Times Of Ceylon Ltd. V. Nidahas Karmika Saha Velanda Sevaka Vurthiya Samitiya

1960 Present : T. S. Fernando, J.

THE TIMES OF CEYLON LTD., Appellant, and THE NIDAHAS KARMIKA
SAHA VELANDA SEVAKA VURTHIYA SAMITIYA,
Respondent

S. C. 6-LABOUR TRIBUNAL CASE 155 OF 1959

In the matter of an appeal under Section 31 D (2) of the Industrial Disputes
Art, No. 43 of 1950

Industrial Disputes Act No. 43 of 1950, as amended by Act No. 62 of 1957-" Workman"-Distinction between workman and independent contractor-Section 41.

The definition of " workman " in section 47 of the Industrial Disputes Act does not cover an independent contractor.

Z was a delivery peon who was under contract with a newspaper company to deliver copies of that company's newspapers to certain subscribers in Colombo who had paid subscriptions to the company for the newspapers (including the delivery thereof). The contract imposed on Z the terms to be found in the following clauses :-

" (1) You Will be paid a commission of -/02 1/2 cents for every copy delivered. (2) Failure to deliver a paper will result in your having to pay the value of the paper.

(3) In case you are unable to call for your papers this office must be notified or a substitute sent.

(4) You will be held responsible for all delivery errors.

(5) You will collect your papers at the times stimulated by the Circulation Manager.

(6) Your Commission will be paid once a month.

(7) Failure to call for copies for distribution, Without due notice, or nondelivery of copies taken will result in the termination of your contract."

Held, that, as the true relationship between Z and the company was one approximating that between a hirer and an independent contractor, Z was not a workman within the meaning of the Industrial Disputes Act.

APPEAL under section 31 of the Industrial Disputes Act, No. 43 of 1950.

H. V. Perera, Q.G., with L. E. J. Fernando, for the appellant.

S. P. Amarasingham, with F. X. J. Rasanayagam, for the applicant-respondent.

Cur. adv. vult.

August 31, 1960. T. S. FERNANDO, J.-

The sole question that arises on this appeal is whether a person who has been described in the proceedings as a delivery peon who was under contract with a newspaper company to deliver copies of that company's newspapers to certain subscribers in Colombo who had paid subscriptions to the company for the newspapers (including delivery thereof) is a workman within the meaning of the Industrial Disputes Act, No. 43 of 1950. The determination of this seemingly simple question has caused me a great deal of anxiety and the only consolation I can seek in the situation in which I have found myself is the discovery that in the past judges who have had to decide whether a person is a workman or employee or servant as defined in various statutes as distinguished from an ' independent contractor have experienced difficulty and similar anxiety. The question before me arises in the following circumstances. The Industrial Disputes (Amendment) Act, No. 62 of 1957, provides for the establishment, for the purposes of the Industrial Disputes Act, No. 43 of 1950, of Labour Tribunals, each such Tribunal consisting of one person. Applications to a Labour Tribunal for relief or redress in respect, inter alia, of the termination by an employer of a workman's services were provided for by the Amendment Act which empowered the Tribunal, after inquiry, to make such order as may appear to the Tribunal to be just and equitable. Subject to a right of appeal to the Supreme Court on a question of law, the order of a Labour Tribunal is declared to be final and one that shall not be questioned in any court.-(see new sections 31A, 31B, 310, and 31D.)

Section 47 of the Industrial Disputes Act, No. 43 of 1950, as amended by Act No. 62 of 1957, defines workman as meaning " any person who has entered into or works under a contract with an employer in any capacity, whether the contract is expressed or i

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