Legal Services and Laws of Sri Lanka

SLR-1982 Vol.2-P595

SLR - 1982 Vol.2, Page No - 595


S.C. APPEALS 10/81 AND 13/81.
C.A. 183 AND 185 OF 1978.
L.T. 12/6759/77 AND 13/6772/77
JUNE 22, 1982.

Industrial Dispute - Industrial Disputes Act, section 31B - Regulations15and57-Constitutionof1972,Article11
Language of Courts (Special Provision) Law No. 14 of 1973.
The petitioners were employees of the respondent who terminatedtheirservices.TheLabourTribunalheldthattheir
termination was unjustified and awarded them back wages in lieu of reinstatement and compensation to both.

On appeal to the Court of Appeal the following findings were affirmed -

1. unjust termination
2. compensation in lieu of reinstatement

and the order relating to back wages was deleted.

Both parties appealed against these orders to the Supreme Court.

It was contended on behalf of the employees that the application should bedismissedinlimineasthelanguageofthe
application was not Sinhala.
Held -

(1)The word 'pleadings' in Article 11(1) of Constitution of 1972 doesnotincludeanapplicationforreliefor
redress under section 31(B) of Industrial

Disputes Act. Nor does Article 11(1) preclude an application being made to the Labour Tribunal in English.
(2)No prejudice was caused to the other party by having the proceedings in English.
(3)When a tribunal is called upon to determine compensation it should take into account back wage's lostbutitis
not entitled to make a separate award of back pay in addition to compensation.

Cases referred to:

(1) Dixon v. Calcraft (1892) 1. Q.B. 458, 462, 463

(2) Nelungaloo Pty Ltd .v. The Commonwealth (1947-1948) 75 C.L.R. 495,569,571.

APPEAL from judgment of the Court of Appeal.

H.L. de Silva with Mark Fernando for appellant in 10/81 and 11/81 and for respondent in 12/81 and 13/81.

R. Weerakoon for respondent in 10/81 and 11/81 and for appellant in 12/81 and 13/81.

September 3, 1982


These appeals arise out of applications for relief founded on unjust termination of theirservicesmadebytwoemployees
(M.B. Jayasinghe and Upali Ariyachandra) against their employer The Associated Newspapers of Ceylon Ltd. Inbothcasesthe
President of the Labour Tribunal held that the termination was unjustified and by way of relief ordered thepaymentofRs.
19,000/- as back wages and Rs. 68,400/- as compensation in lieu of reinstatement to M.B. Jayasinghe (LT 12/6759/77)andRs.
12,900/- as back wages and Rs. 46,440/- as compensation in lieu of reinstatement to Upali Ariyachandra (L.T. 13/6772/77).On
appeals being preferred against these orders the Court of Appeal affirmed the finding of unjust termination ofservicesand
the payment of compensation in lieu of reinstatement ordered by the Labour Tribunal but deleted theorderrelatingtothe
payment of back wages in both cases. In both these cases the newspaper company has appealed to this Court from the ordersof
the Court of Appeal in respect of termination of services and the award of compensation. Theseareappeals10and11of
1981. M.B. Jayasinghe and Upali Ariyachandra have also appealed', to this Court in respect of the deletion of the ordersfor
the payment of back wages. These are appeals 12 and 13 respectively of 1981. The appealswereconsideredtogetherasthe
same points were involved.
In the two appeals by the newspaper Company we are called upon to decide whether an applicationforreliefintheLabour
Tribunal made under section 31B of the Industrial Disputes Act during the period when the Constitution of Sri Lankaof1972
was in operation (from 22nd May 1972 until its replacement by the Constitution of 1978) is null and void if made inEnglish.
Article11 (1) of the Constitution for 1972 stipulated inter alia that thelanguageoftribunalsestablishedunderthe
Industrial Disputes Act should be Sinhala and accordingly their records including pleadings, proceedings, judgment s,orders
and records of all judicial and ministerial acts should be in Sinhala. In the Northern and Eastern provinces howeverparties
and applicants were. permitted to submit their pleadings, applications motions and petitionsinTamilbuteventhenthe
Tribunal was under a duty to cause a Sinhala translation to be made for the purposes of the record (Article11(3)ofthe
Constitution of 1972, and the Language of the Courts (Special Provisions) LawNo.14of1973).Article11(6)ofthe
Constitution of 1972 empowered the Minister of Justice to authorise Presidents of Labour Tribunalsandpleaderstousea
language other than Sinhala or Tamil but this of course did not apply to the parties themselves.

Learned Senior Counsel for the appellant submitted that the applications for relief made by therespondentstotheLabour
Tribunal upon which the proceedings we are called upon to review weretakenarepleadingsandthereforehadtobein
Sinhala. The applications in the instant case had been made in English and should not have beentakencognizanceof.They
should have been rejected in limine as they contravened an imperative provision of the Constitution.

The validity of the contention that the applications for relief are bad in law and nullity must beexaminedwithreference
to the provisions of the Industrial Disputes Act relating to the making of application for relief or redresstotheLabour
Tribunal. Section 31B (1) of this Act stiputates that a workman or trade union on behalf of a workmanwhoisamemberof
that union may make an application in writing to a Labour Tribunal for relief or redress.Theprocedureislaiddownin
Regulation 15 of the Industrial Disputes Regulations, 1958 made by the Minister and approved by the Senate and theHouseof
Representatives and published in Government Gazette No.11688 of 2.3.1959. It must be observedthattheseRegulationshave
been made in compliance with the provisions of section 39 of the Industrial Disputes Actandarethereforeasvalidand
effectual as if they were enacted in the main Industrial Disputes Act. Regulation 15 reads as follows:

"Every application under section 31B of the Act shall be substantially in Form D set out in theFirstScheduleheretoand
shall be sent to the Secretary in duplicate".

Form D provides inter alia for the application to be made under the signature of the applicant. Where the Union to whichthe
workman belongs makes the application, it must be signed by the President or Secretary see Regulation 17.

The combined effect of all these provisions is to make it imperative that an application for relief or redress byaworkman
should be in writing and be signed by him. The expression " pleading" is generally understood as including the statementsin
writing of the petition, application, claim or demand of any plaintiff, petitioner or applicant and ofthedefencethereto
and counterclaim if any of the defendant or respondentandthereplytothecounterclaimandthereforeitwouldbe
imperative that these should be in Sinhala where Tamil is not permitted.Butwherethepetition,application,claimor
demand is expected by law to be made in writing by the applicant himselfratherthanbyhispleaderthenthelanguage
requirement cannot be insisted upon for the applicant himself cannot be expected totakepersonalresponsibilityforthe
contents of his petition, application, claim or demand if he is required to make it in alanguagewith,whichheisnot
sufficiently conversant.

In the election petition Appeals No. 2 of 1977 (Medawachchiya), No. 3 of1977(Kotmale)andNo.2of1978(Anamaduwa)
Consolidated as one appeal - (S.C. Minutes of 7.8.1978) a Divisional Bench of five judges of theformerSupremeCourthad
occasion to consider the legal provisions relating to language in the Constitutionof1972incaseswheretheelection
petition had been filed in English. Referring particularly to the stipulations in paragraphs (c) and (d) ofsection80Bof
the Ceylon (Parliamentary Elections) Order in, Council, 1946, that an election petition should containaconcisestatement
of the material facts on which the petitioner relies and be signed by him vis-a-vis the provision in Article 11 (1)ofthe'
Constitution of 1972, that pleadings should be in Sinhala,, Samarawickrema, J. (with whom the other Judges agreed) statedas

Having regard to the provision in section 80B (e) and (d), it, would appear that the requirementthatthepetitionshould
bell, signed by all the petitioners is made for the reason that they are required to take responsibility forthestatements
contained in the petition. In view of this, it would appear that if the provision of section 80B aloneapplied,apetition
should be in a language which is understood by the petitioners. Article 11(1) of theConstitution,however,providesthat
pleadings should be in Sinhala. The word 'pleadings' is one of wide connotation and it isacanonofinterpretationthat
words which are general and not precise are to be restricted to the fitness of the matter. I am, therefore, of the viewthat
the word "pleadings" in Article 11(1) would not includeanelectionpetitionwhichisrequiredtobesignedbythe
petitioners, obviously as an indication that they take responsibility for the statements contained therein, shouldbeina
language understood by the petitioners."

With great respect I would adopt the reasoning of Samarawickrema, J. It isalegalrequirementthatanapplicationfor
relief or redress under section 31B of the Industrial Disputes Act must be signed bytheapplicant.Thelawexpectsthe
applicant to take responsibility for the material statedinhisapplicationuponwhichheclaimsrelieforredress.
Therefore he must be permitted to make it in the languageheprefers.Theword"pleadings"inArticles11(1)ofthe
Constitution of 1972 does not include an application for relief or redress under section 31B of the Industrial DisputesAct.
Nor does the requirement of Article 11(1) of the Constitution of 1972 that the language of theTribunalshouldbeSinhala
and its records kept in that language preclude an application being made to it inEnglish.Theresponsibilityisonthe
Tribunal to cause a Sinhala translation to be made for the record. If this was not done the applicant cannotbefaultedor
prejudiced. In fact Samarawickrema, J. pointed-out that Article 11 of the Constitution of 1972, carries noprovisionasto
the effect of non-compliance with it and accordingly where no prejudice has beencausedthefailureoftheTribunalto
comply with the language requirements of Article 11(1) of the Constitution will result only in an irregularity andwillnot
be fatal. With t his conclusion of Samarawickrema, J.,Iamagaininrespectfulagreement.Intheinstantcasethe
respondent too filed his objections in English and obviously the proceedings were better understood byeverybodyforbeing
in that language. No prejudice was caused to the parties least of all to the Newspaper Company.

I will now turn to the question whether back wages could be awarded along withcompensationasanalternativereliefto
reinstatement. The relief of reinstatement is granted where the contract ofemployment has beenunjustifiablybreachedby
the employer. Back wages can then be awarded on the basis of an unbroken contract of employment. Ofcoursethequantumof
back wages and the period for which they will be awarded will depend onthecircumstancesofeachparticularcase.For
instance if the employee had obtained other employment after the date of termination that will bearelevantcircumstance.
But when the Tribunal orders compensation can it also order back wages? The purpose of compensation is to place in thehands
of the victim what he has lost so far as money can do it. It connotes money equivalence. It is a recompense or indemnityfor
loss. It must be remembered that there is a distinction between compensation and damages though there are occasions whenthe
two words are synonymous. As a concept compensation is remedial but damages can be enhanced andpunitiveorbediminished
and even nominal. Damages are not always related to the actual money equivalent of the loss - (seethediscussionbyLord
Esher, M.R. in Dixon v Calcraft (1) and by Dixon, J. (later C.J.) in Nelungaloo, Pty. Ltd. v The Commonwealth. (2)Whatthe
Industrial Disputes Act speaks of is compensation as an alternative to reinstatement (ss. 31B(b)(c)).Toorderbackwages
and compensation as an alternative to reinstatement would be to duplicate one factor which should enter into thecomputation
of compensation. One among the several facto which should enter into the computation of compensation in the type ofcasewe
are considering is the period of unemployment and that would include back wages. The object of the exercise should betoas
ascertain as far as possible the money equivalent of the loss employment from the date of unjust dismissal.Thecalculation
must depend on the particular circumstances of each case. Wages ca provide a usefulunitforthecalculationbutitis
neither possible nor desirable to lay down a formula for application inallcases,WhenaTribunaliscalleduponto
determine compensation it should take into account the back wages lost but it is not entitled to ma a separate award ofback
pay in addition to compensation. Hen the back wages awarded by the Tribunal were rightly struck off b the Court of Appeal.

I am therefore of the view that the judgment of the Court. Appeal should be affirmed. The appeals of the appellantsaswell
of the respondent are dismissed. There will be no costs as no party has been completely successful.

Page 601
SAMARAKOON, C.J. - I agree.
WANASUNDERA, J. - I agree.
Appeal dismissed.

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