Book review:

Insightful and well researched compilation

V. Vimalarajah Attorney at Law

continued from March 2

I find that there are a series of good judgments published in this Journal on several areas of law but I wish to, in the first instance focus attention on two landmark judgments of Supreme Court made recently - one on 05.02.2009 on assessment of compensation by a Labour Tribunal when termination of employment was held to be wrongful - The other on 01.06.2009 in relation to recovery of EPF.In the case of Nanayakara vs. Distilleries Co of Sri Lanka, PLC the Learned Tribunal made order stating that termination of employment was unjust and inequitable and ordered three months salary as compensation 3*8600= 25,800/= The applicant Nanayakkara appealed against the order of the Labour Tribunal to the High Court which dismissed the appeal. He appealed to Supreme Court- SC Appeal No 71/08.

Justice Asoka de Silva (now Chief Justice) with Justices Sripavan and Ekanayake agreeing set aside the order of the Labour Tribunal and High Court judgment and awarded 10 years salary as compensation taking into consideration his age at the time of termination of service - 45 years, his period of service of 21 years, the age of retirement 55 years, the period of time of - eleven years taken to conclude the inquiry before the Labour Tribunal, the age of the applicant - 56 years at the time the inquiry was concluded and the fact that there was no evidence to state that he was employed. There is no judicial unanimity in assessing compensation for loss of career among Labour Tribunals and Appellate Courts. This judgment of the Supreme Court establishes the principle that in determining the amount of compensation it is relevant to take into consideration the age of retirement of the applicant. This judgment serves as a recipe to Labour Tribunals and High Courts in computation of compensation.

The other important judgment in Industrial Law is that of Justice Shiranee Telakawardane with Justice S.N Silva CJ and Justice Sripavan agreeing in the case of K A Dayawathie Vs. D.S. Edirisinghe & others SC (FR) No. 24/08 decided on 01.06.2009. The issue in this case was the question of jurisdiction in relation to action by the Labour Dept. for recovery of EPF under the EPF Act.

The Supreme Court has held that the Commissioner of Labour has no jurisdiction or power under the EPF Act to file a certificate in the Magistrate Court in terms of Sec. 38(2) of the EPF Act without first proceeding under Sec.17 and thereafter under Sec.38(1) of the EPF Amendment Act. It is to be noted that the procedure for recovery of EPF for the last (38) thirty eight years will have to be discontinued now in view of this judgment. There has been a series of appeals and judgments on the certificate filed in Magistrate Court for recovery of EPF for more than thirty eight years but no appeal was filed on jurisdiction of Magistrate Court but appeals were mainly on what particulars the certificate should contain. Recovery procedure of EPF has now come to a grinding halt and several employers who are in arrears of EPF are in luck's way. The Labour Dept. is unable to proceed with the cases already filed in Magistrate Courts for recovery of EPF. Recovery of EPF procedure is now on the reverse gear.

There is another important judgment of Court of Appeal on Industrial Law which relates to the case of Fernando and others Vs. Commissioner of Labour and 3 others - CA (Writ application No. 1073/2003 decided on 09.12.2004 by Justice Saleem Marsoof PC P/CA and Justice S.Sriskhandarajah. This is a case where an order was made by the Commissioner General of Labour on 19.03.2003 to Standard Chartered Bank granting permission to the Bank in terms of Sec. 2(2) of the Termination of Employment of Workmen (Special Provisions) Act No. 45 of 1971 to terminate employment of petitioners (19) and others subject to payment of compensation. The 19 petitioners filed a Writ application to quash the order of the Commissioner General of Labour. The Respondent Bank took a preliminary legal objection that the petitioners are guilty of laches in that the order was made by the Commissioner General of Labour on 19.03.2003 and letters of termination of employment bears the date 27.03.2003 and took effect from 31.03.2003.

The petition of the petitioners bears the date 03.07.2003 more than three months later. The preliminary legal objection was over-ruled stating that it is not open to Court to dismiss the application in limine on the ground of lack of jurisdiction when questions of substantial and procedural impropriety are alleged. This is a good judgment where a series of previous judgments have been cited and cogently discussed and sufficient reasons adduced. This judgment operates as a bar to raising preliminary legal objections of this nature as a ruse of dodging judicial review which is appropriate and proper.

There are several judgments of the Supreme Court and it is difficult to deal with all of them. I wish to deal with some important judgments. The judgments delivered by Hon. Justice Dr. Shirani Bandaranayake Judge of the Supreme Court published in this Law Journal are - i.Peoples Bank Vs. Yashoda Holdings (pvt) Ltd. SC (CHC) Appeal No.21/2006, SC (CHC) LA No. 27/2006 HC Civil No. 75/99 (1) Decided on 25.09.2008.

The judgment of Justice Dr.Shirani Bandaranayake with Justice N.G Amaratunge agreeing was that - i. When considering Sec. 3 of the Civil Law Ordinance it is clear that subject to many changes made by the Legislature, the English Law on Banking at the time being in force would apply in Sri Lanka ii. Although under the Companies' Act No. 17 of 1982steps were taken to amend and consolidate the law relating to companies it is not disputed that there was no provision which deals with ultra vires transactions. In such circumstances, the law that has to be administered shall be the English Law at the corresponding period in England in terms of Civil Law Ordinance of 1852.

Justice Marsoof PC has written a separate judgment citing authorities and agreed with Justice Dr.Shirani Bandaranayake.

This judgment delves into in greater detail the Company Law in Sri Lanka.

It is definitely a clarity in Company Law.

ii. The judgment of Justice Dr.Shirani Bandaranayake with N G Amaratunge J and Jegath Balapatendi J agreeing in the Fundamental Rights Case SC/FR Application No. 252/2007 decided on 04.03.2009. This is an FR Application filed by M.Azath Salley against Colombo Municipal Council. This judgment makes it clear that public interest litigation is a special device. In this case M. Azath Salley a former Deputy Mayor of Colombo and a rate payer to Colombo Municipal council made an application under Article 12(1) of the Constitution on his own behalf and in public interest of the residents of Colombo Municipal Council area complaining of the failure of CMC to remove a large number of unauthorized hoardings erected, granting of purported approval for erection of hoardings etc. and violation of his fundamental rights and that of the residents of CMC - Justice Dr. Shirani Bandaranayake has given a comprehensive judgment allowing his application and directing the CMC to take action expeditiously as prayed for in his application. The judgment ends with the words - "If these directions are sincerely and expeditiously carried out, it would not only improve the revenue of the Council but would also be an enhancement to the advertising industry and more importantly, would beautify the capital city of the pearl of the Indian Ocean".

This is a Welcome judgment which should be an eye-opener to Colombo Municipal Council.

iii. The judgment of Dr.Shirani A Bandaranayake J with J Saleem Marsoof P C and J/Jegath Balapatabendi agreeing in Stassen Exports Ltd. Vs. Lipton Ltd. and another SC (CHC) Appeal No. 51/2006 SCLA Application No. 57/2005 decided on 19.11.2009 deals with application of the doctrine of Res Judicata, its binding effect and the doctrine of estoppels. This judgment is a complete analysis on law of Res Judicata and its applicability. It gives the reader clarity of mind on the doctrine of Res Judicata.

There are also some other useful judgments on Fundamental Rights, Debt Recovery, Writ of Mandamus, Land Acquisition Act, Evidence Ordinance, Customs Ordinance, Contempt of Court, Maintenance Act, Partition Act which would enrich the knowledge of the readers including Judges, Lawyers and students of Law.

This Journal also contains judgments which had evoked public interest, discussions and public opinion. Special mention will have to be made about the following judgments of public interesti.Vasudeva Nanayakkara Vs. K N Chosky M P and 37 others and R.S Nandalal and another Vs. Public Enterprises Reform Commission & 9 others. SC FR Application No. 158/2007 Judgment of J Amaratunge with Justies S.N.

Silva C J and Sripavan J agreeing.

ii. SC Application No. 209/07 by Dr. P.B Jayasundera Vs. Attorney General before a Bench of seven Judges headed by Hon. Asoka de Silva C.J.

This is a judgment of Hon. Asoka de Silva C.J with Dr. Shirani Bandaranayake J , Marsoof J, Ratnayake J, Sripavan J, Jegath Balapatabendi J agreeing and dissenting by J Thilakawardane.

The Journal is a compilation of articles from legal luminaries and judgments of Appellate Courts. The articles and judgments are thoroughly researched and insightful and they demonstrate the keen penetrative intellect of the subscribers and of the Editorial Board of this Journal for choosing the best. This Journal is a worthy adornment to any Library on Law. The Chief Editor Kandiah Neelakandan credited with more than two decades of experience as Editor of this Annual Journal deserves to be congratulated and highly commended. He has proved to be indispensable like the Commissioner of Elections who has been directed by Supreme Court not to retire but to remain. Of course he has a number of young energetic junior members of the Bar to join in his editorial team. It augurs well for the future.

Concluded