Stanley Perera V. Yoosoof Sah

1963 Present : Basnayake, C. J., Abeyesundere, J., and G. P. A. Silva, J.

STANLEY J. PERERA, Appellant, and YOOSOOF-SAH, Respondent

S. C. 559/62-M. C. Colombo, 10459

Industrial dispute-Non-employment of a workman-Power of Court to order compen­sation to be paid to the workman-Scope-Industrial Disputes Act, as amended by Acts Nos. 25 of 1956, 14 of 1957 and 62 of 1957, ss. 33, 40 (1) (a), 41, 43 (1).

Although, under section 33 of the Industrial Disputes Act, an Industrial Court can order a workman to be reinstated in service and, as an alternative to his reinstatement, payment of compensation to him, it has no power to order the payment of compensation without a decision as to reinstatement. Payment of compensation being an alternative to reinstatement the former cannot exist independently. It can only exist as an alternative to the latter.

APPEAL from an order of the Magistrate's Court, Colombo.

H. W. Jayewardene, Q. C., with L. Kadirgamar and L. C. Seneviratne, for Accused-Appellant.

R. S. Wanasundere, Crown Counsel, for Attorney-General.

February 15, 1963. BASNAYAKE, C. J .-

The appellant Stanley J. Perera, a director of Taos Limited, was tried on the following charge and found guilty :-

" You, Stanley J. Perera, being a Director of Taos Ltd., are hereby charged that Taos Ltd., did at Colombo within the jurisdiction of this Court, in contravention of section 40 (1) (a) of the Industrial Disputes Act, No. 43 of 1950 as amended by Industrial Disputes (Amendment) Acts, Nos. 25 of 1956, 14 of 1957 and 62 of 1957 (hereinafter referred to as 'the said Act') fail to comply with the terms to wit, clause 8 of an Award made by an Industrial Court and published in Government Gazette No. 12,662 of September 15, 1961, requiring the aforesaid Taos Ltd., to make payment to the workers referred to in the said Award, the sums of money due to them by way of compensation, within the period prescribed by such award, to wit, within three weeks from the 15th September, 1961, and that you being a Director of the aforesaid Taos Ltd., have thereby committed an offence punishable under section 43 (1) read with section 41 of the said Act."

This appeal is from that finding. Shortly the facts are as follows :- An industrial dispute arose between the United Engineering Workers' Union and Taos Limited of which the appellant was a director. The matter in dispute is thus stated in the reference made by the Minister on 7th February 1961 under; section 4 (2) of the Industrial Disputes Act :

" The matter in dispute between the United Engineering Workers' Union and Taos Limited, Kew Road, Colombo 2, is whether the non-employment of the following workers is justified and to what relief they are entitled to. (The names of the workers are appended.)"

On 31st August 1961 Mr P. O. Fernando, a Judge of the Industrial Court at Colombo made his award which was in terms of section 25 (1) of the Act published in Gazette No. 12,662 of September 15, 1961. The 8th clause of the award reads-

" When an employee participates in a strike he is using a fundamental right. He does not commit any offence when he takes part in a strike and an employer is not justified in dismissing a worker merely because he absents himself in furtherance of a strike. Action against a striker could be taken by an employer only when the strike is illegal and totally unjustified or when a striker commits misconduct by assaulting or threatening workers or by damaging the property of the employer. This question has been discussed in a number of cases in India. Several cases have been cited including Smith Stanistreet Company v. Workers Union reported in 1953, I Labour Law Journal, 67, and Caltex v. its Workers reported in 1955, II Labour Law Journal, page 693. I consider that the management acted unreasonably in refusing to allow the employees to return to work on December 30th, and that their action amoun

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