NEW LAW REPORTSOF SRI LANKA (CEYLON)VOLUME LXXVI[In the Court op Appeal of Sri Lanka]
■ 1973 Present: Fernando, P., Samerawickrame, J., andSiva Supramaniam, J.
THE CEYLON WORKERS’ CONGRESS, Appellants, andSUPERINTENDENT, BERAGALA ESTATE, Respondent
Appeal No. 10 of 1972
S.C. 236/70—L. T. Nos. B 2787 and B. 2788
Industrial dispute—Termination of a workman’s services—Application toLabour Tribunal for relief—Time limit of three months for makingsuch application—Invalidity of Regulation No. 16 of IndustrialDisputes Regulations, 1958—Scope of rule making power ofMinister—Provision in Act giving a Regulation the efficacy of astatutory provision—Power of Courts to examine the vires of theRegulation—Industrial Disputes Act (Cap. 131), ss. 31B (1),31B (4), 31C (1), 31D, 39 (1), 39 (2).
Regulation No. 16 of the Industrial Disputes Regulations, 1S58,made by the Minister of Labour under the rule making powersvested in him by section 39 (1) of the Industrial Dispute Act isas follows :■—
"Every application under paragraph (a) or (b) of- Section 3 IB (1) of the Act in respect of any workman shall bemade within three months of the termination of the services ofthat workman. ”
Held, that Regulation No. 16 is invalid for the reason that it isultra vires the rule making powers vested in the Minister. The •-Industrial Disputes Act itself does not contain any- provision whichlimits the time within which an application may be made undersection 31 B (1). An unlimited right granted by a statute cannotbe validly limited by a regulation without an express powerconferred for that purpose by the Act.
"A Regulation which restricts generally a workman’s right toapply for relief, irrespective of the facts and circumstances. applicable to any particular case, far from giving effect to theprinciples of -the Act, will go counter to those principles, byprecluding a . Tribunal from making a just and equitable .order incases "where ther'e may be some delay but such delay is excusable• or justifiable. ”^ •.
, The provision in seetion- 39 (2) of the Industrial Disputes ,Act thatev&y regulation made by. the Minister and approved by Parliamentsh'alPbe as valid and effectual as though it were enacted in tideLXXVT—1l'K—21353—2.S05 (4/73)
SIVA STTPRAMANIM, J.—Ceylon Workers' Congress v. Superintendent,
principal Act cannot preclude the Courts from examining the viresof Regulation No. 16. Section 39 (2) can apply only to regulationsmade within the ambit of section 39 (1). The question whether aRegulation is within the ambit of section 39 (1) has to be decided bythe Court on an application of an objective test and not by referenceto the intentions of the Minister.
River Valleys Development Board v. Sheriff (74 N. L. R. 505)overruled.
T^PPEAL from a judgment of the Supreme Court.
N.Satyendra, with D. C. Amarasinghe, for the appellants.
Issidore Fernando, with Bimal Rajapak.se, for the respondent.
Cut. adv. vult.
February 8, 1973. Siva Supramaniam, J.—
This appeal raises the question of the validity of RegulationNo. 16 of the Industrial Disputes Regulations 1958 made by theMinister of Labour under the rule making powers vested in himby the Industrial Disputes Act (Cap. 131) (hereinafter referredto as the Act), Regulation No. 16 is as follows:—
“Every application under paragraph (a) or (b) ofSection 31 B (1) of the Act in respect of any workmanshall be made within three months of the terminationof the services of that workman. ”
The appellant is a trade union which made two applicationsfor payment of gratuity on behalf of two of its members, whowere husband and wife, on their retirement from employmentas labourers on Beragalla Estate, Haputale. The Labour Tribunalheard both applications together and ordered the employer topay certain sums of money as gratuity but the appellant wasdissatisfied with the sums so awarded and appealed to theSupreme Court on a question of law in regard to the extent ofthe liability of the employer to pay gratuity. At the hearing ofthe appeal a preliminary objection taken by the respondent thatthe appellant’s application to the Labour Tribunal was time-barred under the afore-mentioned regulation was upheld bythe Supreme Court and the appeal was dismissed. The appellanthas now appealed to this Court on two grounds ; first, that thesaid regulation is ultra vires the rule making powers of, theMinister under the Act, and second, that the Regulation i$ onlydirectory and, in the circumstances of this case, the appeal shouldnot have been dismissed.
SIVA STJPRAMANIAM, J.—Ceylon Workers’ Congress v. Superintendent,
The question of the validity of the said Regulation came up.for consideration before the Supreme Court first in the case ofRam Banda v. River Valleys Development Board1. In that case,Weeramantry J. held that the said Regulation was ultra vires therule making powers conferred on the Minister under the Act.'The decision in that case was, however, overruled by a Divi-sional Bench of three Judges of the Supreme Court in the caseof River Valleys Development Board v. Sheriff’ in which themajority of the Court held that the said Regulation was validand within the authority given to the Minister by paragraph (h)of Section 39 (1) of the Act. The instant case was heard by asingle Judge who was bound by the judgment in Sheriff’s case.
The gazette notification containing the Regulations sets outthat they have been made by the Minister “ by virtue of thepowers vested in him by Section 39 of the Industrial DisputesAct, No. 43 of 1950, and approved by the Senate and the Houseof Representatives under that section. ” Section 39 (1) reads :
“ The Minister may make regulations—
(o)in respect of all matters which are stated or. requiredby the Act to be prescribed ;
in respect' of all matters for which regulations are
required or authorised to be made by or under thisAct;
-(f) and (g) are not relevant in connection with
(ff) in respect of the procedure to be observed by a labourtribunal in any proceedings before that tribunal underPart IVA, and
(h) in respect of all matters necessary for carrying out theprovisions of this Act or giving effect to the principlesthereof. ”
The Divisional Bench in Sheriff’s case agreed with Weera-mantry J. that regulation 16 did not fall within the rule-making .powers vested in the Minister by paragraphs (a), (b) and (ff) ofSection 39 (1). The majority of the Court upheld the validity ofthe Regulation on the ground that it fell within the ambit ofparagraph (h) as being “necessary for carrying out theprovisions of the Act.
UBSS) 71 N. L. R. 25.
(1971) 74 N. L. R. 505.
4SIVA SUPRAMANIAM, J.—Ceylon Workers’ Congress v. Superintendent,
The object of the Act as set out in the preamble is “to providefor the prevention, investigation and settlement of industrialdisputes. ”
Section 31 B (1) of the Act provides that a workman or a tradeunion on behalf of a workman who is a member of that unionmay make an application in writing to a labour tribunal forrelief or redress in respect of the following matters : —
“ (a) the termination of his services by his employer ;
the question whether any gratuity or other benefits are
due to him from his employer on termination of hisservices and the amount of such gratuity and thenature and extent of any such benefits ;
such other matters relating to the terms of employment,
or the conditions of labour, of a workman as may beprescribed. ” (It is common ground that no othermatters have been prescribed.)
Under sub-section (4) of that section, “any relief or redressmay be granted by a labour tribunal to a workman upon *anapplication made under sub-section (1) notwithstanding anythingto the contrary in any contract of service between him and hisemployer. ”
Under S. 31 C (1) “ it shall be the duty of the tribunal to makeall such enquiries into the application and hear all such evidenceas the tribunal may consider necessary and thereafter make suchorder as may appear to the tribunal to be just and equitable. ”
It is important to bear in mind that the application for reliefis not confined to cases where the termination of a workman’sservices is wrongful or unjustified and that the jurisdiction ofthe tribunal is not limited to the determination of pre-existinglegal rights and liabilities between the workman and hisemployer. The tribunal is empowered to grant relief notwith-standing anything to the contrary contained in a contract ofservice between the parties. By its order the tribunal may createnew rights which a workman may enforce. Under section 31B theright which a workman or a trade union possesses is the right tomake an application for relief. The duty of the tribunal is tomake a just and equitable order. Delay in making the applicationis a matter which the tribunal will be entitled to take intoconsideration in making a just and equitable order. Can it be saidthat for the purpose of carrying out the said provisions of theAct it is necessary to impose a time limit within which theapplication should be made, when the effect of such a bar is to
SIVA SUPRAMANIAM, J.—Ceylon Workers’ Congress v. Superintendent, 5
take away, after a certain period of time, a right which has beengiven to a workman under the Act ? The question is not whethera time limit is desirable or salutary but whether it is necessaryfor carrying out the provisions of the Act or to give effect to theprinciples thereof.
The Act itself does not contain any provision which limits thetime within which an application may be made underSection 31B (1) although a time limit is expressly provided forin respect of the filing of an appeal to the Supreme Court underSection 31D. The instances referred to by the learned ChiefJustice in his judgment in Sheriff’s case of limitation of rightsgranted by a statute by the imposition of a time bar are all caseswhere the limitation is contained in the statute itself. In thosecases the statute confers the right subject to the time limit. Noinstance has been cited of an unlimited right granted by a statutebeing validly limited by a regulation without an express powerconferred for that purpose by the Act.
Whether such a regulation is necessary or not has to bedetermined objectively and not from the subjective standpointof the Minister. Section 39 does not contain words such as “ inhis discretion ” or “ if he considers it expedient, ” or “ if he issatisfied ” which would imply that the need for the Regulationhas to be determined by the Minister subjectively.
In his judgment in Sheriff’s case the learned Chief Justicerelied on certain judicial dicta in the two English cases of Krusev. Johnson1 and Sparks v. Edwards Ash Ltd. ‘ In the former case,a by-law made by a local authority was challenged as void forunreasonableness. The by-law was in the following terms:—“No person shall sound or play upon any musical or noisyinstrument or sing in any public place or highway within fiftyyards of any dwelling house after being required by anyconstable or by an inmate of such house personally, or by hisor her servant, to desist.” The relevant provision of law underwhich the said by-law was made was as follows :—•“ The Councilmay, from time to time make such by-laws as to them seem meet
for the good rule and government of the borough”
A Divisional Bench of seven judges with one dissentient heldthat the by-law was valid. In the course of his judgment LordRussell of Killowen C. J., in a passage quoted by the learnedChief Justice, observed inter alia; “When the Court is calledupon to consider the by-laws of public representative bodiesclothed with the ample authority which I have described, andexercising the authority accompanied by the checks and *
* (1898) 2 Q. B. 91.
K 21353 (4/73)
(1943) 1 K.B. 223.
SIVA SUPRAMANIAM, J.—Ceylon Workers' Congress v. Superintendent,
safeguards which have been mentioned, I think the consideration>of such by-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be,as has been said, * benevolently ’ interpreted and credit oughtto be given to those who have to administer them that they willbe reasonably administered. ”
It will be seen that the by-law was one which the council wereentitled to make in their discretion and the only ground onwhich it was attacked was that it was unreasonable andtherefore void.
The passage in the judgment of Scott L. J. in Sparks v. EdwardAsh Ltd. on which the learned Chief Justice relied is asfollows: —
“If it is the duty of the Courts to recognise and trust thediscretion of local authorities, much more must it be so in thecase of a Minister directly responsible to Parliament andentrusted by the Constitution with the function of administeringthe department to which the relevant field of national activityis remitted. Over and above these grounds for trusting to theMinister’s constitutional discretion is the further considerationthat the regulations have to be laid on the table of both Houses. ”
In the above case certain regulations which were first madeby the Minister of Transport under the Road Traffic Act, 1934and laid on the table of both Houses and continued thereafterin the same form until the outbreak of war were challenged as• invalid on the ground of unreasonableness. In rejecting thatsubmission Scott L.J. made the observations quoted above. Apartfrom the ground of unreasonableness, the Minister’s power tomake the regulations was not challenged.
With the greatest respect to the learned Chief Justice we areof opinion that the decisions in the above two cases have noapplication to the question under consideration in the matterbefore us. Had Regulation 16 been attacked on the ground thatit is unreasonable, the above dicta of Lord Russell of KillowenC.J. and Scott L.J. with which, with great respect, we are inentire agreement, would have been apposite.
But the contention of the appellant is not that Regulation 16is invalid on the ground of unreasonableness but that it fallsoutside the rule-making power conferred on the Minister bySection 39 (1) (h). This contention is entitled to succeed unlesson the application of an objective test the Regulation can beheld to be necessary for carrying out the provisions of the Act.The regulation would prevent a workman after the expiry of a
SIVA SUPRAMANIAM, J.—Ceylon Workers' Congress v. Superintendent,7
period of three months from exercising the right given to himunder the Act to apply for relief. This would be so whether ornot the workman has good grounds for his inability or failureto make the application within the specified period. It thereforeeffects an arbitrary v limitation on a right granted by the Act to-the workman. In our view it would be doing violence to languageto hold that a regulation which has the effect of arbitrarily takingaway or at least limiting a right vested in a workman under theAct carries out the provisions of the Act. Is the Regulation, then,necessary to give effect to the principles of the Act ? The princi-ples underlying the provisions relating to Labour Tribunals arethat, on an application for relief or redress by a workman whoseservices have been terminated, the tribunal should make a justand equitable order having regard to all the facts and circum-stances of the case and untrammelled either by the contractualrights between the parties or by rules of evidence. A Regulationwhich restricts generally a workman’s right to apply for relief,irrespective of the facts and circumstances applicable to anyparticular case, far from giving effect to the principles of the Act,will go" counter to those principles by precluding a Tribunalfrom making a just and equitable order in cases where theremay be some delay but such delay is excusable or justifiable.
One" of the reasons set out by the learned Chief Justice forhis view that Regulation 16 did not deprive a workman of aright he had under the Act is that at the stage at which LabourTribunals were in fact established the Industrial Disputes' Regulations, inclusive of Regulation 16, were already in forceand that the workmen, when they wer^ first, able to exercisetheir right of access to Labour Tribunals had to do so in con-formity with Regulation 16 and that they had at no stage“ enjoyed any right which was later taken away by Regulation16’’..The question, however, is not whether a right enjoyed byworkmen at any particular stage was later taken away butwhethet the Act confers a right which the Regulation has, ineffect, taken away. The Regulations, though they were alreadyin operation when Labour Tribunals were in fact established,were not part of the Act but were made subsequently in thepurported exercise of the powers conferred on the Minister bysection 39 (1 )'(h) of the Ait. With the greatest respect we areunable to see how the fact that before the establishment ofLabour Tribunals workmen could not exercise the right givento them xinder the Act is relevant to a consideration of the natureof the right granted under the Act and the effect of the limitationcontained in the Regulation.
SIVA SUPRAMANIAM, J.—Ceglon Workers' Congress v. Superintendent,
We have next to consider whether the Regulation is neverthe-less valid by reason of the provisions of Section 39 (2) of theAct. Section 39 (1) sets out the ambit within which regulationsmay be made by the Minister. Section 39 (2) provides that noregulation so made will have effect until it is approved by theSenate and the House of Representatives and notification of suchapproval is published in the gazette and that every regulationso approved “shall be as valid and effectual as though it wereherein enacted ”. The learned Chief Justice has observed: “ Thusin this case we are invited to hold that Regulation 16 was notnecessary for the purpose of carrying out the provisions of theprincipal Act, despite the fact that Parliament, which hadprovided for the establishment of Labour Tribunals had approvedthis Regulation and thus permitted it to have legal effect. In thelanguage of Lord Russell, I am satisfied that * credit ought tobe given ’ to the Minister who made this Regulation and toParliament which approved it, that the Regulation was madeand approved because it was necessary for the purposes set out 'in paragraph (h) of Section 39 (1). ”
Section 39 (2) can apply only to regulations made within theambit of Section 39 (1). As to whether the Regulation in questionis within the ambit of Section 39 (1) of the Act has to be decidedby the Court on an application of an objective test and not byreference to the intentions of the Minister. The duty ofinterpreting the Act is a function of the Courts and not ofParliament. Can a Regulation outside the ambit of Section 39 (1)become valid by reason of the fact that Parliament subsequentlyapproved it ? In our opinion the subsequent approval by theSenate and the House of Representatives cannot make validthat which previously was invalid, and it is therefore only anintra vires rule approved by Parliament that will be “ as validand effectual as though it were enacted ” in the Act.
The question whether the Courts are competent to review thevires of a rule in cases where the Act provides that it shall beof the same effect as if it was contained in the Act wasconsidered by the House of Lords in Minister of Health v. TheKing (on the prosecution of Yaffe)
In that case the House of Lords considered Section 40 of theHousing Act 1925 which empowered the Minister of Health tomake an order confirming, with or without modifications, animprovement scheme made under the Act. Sub-section 5 of theSection provided that “the order of the Minister when madeshall have effect as if enacted in this Act ”. It was held that the 1
1 (1931) A. O. 494.
SIVA SOPRAAIANTAM, J.—Ceylon Workers' Congress v. Superintendent,0
provision contained in sub-section 5 did not preclude the Courtfrom calling in question the order of the Minister where thescheme presented to him for confirmation was inconsistent withthe provisions of the Act. In the words of Lord Tomlin (at p. 520),“The Minister’s jurisdiction to make an order is under the Actstrictly conditioned, and it is only when what is done fallswithin the limits of the conditions imposed that the orderreceives the force conferred by the sub-section As regards thequestion whether in cases where there is a further provision inthe Act that the rule should become operative only on its beingapproved by Parliament or after it is laid before Parliament andis not annulled within a fixed period of time, the compliancewith such a provision would render the rule immune fromjudicial scrutiny as to its vires and whether, therefore, even anultra vires rule would be valid and effectual as if it had beenenacted in the Act, no authority was cited before us in supportof such a proposition. The case of Institute of Patent Agents v.Lockwood1 cannot be regarded as authority for that propositiondespite Lord Herschell’s expression of opinion to that effect(concurred in by Lord Russell of Killowen) since it wasunanimously held in that case that the rule under considerationby them was intra vires the Act under which it was made. LordMorris expressed a strong contrary opinion to that of LordHerschell and said “ I am of opinion that it is not only competentfor the Courts of justice to consider but that it is their dutyto consider whether the rules are ultra viresLord Watsonstated that the validity could not be questioned but he did soon the assumption that the rules were made in pursuance ofthe section in the Act.
The fact that in Lockwood’s case the House of Lords wasdealing with a rule which was admittedly intra vires the powersconferred on the rul$ -making authority under the Act should bekept in view when one is considering the dicta in that case andin this connection one should bear in mind the oft-repeatedcaution that dicta of judges should be understood in thebackground of the facts of the particular case they were dealingwith.
We are in agreement with the reasoning and conclusion ofWeeramantry J. in Ram Banda’s case that Section 39 (2) of theAct does not preclude the Courts from examining the vires ofRegulation 16 and that the said Regulation is ultra vires the rulemaking powers of the Minister under the Act. We are of opinionthat River Valleys Development Board v. Sheriff (supra) waswrongly decided.
(1894) A. a. 347.
Somaaundaram v. The Queen
The second ground of appeal is that the Regulation in question,even if intra vires the Act, is only directory in its effect and thatthe appeal should not therefore, in the circumstances of the case,have been dismissed on the ground that three months hadexpired from the date of termination of service. In view of theconclusion we have reached in regard to the validity of theRegulation in question, we do not consider it necessary toexamine this submission or to express our opinion on it.
We set aside the judgment and decree of the Supreme Courtand remit the case for the appeal to be heard on its merits.
The appellant Union is entitled to its costs of appeal in thisCourt as well as to the costs of the proceedings before theSupreme Court on 23rd February, 1972.
THE CEYLON WORKERS’ CONGRESS, Appellants, and SUPERINTENDENT, BERAGALA ESTATE,