixed term employment is defined as a workman employed on a contract basis for a fixed period. Thus the services of the workman will be automatically terminated as a result of non-renewal of contract between the employer and the workman concerned.
  • A fixed term worker would not be entitled to any notice or pay in lieu of that, if his services are terminated or in case of non-renewal of contract or expiry of term of employment.
  • Also a temporary workmen who has completed 3 months of continuous service, shall be given 2 weeks notice of the intention to terminate his employment if such termination is not in accordance with the terms of the contract. In case he has not completed 3 months of continuous service, he shall be informed for the reasons for termination in writing.
  • Any services of temporary nature shall not be terminated as punishment unless the employee has been given an opportunity of explaining the charges of misconduct alleged against him.
  • A separation of service of the workman as a result of non-renewal of the contract of employment between the employer and workman concerned shall not be construed as termination of employment. This facility will aid the industry to employ worker in sectors which are of seasonal nature and witness fluctuation of demand and hence requires flexibility in employing workers.
  • Under the fixed term employment the working conditions in terms of working hours, wages, allowances and other statutory dues would be at par with a permanent workmen and no less than that.
  • A fixed term worker will also be eligible for all statutory benefits available to a permanent workman proportionately according to the period of service rendered by him even though his period of employment does not extend to the qualifying period of employment required in the statute.
  • The employer can directly hire a worker for a fixed term without mediation of any contractor.

[Source: The Economic Times]

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