Legal Aid Commission

Women without franchise

The majority of the Sri Lankan population, and the electorate are women. If nearly one million women voters employed as domestic workers mainly in the Middle East who have been deprived of their ability to cast their votes in Sri Lanka are added the female voting population in Sri Lanka exceeds the male voting population. One estimate gave the figure 57 percent of the electorate as women, taking also in to consideration that the vast majority of highest surviving elderly spouses are females.

In the last Parliament over 50 percent of the Sri Lankan voting population who are women had only 13 elected members or just 5.6 percent of the total members of Parliament. Incidentally, this was the highest representation that Sri Lankan women have ever achieved in the highest legislative body in Sri Lanka. For a country, which elected the First Woman Prime Minister in the world and a women twice as the President, the legislature in Sri Lanka has the lowest female representation of South Asia. This should be considered a very poor reflection on the political leadership of Sri Lanka irrespective of party labels.

The female leaders who inherited political leadership in Sri Lanka should have been more proactive like the Indian Congress Leader Sonia Gandhi to ensure adequate women representation in legislature. This did not happen, perhaps on the premise that no small trees grow under the shade of Big Banian trees.

Sri Lankan women with no significant political support has evinced themselves with great credit. In the World Economic Forum’s gender parity index, Sri Lanka is placed 14th in the world rankings even surpassing economic super powers like the USA, Japan and Italy. For some time, Sri Lankan women mostly working as domestic helpers abroad, the female garment factory workers and largely tea pluckers have made vital contributions to our national economy. Women also dominate the teaching profession in Sri Lanka imparting education to the children in remote corners of the country.

This dominant contribution of women in Sri Lanka deserve that women’s view points should be considered in the Parliament when enacting new laws as women forms the majority of the electorate.

For some time, Sri Lankan female domestic workers abroad have earned the largest amount of foreign exchange to this country. The travails these women workers undergo while working abroad is legendary.

The effects of family dislocations on the growing children, specially girls where the mothers work abroad have been recorded in number of social surveys.

This sad situation is componented by the fact that these over one million female workers abroad are unable to encase their right to vote in elections in Sri Lanka. In many democracies arrangements are made for temporary foreign residents to cast their vote in national elections. In Sri Lanka all political parties have been silent on this issue.

- S S Wijeratne

Questions and Answers

Termination of employment

Question: I am employed at a Company in Colombo where there are 400 employees. The Company has decided to close down the division where I am working effective from 31.03.2010. My period of service is 30 years. The Company has given me notice of termination of employment from 31.03.2010. What do I do?

Mohomad, Colombo

Answer: You can complain to the Commissiorner of Labour Termination Unit within six months from 31.03.2010 and obtain relief. You can also file a case in the Labour Tribunal within six months from 31.03.2010 and obtain relief. You cannot obtain relief from Labour Tribunal as well as Commissioner of Labour. You will have to decide where to go.

Vicarious liability

Question: My driver met with an accident during my working hours while driving the car of my employer - company . As a result an old man is dead can I be held liable for this accident ?

Anula, Kurunegala

Answer: Yes , you can be held liable under vicarious liability. The driver of the vehicle who is liable for the accident may always not be the registered owner. He may be an employee within the course of employment.

The employer’s or master’s liability for the negligent acts of his servants is an English Law principle. However, the negligent act of the employee should be within the course of employment.

The particular act is within the course of employment or not is a question of fact.

When the evidence is led, identification of the registered owner and the driver is an essential requirement.

Sometimes it is to be noted that the vehicles are hired to various companies and people by the registered owners. In such a situation, the course of employment of the driver is very important.

There are instances where some acts are forbidden by employer, however, if the employee has independent authority to take decisions in the course of employment, the master is liable, even if the particular act is expressly forbidden.

Labour matter

Question: I was employed in a leading Company in Colombo where there were 300 employees. My period of service was 30 years. The case was settled with the payment of Rs. 300,000 in full and final settlement and payment was made in the tribunal. I wrote to the Labour Commissioner for gratuity. The company is refusing to pay gratuity stating that the case was settled in the Labour Tribunal in full. Please advice me.

Chamath Fernando, Mahawewa

Answer: Settlement in the Labour Tribunal in full and final settlement does not include gratuity. The Labour Tribunal in this instance has no jurisdiction to go into gratuity. The Commissioner is obliged in law to recover gratuity for you with surcharge for delayed payment.

Labour matter

Question: My service was terminated on 10.06.2009. I complained to the Labour Commissioner and settlement was not possible at the inquiry conducted on 16.07.2009. I filed an application in the Labour Tribunal on 08.12.2009 before the expiry of the period of six months from the date of termination of employment. I was noticed by the Labour Tribunal to appear on 29.01.2010. I appeared in the Labour Tribunal on 29.01.2010. I have received a notice from the Registrar Industrial Court asking me to appear on 10.02.2010 for the same dispute. I did not go and the employer has taken an objection in the answer filed by him in the Labour Tribunal asking for my case to be dismissed. I would like to proceed with the Labour Tribunal case. Please advice me.

Rosith, Maharagama

Answer: If you want to proceed with the Labour Tribunal case you may inform in writing to the Arbitrator that you do not want action taken and to terminate the proceedings. You need not go before the Arbitrator who has no jurisdiction to hear the case pending in Labour Tribunal.

Questions and Answers

Bail

Question: What is bail and what are the kinds of bail available?

Ishra, Dedigama

Answer: The bail is the process by which a person is released from the custody on the undertaking given by a surety or on his or her to appear in future stage of the proceeding of the court. Bail could be granted to a suspect during the stage of investigation or to an accused whose case is pending before court, or even to a person who has been convicted, on his preferring an appeal against his conviction. When we talk about bail we can see different kinds of bail. They are surety bail, cash bail, certified bail and personnel bail and anticipatory bail. All these terms describe the nature of the bail bond upon which a person is released from custody. Surety bail is where a person is released on a surety entering upon a bond undertaking to secure the presence of the person released when required.

Cash bail is that they have to make a cash deposit along with the undertaking to secure the presence of the person released on bail when required. Under this bail no need to bail bond sign by the sureties.

Certified bail is where a certificate such as a deed would be deposited in court to the value of the bail bond.

Personnel bail is where the person released sign a bond to pay the amount indicated in the bond if he fails to appear in court as required.

One has to remember that when a person is released on bail it is customary to make such release subject to certain conditions commonly referred to as bail condition. Further we have to remember that there can be order granting bail on a combination of any two or more these bonds.

Anticipatory Bail is one where a person obtain an order from Court prior to his arrest.

Police custody

Question: Please let me know what is the maximum period of detention under the Sri Lankan Law.

Shamil, Nuwaraeliya

Answer: The maximum period that a person may be held in custody without conviction is provided in Section 16 of the Bail Act. According to the Provision Section 16 no person could be held in custody for a period of more than 12 months from the date of the arrest, however if it is necessary to hold the person for a period exceeding 12 months from the date of the arrest the Attorney General is expected to make an application to the relevant high court for that purpose.

Telephone Bill

Question: I have a SLT phone in my home. I recently noticed that my bills are very high. I want to check my detailed bill. I want to know whether it is necessary to take court order to check my detailed bill?

Samantha, Panadura

Answer: There is no need to get a court order to check your telephone line. You have to obtain the application form any of the Telecom shops islandwide and follow the procedure given below:

1 Statements are issued only on legal customer’s request.

2 A fee of Rs.100 (excluding taxes) per month statement will be charged for this service and this charge will be added to Invoice under miscellaneous.

3 Please forward this application by post to; Accountant, Customer Relations Unit, Sri Lanka Telecom PLC, Room No.2, 3rd Floor, No.9, Mihindu Mawatha, Colombo 12.

4 Applications requesting past statements should reach Customer Relations Unit within 60 days from the last day of the month for which statement is requested. Those statements will be sent separately under registered cover to the invoicing address.

5 For any inquiries in this regard please contact Customer Relations Unit on 2338888

Insurance company

Question: Please let me know whether it is necessary to make the insurance company a party in an accident cases to be filed in the courts?

Chamara, Panadura

Answer: Under the Motor Traffic Act Amendment No. 08 of 2009 it is an essential requirement to make the party to the insurance company a party of the case.

Earlier the procedure laid down in Sec:106 of the Act and presently Section 21 of the amendment it is a legal requirement to make the insurance company a party in the accident case.

Insurer shall be noticed before or within seven days of the commencement of the action. (vide Sec: 21(1) (a))

Following particulars should be mentioned in the notice 21(2):

a) Name of the court
b) Case Number
c) Names of the Parties
d) Insurance Policy Number
e) Nature of the Action
f) The date fixed for filing answer

Insurance Company has (Locus-Standi) a legal right to appear on behalf of the defence as well.

Labour matter

Question: I am reaching 67 years and have applied to withdraw my EPF contribution from the EPF Department under allotted No. D/1668/815 HTN01020892009176 A.

But I have received a letter from the EPF Department Central Bank of Sri Lanka with reference No. 961320 stating that the money has not been remitted to the Central Bank by the Management of the Estate Dunkeld Estate, Dickoya. Therefore I am requesting your kind advice and assistance to get my EPF money early as possible.

R. Selvarajh

Answer: You should lodge your complaint with the Assistant Commissioner of Labour of the area along with the letter received from the Central Bank. You should also write to the Commissioner of Labour EPF, 8th Floor, Labour Secretariat, Narahenpita.

They will thereafter take steps to recover your claim from your employer. It would be ideal if you can first interview the Assistant Commissioner of Labour of your area.

Labour Tribunals

Question: The Administration Manager of our Company Credited with 15 years service was dismissed after domestic inquiry for misconduct. He has filed a case in the Labour Tribunal where we commenced the case and led evidence and concluded our case. He has not given evidence. His lawyer has taken up the position that our company has failed to lead evidence to justify termination of employment and he was therefore not leading evidence. Is it not necessary for the applicant to give evidence and explain his position in relation to his misconduct for which his services were terminated?

Sarath, Mahawila

Answer: There is no requirement that an applicant should give evidence. In the case of board of Directors CWE vs Ratnayake CLW LXXX Page 41

Justice G P Silva - Held - No prima facie case against the applicant has been made out before the Labour Tribunal and in the absence of such prima facie case the stage is not reached for the applicant to offer an explanation by placing evidence himself or anyone else on his behalf.

Gratuity

Question: Can you please give me the date from which the payment of Gratuity Act came into operation?

P. Ananda, Panadura

Answer: The payment of Gratuity Act came into operation with effect from 31/03/1983 however part one of the Act came into operation with retrospective effect in August 26, 1972 in respect of the Employees of Estates vested with the Land Reform Commission.

Pension scheme

Question: I am working in a bank and my employer has in my contract of employment stated that I am eligible for pension when I retire. Please let me know weather in addition to my pension I could claim gratuity as well?

Gamini Perera

Answer: No, if your pension is paid under a non contributionary pension scheme you do not qualify for gratuity under the payment of Gratuity Act No. 127 of 1983.

Termination of service

Question: We have an employee who is now 62 years. We have not issued him with a contract of employment. He says that he is fit to work. Our Company policy is that employees should retire when they reach the age of 55. Since he has refused to go we have applied to the Commissioner of Labour for permission to terminate his services. The inquiry has been proceeding in for six months now. His position before the Commissioner of Labour is that there are other employees working in the Company who are more than 60 years since he is fit to work he can continue to work as long as he is fit.

During the period of the inquiry before the Commissioner of the Labour he has committed serious Acts of misconduct. While the inquiry before the Commissioner of Labour is pending, can we terminate his services for misconduct as a punishment imposed by way of disciplinary action?

Answer: Yes. You can terminate the services of your employee for misconduct as a punishment imposed by way of disciplinary action and thereafter inform the Commission of Labour that you are withdrawing your application for permission to terminate his services. The employee cannot proceed with the same inquiry because the Commissioner has no Jurisdiction to hear complaints when the services are terminated on disciplinary grounds. The employee concerned will have to seek relief before the Labour Tribunal in such instances.

Protection for goods

Question: Under our sales of goods law is there protection for a trader to make false representation?

Deepika, Nugegoda.

Answer: No. Any trader who in the course of a trade or business, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services-

(a) Falsely represents that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model;

(b) Falsely represents that goods are new;

(c) Represents that goods or services have sponsorship, approval, performance, characteristics accessories, uses or benefits they do not have

(d) Represents that such trader has a sponsorship approval or affiliation he does not have;

(e) Makes false or misleading statements concerning the existence of, or amounts of price reduction or price increase;

(f) Makes false or misleading statements concerning the need for any goods services, replacements or repairs; or

(g) Makes false or misleading statements concerning the existence or effect of any warranty or guarantee. He shall be guilty of an offence under the Act.

The street line agreement

Question: We are under renovation of our shop which is located in Main Street, Hatton. The UC asked me to sign an agreement with UC or RDA. In the agreement it has mentioned in the future if they decide to break our shop due to road development we cannot claim money.

Please let me know?

1. What is this Agreement?

2. Why do we need to sign?

3. If they break the shop can we ask a claim?

Please kindly help me for this matter, I would like to know more details if I can make an a appointment.

Suranga de Silva, Hatton

Answer: The facts narrated by you are not sufficient to answer your questions the UDA has some powers to acquire or break the proportion for the purpose of widening the road. Can you please fax a copy notice/agreement received from the UC and/or UDA so that we can able to give proper advice.

Consumer Rights

Question: Please let me know as a consumer do I have a legal right to ask for the receipt from the seller for the purchase made by me.

Alponsu, Kandy

Answer: Under the Consumer Affairs Authority Act No 09 of 2003 it is a legal right to ask for receipt to the consumers . According to Act Section 28 says that

“Every trader who sells any goods shall on demand, issue to the purchaser thereof, receipt setting out -

(a) The date of the sale;

(b) The quantity of goods sold;

(c) The price paid for such quantity;

(d) Nature of the transaction, that is to say, whether the sale was wholesale or retail ; and

(e) Any other requirements that may be imposed under any law relating to the issue of receipts by the Authority under this Act.”

Registration of vehicles

Question: I have decided to buy a new vehicle from the TATA Company. Please explain how to register a new vehicle with the Motor Traffic Department.

Ranasinghe, Kadawatha

Answer: The following requirements should be fulfilled for the first registration of a motor vehicle in Sri Lanka.

* Form (MTA 2) for the registration of motor vehicle

* Two(2) photographs of the vehicle owner (3.5 x 2.5). The Grama Niladhari in the relevant area or the vehicle importer should certify on the reverse of the photograph. If the vehicle owner presents himself and personally submits his application for registration the supervising Officer of the relevant section can certify the photograph on production of the identity card.

* A Photocopy of the identity card/driving licence/Passport of the vehicle owner.

* In case of a reconditioned vehicle cancelled overseas Certificate of registration (along with English translation of the Certificate).

* Customs entry.

* Customs assessment notice.

* Relevant invoice relating to new vehicles.

* In case of a vehicle purchased in an auction of customs, Ports Authority and three Armed Services the letter and payment receipts obtained from the relevant institution.

* Certificate issued by a Motor Vehicle examiner after the vehicle having been examined (Certificate of Weight) or Prototype VIC, Instead of examination certificate of motor-cycles chassis number and engine number are examined and certified by a Motor Vehicle Examiner.

* If the vehicle has been imported on an import licence originals of such licence and amendments thereof if available.

* Duly perfected Form MTA3 for the registration of absolute ownership.

* If registered with a mortgage a copy of mortgage deed.

A separate application should be submitted for the allocation of a specific number within 30,000 numbers ahead and Rs 7,500.00 is charged additionally.