TRUSTEES OF THE CEYLON SCHOOL FOR THE DEAF AND BLIND VS. COMMISSIONER OF LABOUR AND OTHERS

TRUSTEES OF THE CEYLON SCHOOL FOR THE DEAF AND
BLIND VS. COMMISSIONER OF LABOUR AND OTHERS

COURT OF APPEAL
SRISKANDARAJAH, J.
CA 971/2007
FEBRUARY 18,2009
MARCH 20,2009
APRIL 29, 2009
MAY 15, 2009

Writ of Certiorari - Payment of Gratuity Act 12 of 1983 - Section 6 (2), Section 7 - Retirement - Pensionable service? Entitlement to gratuity payments - salary paid by State - Changes made to the salary after service period of employee - liability to pay arrears? Trust Ordinance - Section 114.

The petitioner an approved charity employed the 4th respondent - a government teacher in January 1969 as a teacher - after 33 years the 4th respondent retired in April 2002. The respondent received a pension from the State. The respondent was promoted in April 1997 and his salary revised with arrears to be paid with effect from September 1999. This was communicated in December 2005. The Commissioner of Labour informed the petitioner to pay gratuity and the arrears of the salary. The petitioner contended that, they are not entitled in law to make any payment for gratuity to a teacher whose salary was paid by the State, and that, they are not responsible for changes made to the employees positionlsalary after the service period of the employee had ended.

Held

(1) In view of Section 7 as the 4th respondent was in the contributing pension scheme, he is not exempted by Section 7 of the Gratuity Act.

(2) Even though the notification to pay the enhanced salary was in 2005 - three years after retirement, the 4Ih respondent was promoted with effect from April 1997 - and the notification to pay

the arrears from September 1999 is in order. Even though the notification came after retirement the 4th respondent's monthly salary was revised and his salary was deemed to have been in effect from September 1999. The last salary has to be considered on the basis of the revised salary.

APPLICATION for a Writ of Certiorari.

Case referred to:-

Hindu Women's Society Ltd and others us. Commissioner General of Labour and others - SC 18812007 - SCM 1.10.2007

M. A. Sumanthiran with Buddhinee Herath forpetitioner

Yuresha de Silva SC for 1- 3 respondents

Hemantha Situge with M. K. P. Chandralal for 4th respondent.

September 03 2009

SRISKANDARAJAH, J.

    The Petitioner is an approved charity incorporated under Section 114 of the Trust Ordinance with the aim of providing both academic and vocational education for deaf and blind children. The 4th Respondent a government teacher was recruited on the 15th of January 1969 to the Petitioner's School. He worked in the capacity of a teacher for 33 years with the Petitioner and retired from service on the 21st of April 2002. It is admitted by all parties to this application that the 4th Respondent's salary was paid by the government and he is receiving a pension from the government. The Position of the Petitioner is that as the 4" Respondent was in a pensionable service and after retirement he is receiving a pension, he is not entitled to any gratuity payments as per the payment of Gratuity Act No. 12 of 1983 but the gratuity payment made by the Petitioner to the 4th Respondent is a voluntary payment. The Learned State Counsel who appeared for

the 1st and 2nd Respondents (the Commissioner and the Assistant Commissioner of Labour) brought to the notice of this court the Supreme Court case; The Hindu Women's Society Limited and Another v. The Commissioner General of Labour and Nine others(1) In this case the Commissioner General of Labour has given an undertaking that as the respondent  is drawing a pension from the Government on the basis of an award made by the Director of Pension he would withdraw the notification marked P30, which is a notice issued under the Gratuity Act.

    The Petitioner submitted that without prejudice to the above submissions the Petitioner made a paym

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