DE KRETSER, J.—Superintendent, Mulana Estate, Makandura
1968Present: de Kretser, J.
SUPERINTENDENT, MULANA ESTATE, MAKANDURA,Appellant, and JANIS APPU DIDDENIPOTA, Respondent
8. G. 6/68—Labour Tribunal Case No. G12901
Industrial Disputes Act, as amended by Act No. 62 of 1957—Section 31D—Appealthereunder to Supreme Court—Time limit for filing petition of appeal—Computation—Industrial Disputes Regulations, 1958, Regulation 33.
'Where an appeal to the Supreme Court is preferred under section 31D ofthe Industrial Disputes Act from an order of a Labour Tribunal, the period offourteen days within which the petition of appeal must be filed must be reckonedfrom the date of the order and not from the date on which a certified copy ofthe order is transmitted to the appellant in compliance with the requirementsof Regulation 33 of the Industrial Disputes Regulations of 1958.
Observations on the need for amending legislation.
.ApPEAL from an order of a Labour Tribunal.Lakshmaii Kadirgamar, for the Employer-Appellant.Prins Gunasekera, for the Applicant-Respondent.
Cur. adv. vuU.
December 14, 1968. de Kbetseb, J.—
Mr. Prins Gunasekera for the applicant-respondent in this appeal takesthe preliminary objection that the appeal has been filed out of time andshould be rejected on this account. In the instant case the orderappealed from has been signed by the President and dated 9.1.68.Section 31D (3) of the Industrial Disputes (Amendment) Act, No. 62 of1957, with reference to an appeal from an order of the President of a
DE KBETSEB, J.—Superintendent, Mulanai[Estate, Makandura8 S3
Labour Tribunal states : Every petition of appeal to the Supreme Courtshall be filed in the Supreme Court within a period of 14 days
reckoned from the date of the order from which the appeal is preferred.
And Section 31D (4) states: In computing the time within which anappeal must be preferred to the Supreme Court the day on which the orderappealed from teas made shall be included, but all Sundays and publicholidays shall be excluded.
In the instant case the appeal was filed in the Supreme Court on26.1.68.
There was during the period 9.1.68 to 26.1.68 two Poya days(14.1.68 and 22.1.68) which now take the place of Sundays for thepurposes of the calculation of the time, and one public holiday (15.1.68—Thaipongal Day).
Mr. Kadirgamar for the appellant concedes that the appeal is a dayout of time if the day 9.1.68 is taken as the date from which time beginsto run. He submits, however, that in view of the fact that the partyaffected by the order has no way of knowing the order made until acertified copy of it is transmitted to him as provided for by Regulation 33of the Industrial Disputes Regulations, 1958, which reads as follows:“ Every order or decision of a Labour Tribunal shall be made in writing.The secretary shall notify the applicant and the employer of the order or
decision by forwarding a certified copy thereof” “ Effect should
be given to a * salutory and just principle ’, namely, that if a person isgiven a right to resort to a remedy to get rid of an adverse order Within a.prescribed time limitation should not be computed from a date earlierthan that on which the party aggrieved actually knew of the order orhad an opportunity of knowing the order and therefore must be presumedto have had knowledge of the order.”
. t ,•
The above quotation is from the judgment of Rajamannar C.J. in thecase of Muthiah Chettiar v. The Commissioner of Income Tax, Madrasl.The question for decision there was whether an application for a revisionof an order passed by an Income Tax Officer on 4th February 1948 butreceived by the assessee on 24th February 1948 was out of time on theground that the application for revision was not made within one yearfrom the date of the order. By section 33A of the Indian Income Tax Act,1922, an application for the revision of an order had to be made within oneyear from the date of the order. The application was out of time if theyear was calculated from the 4th February 1948, but well in time if itwas calculated from the 24th February 1948. The court gave effect tothe principle I have quoted above.
Mr. Kadirgamar also cited the case of Francis de Silva v. Wijenathan *in which Dias, J., dealt .with a preliminary objection to the hearing ofan appeal over an order made in terms of the Local Authorities ElectionsOrdinance, No. 53 of 1946: Section 21 (1) of the Ordinance provided as
1 Income Tea Reports Vo}. 19 of 1951.
• (1948) 51 R. L. R. 49.
DE KRETSER, J.—Superintendent, Mulana Estate, Makandura
follows :—“If any claimant or objectoris dissatisfied with the
decision of any Electoral Officer or any claim or objection relating to theelectoral lists of the wards of any electoral area, he may, not later than tendays from the date of such decision, appeal therefrom to the SupremeCourt on any question of law involved in such decision, but not on anyother ground The election officer had put his decision into writing onSeptember 6th, 1948 ; his decision, however, was only communicated tothe appellant by the election officer’s letter dated 20th September, 1948.It was contended that the appealable time began to run against theappellant as from September 6th and therefore he was out of time.Dias, J., said “ The elections officer is not a Judge who sits in his court
from day to dayafter attending to his duty he departs, one does
not know where. The parties concerned have no place to go to where
they can obtain information as to what the elections officer decided
Obviously it is the duty of the elections officerto intimate to the
parties concerned what his decision was. The appealable time begins torun from that date and not before ; therefore in my opinion the appealhas been preferred in time and must be heard.”
In the case of Mohanlal v. The Commissioner of Income Tax 1 FazalAli, J., in dealing with a preliminary objection that an appeal was out oftime because section 66 clause 2 of the Income Tax Act 11 of 1922required that the application under that section should be made within onemonth of the passing of an order under section 31 or 32, said as follows :—
“ Our attention is drawn to the fact that the Assistant Commissionerfixed no time for passing the order, and the order was passed in theabsence of the petitioners. It is said that it is only just that in thesecircumstances the period of limitation should be computed not from thedate on which the order purports to have been recorded but from thedate when the order was communicated to the petitioner, namely thedate on which the post-card was received. It is also pointed out thataccording to the prevailing practice, the office of the Income TaxDepartment do not insist on the presence of the party on the date on whichthe order is to be passed, and as no date is fixed for the passing of theorder, the order is always communicated to the party by post. Thisbeing so it is urged that if the period of limitation is not computed fromthe date of the communication of the order it may mean great hardshipto the party in certain cases because it is possible that the party may notIcnow anything about the order until the period of limitation has expired.Now if the learned advocate for the petitioners means to point out to uswhat should be the law we would say that his argument deserves seriousconsideration. In the present case, however, our concern is not to laydown what should be the law~but to interpret the law as it stands. Indoing so, I have to say that I do not find anything in the language of thesection to enable me to hold that the express:on ' passing of the order ’ .should be interpreted as the communication of the order to the party….It is true that ordinarily the judgment of a court in order to be properly
1 A. I. It. 1930 Patna 14.
DE KRETSER, J.—Superintendent, Mulctna Estate, Makandura 335
delivered must be pronounced in court and in fact. there is a specificprovision to this effect in section 33 and 0 20 R 1 Civil Procedure Code.There is, however, no such clear provision in the Income Tax Act and Icannot hold without considerably straining the law that the order passedby the Income Tax Commissioner can be ignored for the purpose oflimitation until it has been duly communicated by post to the assesses.All I can say is that what seems to be the hardship of the existing law canbe only met by vigilance of the assessees on the one hand and by therealisation by the Income Tax Department..;… It is only fair thatthe orders should be communicated as soon as possible’after they havebeen passed.” It is of interest to note that in that case the order wasdated 5th July, 1928. The intimation of the order was sent by post tothe petitioners on 7th July 1928 and it reached them some time after 8thJuly 1928.
In the case of the North- Western Blue-Line Bus Co. Ltd. v. The GreenLine Omnibus Co. Ltd.1 Sansoni J., held that the appealable period of21 days in section 212 (2) of the Motor Traffic Act runs from the date ofdetermination or order of tfie Transport Appeals Tribunal and not fromthe date on which notice of the determination or order is served on theappellant. The following passage from the judgment of Sansoni J. is* ofimportance —".’
"It was .submitted for the appellant that the decision of theTribunal does not become effective until it is formally given in the senseof being pronounced in the presence of or otherwise communicated tothe parties; and the period of 21 days will commence to run only fromthe day it was so pronounced or communicated. Section 212 (2) is not,in my opinion, open to such a construction; the words ' the date of theTribunal’s decision ’ are clear and unambiguous, The phraseology ismarkedly different from that adopted in sections 184 and 754 of theCivil Procedure Code. Section 184 requires a Court to ‘pronouncejudgment in open court cither at once or on some future day of which
notice shall be given’ Section 754 requires a petition of appeal
to be presented within a specified number of days ‘ from the date whenthe decree order appealed against was pronounced It will be seen onthe other hand that the sub-sections of section 211 of the Motor TrafficAct contemplate a giving of a decision of the Tribunal to be followedby the secretary giving notice of such decision to the parties to theappeal. It is not contemplated that parties should have prior noticeof the date on which the decision was given ; nor again is it provided insection 212 (2) that the period of 21 days should run from the date onwhich the parties received notice of the deoisioh. -of the Tribunal. Itseems quite clear from an examination of sections 211 and 212 that thecalculation of the appealable time has nothing to do with ‘ the date onwhich the parties received notice of the decision To read the words‘ the date of the Tribunal’s decision ’ appearing in section- 212 (2) as•though they were ‘the date of.service of notice of the Tribunal’sdecision * would be to do far more than interpret the words.”
1 (6954) 56 N. L. B. 116.
DE KRETSER, J.—Superintendent, Mulano Estate, Makandura
This passage muiatis mutandis applies in all respects to the case beforeme. There is the additional factor in this case that the act makes provision for how time is to be computed. For section 31D (4) states : Incomputing the time within which an appeal must be preferred to theSupreme Court, the day on which the order appealed from was made shall be
included This appears to clearly point to the fact that it was
not the intention of the Legislature that time should run from any otherday, for example the day on which the secretary notifies the applicantof the order by forwarding a certified copy thereof.
In my view the relevant words in the sections concerned are clear andunambiguous and must be given their ordinary meaning. I realise thatwhen that is done the resulting position is that the party affected by theorder made by a President would not have, 14 days in which to presenthis appeal for there would be the time lag between the day the order wasmade and the day on which a certified copy of it was transmitted to theparty affected quite apart from the time lag between the transmissionand the receipt of the order by the party affected. But that appears tome to be a matter which should be set right by amending legislation.Mr. Kadirgamar pointed to the fact that the day might dawn when inconsequence of delay in the transmitting of an order the parties affectedmay find that they are out of time before they were aware of the order.That only highlights the need for amending legislation and the need inthe meantime for Presidents to see that their orders are made known tothe parties affected with the minimum of delay. It also shows the needfor vigilance on the part of the legal advisers of the party affected. Inthe instant case the party affected had the certified copy sent to him on11.1.68. From that certified copy he had to know that the order wasmade on 9.1.68. It is surprising to know that in spite of the three extradays he fortuitously had due to Poya and statutory holidays he wasunable to file his appeal in time.
For the reasons I have set out above the appeal is rejected.
SUPERINTENDENT, MULANA ESTATE, MAKANDURA, Appellant, and JANIS APPU DIDDENIPOTA,