1-SINGER (SRI LANKA ) LTD v. RASHEED AND ANOTHER

023-SLLR-SLLR-1986-V-1-SINGER-SRI-LANKA-LTD-v.-RASHEED-AND-ANOTHER.pdf


258
Sri Lanka Law Reports
fi9S4) 1 SriL.R
SINGER (SRI LANKA) LTD.
RASHEED AND ANOTHER
SUPREME COURT.
WIMALARATNE. J.. COLIN-THOME. J. AND ABDUL CADER. J.
S.C. APPEAL No.21/83 – C.A. APPLICATION No. 540/80 – L.T. 17/7057DECEMBER 13.1983
Writs of Certiorari and Mandamus-Effect of delay – Res Judicata.
The respondent had been employed by the appellant as ihe managing salesman in theirshop at Weilawane. Alter a domestic inquiry a; which he was sound guilty of beinginvolved m the misappropriation or breach of trust of some sewing machine needles, hisservices were terminated. He filed two applications before the Labour Tribunalcomplaining of unlawful termination of his services : One before the Tribunal atNarahenpita (on 6.5.77) which was dismissed owing to his absence : the other beforethe Vauxhall Sireei Tribunal where the employer-appellant raised the plea of res judicatarelying on the order of dismissal made by the Narahenpita Tribunal. The latterapplication was transferred to the Narahenpita Tribunal which re-numbered theapplication and proceeded to hear it. The plea of res judicata was raised again by theappellant. This was upheld by the Tribunal and ihe application was dismissed by itsorder of 28.1 1.79. The respondent did not appeal from either o' the orders dismissingthe application. Instead, he invoked the writ jurisdiction of the Court of Appeal andsought a writ of certiorari to quash the order made by the Labour Tribunal on 28.1 1.76and a writ of Mandamus to compel the Tribunal to proceed with the inquiry into thete–numbered application on the ground that the proceedings in the firs; application hadbeen heard exparte and without notice to him and that its dismissal did not operate asres judicata.
Heid—
There was ample opportunity for the respondent to have lodged an appeal from ihe firstorder of dismissal o! the Labour Tribunal as he had notice of the order a lew days after nwas made and even of the proceedings before that. Instead o; doing so he had. sismonths later, invoked the extraordinary jurisdiction of lire Court of Appeal. Although asix month delay is not by itself a ground for refusing relief, the circumstances o! tinscase riid not warrant excusing ihe delay.
APPEAL from a judgment of the Cour; of Appeal.r D C. ole S^a for appellant.
Siva Rn;i'.ratnam w:!h .9 C. Ctosene Thantbiah and K. Thevarajah for 1 si respondent
Cur adv. vul!
sc
Singer (Sri Lanka) Ltd. v. Rasheed (Wimalaratne, J.)
259
January 1 2. 1 984.
WIMALARATNE, J,
This is an appeal from a judgment of the Court of Appeal allowing anapplication for a Writ of Certiorari quashing an order of the LabourTribunal which had dismissed an application by the workman (1strespondent) praying for reinstatement and back wages. The workmanwho had been employed as managing salesman in the employer'sshop at Wellawatte alleged that his services were unlawfullyterminated by letter dated 15.3.77. He filed, two applications inrespect of the same termination, one before the Labour Tribunal atNarahenpita on 6.5.77 and the other before the Tribunal at VauxhallStreet on 9.5.77. He says he filed two applications because he wasnot certain as to which tribunal was possessed of jurisdiction inrespect,of the termination.
The first application was numbered l.T 17/5838/77. and notices'were issued on 10.5.77 requiring answer to be filed on 20.6.77. Theapplicant was absent on 20.6.77 and the Tribunal appears to haveappointed 3 8.7 7 as the date on which he was required to purge hisdefault. He was absent on that date as well. The Tribunal hastherefore dismissed his application by order dated 18.8.77.
The second application at Vauxhall Street was. numberedLT2/9614/77. The employer filed answer on 2.6.77 in which hereferred to the fact that LT 1 7/58-38/77 was pending. The employerpleaded that the applicant and some others had been involved in themisappropriation or breach of trust of 83.000 sewing machineneedles valued at Rs. 1 24.500 and as the applicant's explanation wasunsatisfactory a domestic inquiry was held at which he was foundguilty ; hence his services were lawfully terminated. When this secondapplication was taken up for inquiry on 2.12.77 the employer raisedthe plea of res judicata, as by then the first application in respect of thesame termination had been dismissed by the Tribunal at Narahenpita.The Tribunal then made order on 2.1 2.77 that the second applicationbe transferred from Vauxhall Street to Narahenpita.
The Tribunal a; Narahenpita re-numbered this application as LT1 7/7057. The plea of res judicata was again taken on 28.1 1.73. ThatTribunal heard arguments of Counsel for both parties on that date, andby us order of that date (apparently dictated) upheld the plea anddismissed the application.
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The applicant did not appeal from either of the orders dismissing hisapplication. Instead he invoked the jurisdiction of the Court of Appealby his application dated 21.5.80 and sought a Writ of Certiorari toquash the cdar made on 28.1 1.73 and a Writ of Mandamus tocompel the Tribunal (2nd respondent) to proceed with the inquiry in LT17/7057 on the ground that the proceedings in the first applicationwere heid ex parte and without notice to him. and that the 2ndrespondent erred in holding that that order operated as res judicata.He pointed to the fact that notice in the first application had beenaddressed to "22 Wekanda Road, Colombo 6" whereas his correctaddress is "22 Vivekananda Road. Colombo 6".
The Court of Appeal has taken the view that the Tribunal had failedto address its mind to the main issue in the case, which was as towhether the applicant had in fact received the notice requiring hisattendance before the first Tribunal on 20.6.77 and/or 3.8.77. TheTribunal, in the opinion of the Couri of Appeal had erred in holding thatthe first application had been "looked into and disposed of" and thusupholding-the plea of res judicata.
Before us learned Counsel for the appellant contended that-
(a) the order of 28.11.79 was an appealable order from which ihe1st respondent had not appealed ;
b) that there has been a long delay of over five months after matorder was delivered before the Writ jurisdiction of the Court ofAppeal was invoked ; and
to! mat the 1 st respondent had suppressed material facts m that hehad not intimated to the Court of Appeal that he had received acopy of the order of dismissal of the first application within a fewclays of that order.
Ihe Court of Appeal has taken the view that as the 1st respondentcould not obtain certified copies of ihe relevant documents till.aboutJanuary 1980. his failure to lodge an appeal was excusable. Of thedocuments relevant' to an appeal, the pleadings in the two applicationsand the order m ihe first application were already in the possession ofthe 1st respondent and were marked Pi to P4 when his case wasargued on 29.1 1.79. The only other relevant document was P5 theorder of that date. That order was a brief order made in the presenceoi. Counsel! There was. therefore ample opportunity for the 1strespondent io have lodged an appeal.
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SCSinger (Sri Lanka) Ltd. v. Rasheed (Wimalaratne, J.)
Instead, six months later he invoked the extraordinary jurisdiction ofthe Court of Appeal. The Court of Appeal has taken the view that adelay for a period of six months by itself is not a ground for refusingrelief. I am in entire agreement; but the circumstances of this case didnot warrant the extension of that latitude to the 1 st respondent. In thefirst place, he ought to have been aware that the employer hadreceived notice of the first application because the employer in itsanswer filed in the second application on 2.6.77 had disclosed thefact that the first application was pending. That averment should havealerted the 1st respondent, especially in view of the serious allegationof misappropriation levelled against him. Between 2.6.77 and 3.8 77he had two months in which to make inquiries regarding the stage ofproceedings in the first application. Had he made any sort of inquiry hewould have found out the relevant dates. As the Tribunal has, in itsorder in the first application correctly held, if the employee wantedrelief from that Tribunal, the employee should have been vigilant.
The 1st respondent produced at the arguments before the Tribunal,on 28.1 1.79 a letter dated 26.8.77 by the first Tribunal to him whichwas marked A4. He did not, however file it of record either in theTribunal or in the Court of Appeal. The appellant makes a point of thissuppression, because according to that letter the 1st respondent hadreceived intimation of the order of 18.8.77 made in the firstapplication within a few days after it was made. If that be so ne hadample opportunity to either appeal from that order or to seek to havethat order set aside on the ground that he had no notice. The order inthe first application refers to the fact that the notice which had beensent to the 1st respondent by registered post had not been returned.The Tribunal has presumed correctly that the 1st respondent hadnotice of the date 20.6.77. I
I am therefore of the view that the Court of Appeal ought not to haveexercised its jurisdiction to quash by way of Certiorari the order of theLabour Tribunal dated 28.11.79. I would accordingly set aside thejudgment of the Court of Appeal, and restore the order of the LabourTribunal dismissing this application. The appellant will be entitled tocosts of this appeal payable by the 1st respondent.
COLIN-THOME, J.- I agree,
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ABDUL CADER, J.
The 1 st respondent filed two applications in respect of termination ofhis employment, one before the Labour Tribunal at Narahenpita on6.5.7 7 and the other before the Labour Tribunal at Vauxhall Street on
The first one was given the number L.T./1 7/5838/77 andthe other L.T./2/961 4/77. L.T./1 7/5838/77'was dismissed on18.8.77 as the 1st respondent was absent after notice. The 1strespondent has stated that he did not receive notice. Wimalaratne, J.has referred to "A4" but it has not been produced in the Court ofAppeal or in this Court. I shall assume, therefore, that there is no proofbefore this.Court that the 1st respondent had notice of the inquiry intothat application.
When the second application was taken up, it was dismissed on theground that the dismissal of the first application operated as resjudicata. That was an appealable order and I agree with Wimalaratne,
J.that the reasons urged by the 1 st respondent tor his failure to lodgean appeal within the prescribed time are not sufficient to grant thepetitioner extraordinary relief by way of writ filed long after theappealable period.
There is yet a further circumstance that militates against ihe 1strespondent. When the second application was taken up for inquiry on
the employer raised the plea of res judicata. The firstapplication had been dismissed on 18.8.77 – 4 months earlier. Evenassuming that the 1 st respondent had no notice of that dismissal, hewould have been then aware on-2.1 2.77 that the first application hadbeen dismissed. It was then open to him to move to purge his defaultin the first application so as to vacate the order of dismissal. When thesecond application came up for inquiry on 28.1 1.79. 2 years later, hisfailure to take steps in the earlier application permitted the appellant toraise the plea of res judicata, which the Tribunal validly upheld.Therefore, it was the negligence on the part of the petitioner in failingto re-open proceedings in the first application that led to the dismissalof the second application by way of res judicata.
Under the circumstances, I agree with the order made byWimalaratne, J.
Appeal allowed.