SHIHAR AND OTHERS

VS.

COMMISSIONER GENERAL OF LABOUR AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
OBEYESEKERE, J.
CA/WRIT/152/2018
AUGUST 28, 2020

Writs of certiorari and mandamus-Industrial Disputes Act, No. 43 of 1950, sections 48, 48A-Finality of the order of the Assistant Commissioner of Labour-Functus officio and exceptions

The 1st and 2nd petitioners had been employees of the 5th respondent company and the 3rd petitioner had been an employee of the 4th respondent company. Each of them had been paid a sum of money on account of gratuity and were laid off. They filed applications in the Labour Tribunal alleging unfair termination. After inquiry, the Labour Tribunal found that the petitioners had been unjustly terminated, and awarded them compensation. The Labour Tribunal treated the sums already paid to the petitioners as compensation and not gratuity, and directed that the said sums be deducted from the total compensation awarded. The 4th and 5th respondents' appeals to the High Court against these orders were dismissed. The judgments of the High Court made no reference to the payment of gratuity. The 4th and 5th respondents did not appeal to the Supreme Court against the judgments of the High Court.

The petitioners had separately complained to the Labour Department about non-payment of gratuity. The inquiry into these complaints was taken up by the 3rd respondent Assistant Commissioner of Labour after the dismissal of the appeals by the High Court. Following the inquiry, the 3rd respondent ordered payment of gratuity and surcharge by the 4th and 5th respondents to the petitioners. Without complying with the said orders or seeking judicial review, the 4th and 5th respondents moved the 3rd respondent to reconsider the orders. Thereafter, the 2nd respondent Deputy Commissioner of Labour informed the petitioners by letter P10 that no further action in relation to the complaints of the petitioners can be taken, as the 4th and 5th respondents had produced documents to prove that gratuity had been paid.

Being aggrieved by the decision in P10, the petitioners sought writs of certiorari and mandamus to quash the said decision and to enforce the orders made by the 3rd respondent. The application was not resisted by the 1st respondent Commissioner General of Labour.

Held :

1. The Industrial Disputes Act makes a distinction between the decisions of a Deputy or Assistant Commissioner of Labour and a Labour Officer. In terms of section 48, decisions of Deputy or Assistant Commissioners are equated to decisions of the Commissioner of Labour, whereas section 48A specifically provides that decisions of Labour Officers may be reviewed by the Commissioner of Labour.

2. Where decisions of public authorities affect the legal rights of people, the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The general rule is that once a decision is made by a public authority, such decision is final and cannot be varied, revoked or rescinded.

3. There are however well recognised exceptions to the above rule. One exception is where the power of review is provided for by the statute itself. Even in such a situation, the party prejudiced must be heard prior to any change in the decision. Other exceptions include the power to correct accidental errors and slips and where a decision has been obtained by fraud or fundamental mistake of fact.

4. A party who wishes to bring a decision of a public authority under any of the above exceptions has to satisfy a high threshold, and the public authority must exercise caution in resorting to such exceptions.

5. In the absence of any explanations, reasons and circumstances that prompted the 2nd respondent to issue P10, the decisions of the Assistant Commissioner of Labour must be treated as final. The 2nd respondent was thereafter func