KAHAWATTE PLANTATIONS PLC VS P.N. WILSON AND OTHERS - HON MAHINDA SAMAYAWARDHENA, J.

• Jurisdiction: Sri Lanka
• Case Number: 2019SCOA169C2016Y
• Citation: 2019SCOA169C2016Y
• Date: 13 February 2019
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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Kahawatte Plantations PLC

Vs

P.N. Wilson and Others - Hon Mahinda Samayawardhena, J.

CASE NO: CA/WRIT/169/2016

Kahawatte Plantations PLC.,
No. 52,
Maligawatte Road,
Colombo 10.

Petitioner
Vs.

1. P.N. Wilson,
No. 29,
Izadeen Janapadaya,
Weligampola,
Nawalapitiya.

2. The Commissioner General of Labour,
Labour Secretariat,
Narahenpita,
Colombo 5.

3. P. Navaratne,
No. 570/B/1,
Ekamuthu Mawatha,
Off Nugegoda Road,
Talawatugoda.

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4. Mr. John Seneviratne,
Minister of Labour and Trade Union Relations,
Labour Secretariet,
Colombo 5.

5. The Registrar,
Industrial Court,
9th Floor,
Labour Secretariat,
Colombo 5.

6. Barcaple Estate,
Ketabolla,
Nawalapitiya.

Respondents

Before : Mahinda Samayawardhena, J.

Counsel : Manoli Jinadasa for the Petitioner.
S.H.A. Mohamed for the 1st Respondent.

Decided on : 13.02.2019

Samayawardhena, J.

The petitioner filed this application seeking a writ of certiorari quashing the award (P10) made by the 3rd respondent arbitrator granting reliefs to the 1st respondent workman upon a reference of arbitration made by the 4th respondent Minister of Labour in terms of section 4(1) of the Industrial Disputes Act, No.43 of 1950, as amended.

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The dispute referred to was to consider whether the suspension of services of the 1st respondent by the petitioner effective from 02.04.1998 is unjustifiable, and, if it is, what reliefs he shall be entitled to.

There cannot be any dispute that the 1st respondent had a poor past record of service and had been inter alia suspended previously on several occasions.

He was, according to the petitioner, transferred on administrative reasons and not as a punishment, from the Middle Division of the estate to the Lower Division effective from 01.11.1997.1 He did not report for work at the Lower Division and instead filed an application in the Labour Tribunal alleging constructive termination of his services.

At the Labour Tribunal, the matter was settled on 23.02.1998 on the following terms:

(a) The petitioner agrees to provide the 1st respondent with work from 23.02.1998 in the Lower Division without a break in service. However, he is not entitled to back wages, but is, to holiday pay and incentives.

(b) The 1st respondent shall hand over the quarters he is presently occupying (in the Middle Division) to the Superintendent before 28.02.1998 and shall move to the new quarters (in the Lower Division) provided to him.

_____________
¹ Vide X6-A6.

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(c) The 1st respondent shall be paid Rs.8000/= as an ex gratia payment on or before 10.03.1998.2

Admittedly, the petitioner fulfilled his part of obligations in respect of (a) and (c) above on or before the due dates, but the 1st respondent did not do his part, i.e. (b) above, believe it or not, up to now-nearly 21 years from the date he was supposed to handover the quarters.

It is significant to note that, in the aforesaid Labour Tribunal settlement/order, the handing over of the Middle Division quarters and moving to the Lower Division quarters before 28.02.1998 was not subject to any condition. If there were such conditions which the parties were very serious of, they could have been incorporated in the settlement/order.

However, the 1st respondent after this settlement/order sent a letter dated 24.02.1998 to the petitioner demanding that new quarters in the Lower Division be repaired as specified in that letter for him to go into occupation.3

The petitioner has thereafter completed all the repairs by 28.03.1998 and informed the 1st respondent to move into the new quarters on 01.04.1998.4 But the 1st respondent did not do it because, according to the 1st respondent, although "the quarters is completely repaired, the quarters is still lacking the necessary furniture."5

____________
² Vide X6-A9.
³ Vide X6-A10.
⁴ Vide X6-A11.
⁵ Vide X6-A12.

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It is clear by then that the 1st respondent was not prepared to move into the Lower Division quarters, and hence the petitioner has sent the letter dated 02.04.1998 suspending the services of the 1st respondent with immediate effect "until you shift into the Lower Division quarters provided to you, along with the furniture of your present quarters on the Middle Division."

The 1st respondent neither handed over the Middle Division quarters nor shifted to the Lower Division quarters, if he says that inadequate furniture is the issue, with the furniture in the quarters which he is presently in occupation. Surely, he cannot expect more or better furniture in the new quarters than he was using in the old quarters, particularly when both the quarters are of the same type.6

Thereafter the Labour Department has made several attempts to settle the matter and as they were unsuccessful, the Labour Commissioner has closed the file on 10.09.2007.7

When matters remained as such, it is baffling to learn that the 4th respondent has again referred the matter unknown to the petitioner for arbitration in 2011.8 It is pursuant to that inquiry the arbitration award P10, which is being challenged in these proceedings, was made.

There is no dispute that the suspension of the 1st respondent came into being as a result of the defiance of the 1st respondent to hand over the Middle Division quarters and shift to the Lower Division quarters firstly as agreed before the Labour Tribunal by 28.02.1998 and secondly as directed by the petitioner by 01.04.1998.

_______________
⁶ Vide Labour Officer's Report marked X6-A15.
⁷ Vide X7-R17.
⁸ Vide X2.

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The 3rd respondent in the award says that "the management failed to provide a suitable quarters and pay the salary (during suspension)". This he says, if I understand correctly, predominantly on the Labour Officer's Report dated 19.11.20039 and the clauses 17 and 18 of the Collective Agreement.10

In the first place, is the 1st respondent entitled to quarters? In terms of the appointment letter, under "Quarters", it is stated that: "Quarters if and when provided are incidental to your appointment"11, which means, the 1st respondent cannot demand quarters as an entitlement.

The 3rd respondent in his award has taken up the position that, according to the Report of the Labour Officer, "the quarters were of sub-standard." The 3rd respondent has misdirected himself on facts on that point. "Sub-standard" when? The Labour Officer has compiled his Report based on the condition prevailed when he visited the place on 17.11.2003 and not on the condition prevailed when the 1st respondent was supposed to shift to the Lower Division quarters on 01.04.1998 at the latest. That means, more than five years have lapsed in between and therefore it is quite natural the surrounding area of the quarters as the Labour Officer has observed being overrun with weeds as
nobody was living there. According to that Report the 1st respondent has admitted the quarters being renovated by the petitioner (after the Labour Tribunal settlement).

______________
⁹ Vide X6-A15.
¹⁰ Vide X6-A25.
¹¹ Vide X6-A1 and X6-A2.

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The 3rd respondent says that "the new quarters offered had no water and toilet facilities." According to the Labour Officer's Report, water facility was not there when he went for the inspection, but the officer immediately thereafter mentions that there is evidence to confirm that water facility was there 5-6 years ago. That means, by the time the 1st respondent was supposed to move to the said quarters, water connection had been given. The explanation of the petitioner that, these being estate quarters, the management disconnects water facility in quarters which are unoccupied to avoid water being misused by other workers is acceptable.

Regarding toilet facilities, the 3rd respondent's finding that there are no toilet facilities in the new quarters is incorrect. According to the Labour Officer's Report, in the Middle Division quarters which the 1st respondent was earlier in occupation, the toilet was separated and not attached; but in the Lower Division quarters, the toilet is attached to the quarters. That means, the Lower Division quarters has better toilet facilities. Both toilets, according to the Report, have no doors.

The Labour Officer in his report has finally stated that more suitable quarters for an Assistant Field Officer such as the 1st respondent is the Lower Division quarters.

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There is another important matter to be mentioned regarding occupation of quarters. That is, after the services of the 1st respondent were suspended until he hands over the old quarters, the petitioner, instead of complying with it, had, admittedly, got some other labourers to occupy the old quarters on his behalf and left the old quarters.12 This arrogant behavior of the 1st respondent, to say the least, is intolerable and completely unwarranted. He has no right whatsoever to give the staff quarters to labourers to occupy. But the 3rd respondent in his award to my dismay has considered this matter also in favour of the 1st respondent when he says that "During the period of interdiction, applicant (the 1st respondent to this application) had given the quarters to a trusted person to look after who was working in the estate and once in a way he visited the house." The 1st respondent does not want the quarters nor does he want to hand it over to the management. Can an estate with a large number of labour force run in this fashion?

The 3rd respondent in the award has quoted section 2 of the Estates Quarters (Special Provisions) Act, No. 2 of 1971. It has no application to the present case as that section deals with the subject of "Period during which the right to occupy quarters subsists after the termination of employee's services." As the learned counsel for the 1st respondent admits the services of the 1st respondent were "never terminated".13

The 3rd respondent has quoted clauses 16 and 17 of the Collective Agreement14 may be to show that indefinite suspension without inquiry and without pay is in contravention of the Collective Agreement. It appears...