Amerajeewa v. University of Colombo
v.UNIVERSITY OF COLOMBO
GOONEWARDENA J. ANDWADUGODAPITIYA, J.
S. C. APPEAL NO. 12/93.
C. A. APPEAL NO. 271/88.
LT APPLICATION NO. 8/1193/96.
JUNE 11, 1993.
Industrial Dispute – Wrongful termination of services of employee – Death ofemployee – applicant- Dismissal of application – Substitution of widow – areright of the applicant in an application to the Labour Tribunal transmissible onhis death when the application is still pending? Right of appeal of person nota party and seeking substitution – Audi alterm partem rule of natural justice -Res litigiosa – S. 31C(2) of Industrial Disputes Act.
When an applicant seeking relief in the Labour Tribunal dies when the applicationis pending, the question that arise is whether rights in the Res litigiosa aretransmissible and if so, to whom. When the application for substitution by thedead applicant's* widow was dismissed without affording her a hearing therewas a breach of the audi alteram partem rule of natural justice. This makes theex -parte orders of dismissal of the application by the Labour Tribunal on beinginformed of the death of the original applicant null and void.
Although the Industrial Disputes Act does not prescribe the procedure to befollowed for substitution in the room of a applicant who dies during the pendingof the application, s. 31C(2) confers powers upon the Tribunal to devise a suitableprocedure.
Arnolds v. Gopalan (1961) 64 NLR 153.
Goonetilleke v. Walker and Sons Co. Ltd. (1977) 79(2) NLR 563, 564.
Menchinahamy v. Muniweera (1950) 52 NLR 409, 415.
Sri Lanka Law Reports
 2 Sri LR.
APPEAL from Judgment of the Court of Appeal.
Chula de Silva, P.C. with A G. I. Tilakawardene, Mrs. S. Meevanapalana andM. Hussein for – appellant.
Gomin Dayasiri with Ajith Perera and Manjula Sirimanne for Employer – respond-ent.
Cur. adv. vult.
June 23, 1993FERNANDO, J.
The Appellant is the widow of a store-keeper (“the Applicant") whowas first employed by the Respondent in 1979. Upon the terminationof the Applicant's services on 25.2.86, he made an application tothe Labour Tribunal on 5.4.86, alleging that his services had beenwrongful terminated and praying for re-instatement with back wages,compensation for wrongful termination, and other equitable relief.
After the evidence of two witnesses had been led, the Applicantdied on 5.12.87, in consequence of a motor accident. The case wascalled on 13.5.88, and was postponed for 21.6.88 as the applicantwas not present. On 21.6.88 the applicant's (former) representativewas present and the Tribunal was informed that the Applicant haddied. Thereupon the President made order:
“Both parties state that the Applicant has died. This applicationcannot therefore be considered. The application is dismissed."
A formal order in identical terms was made on 1.8.88. On 5.8.88the Appellant filed a petition and affidavit in the Tribunal stating thatshe, being the widow of the Applicant, was entitled to be substitutedin his place, that she wished to continue with the proceedings torecover compensation and damages for wrongful termination, gratuityand other reliefs; she prayed that she be substituted and that theapplication be fixed for further hearing. The Labour Tribunal took noaction in respect of that petition. On 15.8.88 the Appellant filed apetition of appeal to the Court of Appeal stating:
Amerajeewa v. University of Colombo (Fernando, J.)
“5. By an order dated 1.8.88 received by the Appellant on 5.8.88,the learned Labour Tribunal President dismissed the appli-cation on the ground that the applicant had died and thereforethis application cannot be considered.
The Appellant is the widow of the above Applicant and isentitled in law and in equity to continue the said application and toobtain relief.
8(c) The learned President erred in Law in failing to address hismind as to whether the said decease had vested rights whichwere transmissibleAransmitted to his heirs.
The learned President erred in law in failing to issue noticeson the heirs of the said deceased prior to making the saidorder.
The learned President violated the principles of Natural Justicein not affording the appellant an opportunity of being heardprior to making the said order of dismissal."
She prayed that the order dated 1.8.88 be set aside, that theTribunal be directed to substitute her in place of the deceased, andthat the Tribunal be directed to hear the evidence and make a justand equitable order. The Court of Appeal having dismissed the appeal,the Appellant*comes to this Court with special leave to appeal.
The essence of the Applicant's case was that the rights of theApplicant in the pending application were rights transmissible uponhis death ; that upon his death those rights devolved on her ; thatshe was thus a person entitled to an opportunity of being heard beforeany order adverse to the interests of the heirs of the deceased wasmade ; that the Tribunal had erred in failing to give such a hearing;further, that the Tribunal had failed to consider whether the rightsof the deceased were transmissible, and if so, to whom, and hadinstead wrongly assumed that upon the death of an applicant theapplication had necessarily to be dismissed ; and that therefore theorder dismissing the application and subsequent proceedings shouldbe set aside, and fresh proceedings taken, as from the date ofdismissed, in regard to substitution and thereafter upon the merits.
Sri Lanka Law Reports
 2 Sri L.R.
The principal questions which the Court of Appeal had to decide weretherefore whether the orders of 21.6.88 and 1.8.88 were wrong andvoid for failure of Natural Justice, and whether the Tribunal was wrongin assuming that upon the death of an applicant the right to sue didnot survive. There was also a question as to whether the Appellant,who not been substituted, was entitled to file an appeal since shewas not a party ; the Respondent did not submit that the Appellanthad no right of appeal, and that question was not considered by theCourt of Appeal.
The Court of Appeal failed to deal with the question whether theaudi alteram partem rule had been breached. Without considering thefacts of the particular case, and the nature of the rights assertedand the reliefs prayed for, the Court proceeded to hold that a contractof employment was of a personal nature, that the death of theworkman would bring that contract to an end, that no interest devolvedon the heirs who were accordingly not entitled to continue theproceedings. In coming to this conclusion reliance was placed on thedecision in Arnolda v Gopalan, <1) that a Labour Tribunal had nojurisdiction under the Industrial Disputes Act to order the widow orlegal representative of a deceased employer to pay the workman anywages, compensation or gratuity due for the period that he wasemployed under the deceased. That case however dealt with a verydifferent situation. There it was the employer who had died, and deathwas before any application had been filed. That case did not consideror decide the position in regard to the death of an applicant afterproceedings had commenced. There is at least one important dif-ference, in that death before litigation commences only involves thequestion of transmissibility of (contractual) rights, whereas deathpending litigation involves the further question of transmissibility ofa res litigiosa (cf. Lee, Roman-Dutch Law, 5th ed, P. 238). The Courtof Appeal also referred to an observation in Goonetilleke v. WalkerSons & Ltd. (2), that there is no legal machinery in the Act forsubstitution in place of any deceased party in the course of theproceedings before the Tribunal ; the Court of Appeal accordinglyheld that there is nothing in the statute which empowered the Appellantto be substituted. That observation was clearly an obiter dictum, forwhat was there considered was not death pending proceedings inthe Tribunal, but the death of an applicant-appellant pending appeal.
Amerajeewa v. University of Colombo (Fernando, J.)
This appeal has been referred to this Bench of five Judges aslearned President's Counsel for the Appellant stated that he wascontesting the correctness of the decision in Arnolda v. Gopalan (,)and the obiter dictum in Goonetilleke v. Walker Sons Co. Ltd. lz*
Upon being notified of the death of the Applicant, two questionsarose for determination by the Tribunal : Whether the rights of thedeceased Applicant, in the pending application, were rights whichwere transmissible upon death ; if so, upon whom did those rightsdevolve. These were questions of mixed fact and law. The Tribunalerred in assuming, without inquiry, that upon the death of the Applicantthe application had necessarily to be dismissed : this decision wasex parte because the person who had previously represented thedeceased Applicant had no longer any authority to represent eitherthe deceased or persons claiming through him. Any person claiminginterests on the basis that the Applicant rights were transmissibleon death should have been heard before determining those questions.While it is correct that the Industrial Disputes Act does not prescribethe procedure to be followed in such a situation, yet section 31C(2)confers powers upon the Labour Tribunal to devise a suitable pro-cedure. It was therefore incumbent upon the Tribunal to have takensome appropriate steps to give notice to interested persons so asto satisfy the basic requirements of Natural Justice. It was onlythereafter that the Tribunal could have proceeded to inquire into anddetermine those questions. This failure to do so renders the orderof 21.6.88 and all subsequent orders and proceedings null and void(see Menchinahamy v. Muniweera, (3>).
This Court is therefore not called upon at this stage of theproceedings to answer the two questions which the Labour Tribunalfailed to determine. It is therefore unnecessary to consider thecorrectness of the decision in Arnolda v. Gopalan <1) and the obiterdictum in Goonetilleke v. Walker Sons & Co Ltd, ® but this mustnot be assumed to be approval thereof.
The appeal is accordingly allowed. The Judgment of the Courtof Appeal, as well as the order dated 21.6.88 and all subsequentorders and proceedings in the Labour Tribunal, are set aside. TheLabour Tribunal is directed to call this case on 16.8.93 to fix a datefor inquiry ; and thereafter to inquire into and determine whether therights of the deceased Applicant were transmissible upon his death,and, if so, to whom, after hearing the Appellant and any other
Sri Lanka Law Reports
 2 Sri L.R.
interested persons. The Tribunal will hear and determine the appli-cation as soon as possible. The Appellant will be entitled to costs,in both Courts, in a sum of Rs. 5,000/-.
AMERASINGHE, J. – I agree.
DHEERARATNE, J. – I agree.
GOONAWARDENA, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal allowedcase sent back
AMERAJEEWA v. UNIVERSITY OF COLOMBO