Galigamuwa v. Air Lanka Ltd.,
v.AIR LANKA LTD.,
COURT OF APPEAL.
H. W. SENANAYAKE, J.
LT. NO. 21/2045/83
OCTOBER 12th AND DECEMBER 04th, 1992.
Industrial Law – Default of appearance – Regulation 28 of Regulations framed
under Section 39 of the Industrial Disputes Act – Duty to apply first to the Tribunal
– Inherent right of the Tribunal – Power of the Appellate Court.
Where the Labour Tribunal had dismissed the application of the applicant for
non – appearance.
.The Tribunal has the inherent right to set aside its own orders if theorder was made per incuriam or on non – service of notice or summonson the parties or on only good cause being shown by the defaulting partyfor absence on the date of inquiry.
The Applicant – Appellant should have made his petition to the originalTribunal. He could have explained his default and satisfied the Tribunalthat there was good cause for his default.
Regulation 28 which permits the Tribunal to proceed with the matternotwithstanding the absence of a party without sufficient cause being shown,is not mandatory and must be considered with reference to the facts ineach case.
The Appellate Court has the power and the right to intervene but not inall ex parte orders.
Sri Lanka Law Reports
 1 Sri L.R.
APPEAL from the order of the Labour Tribunal.
Faiz Mustapha, P.C. with H. Withanachchi for appellant.
J. B. L. de Silva for respondent
Cur. adv. vult.
March 12, 1993.
This is an appeal against the order of the learned President dated24.5.84 where he dismissed the application of the Applicant for defaultof appearance.
The learned Counsel for the Applicant-Appellant in his writtensubmissions put the matters in issue under three heads :
Whether the Labour Tribunal was acting reasonably andjustifiably in dismissing the application in the absence ofthe Applicant.
Whether the Appellate Court can intervene in a matter wherethe dismissal was made ex parte for non-appearance.
Whether the Appellant has explained his default satisfactorily.
With reference to issue (a) the submission was that the Tribunalhad dismissed the application on a presumption that the Appellantwas no longer interested in his application, and he submittedthat such presumption is not warranted in every case as thenon-appearance as in the present case was beyond the control ofthe Appellant. He further submitted that the learned President shouldhave borne in mind Regulation 28 framed under the provisions ofSection 39 of the industrial Disputes Act.
The said regulation reads as 11 if without sufficient cause beingshown any party to any proceedings before an Industrial Court orany Arbitrator or a Labour Tribunal fails to attend or to be represented,the Court or Arbitrator or Labour Tribunal as the case may be, mayproceed with the matter notwithstanding the absence of such party."
Galigamuwa v. Air Lanka Ltd., (Senanayake, J.)
His position was that there was a duty cast on the Tribunal inview of the fact the Respondent had admitted termination, to inquireinto the matter in accordance with the equitable jurisdiction vestedwith the Labour Tribunal under the Industrial Disputes Act. I cannotagree with the submission of the learned Counsel. Each case hasto be viewed on the particular facts of the case. In the instant casethe Applicant was a Probationary. The Tribunal was aware of thepleadings filed before it. It clearly established that the Applicant'sservices were terminated when he was on Probation. It is settled lawthat the Applicant in such instance must prove that the Respondentacted with malice and or mala fide. There was no evidence for theLearned President to consider such a position unless the Applicanthas given evidence or led some evidence. In my view the Regulation28 is not mandatory and must be considered with reference to thefacts in each case.
The learned Counsel submitted that the Appellate Court couldintervene. I am of the view the Appellate Court had the power andthe right to intervene but not in all ex parte orders. The Applicant-Appellant was aware of the date of inquiry and if he was ill it washis duty to communicate the fact and submit the relevant medicalcertificates to the Tribunal. The Tribunal was in a better position toexamine the documents and his petition and affidavit and make asuitable order. The Tribunal has the inherent right to set aside itsown orders if the order was made per incuriam or on non-serviceof notice or summons on the parties or any good cause being shownby the defaulting party for absence on the date of inquiry. In my viewthe Applicant-Appellant should have made his petition to the originalTribunal. This court has expressed this view earlier and I do not seeany reason to take a different view on this matter with all due respectto the decisions cited by the Learned Counsel.
The Applicant-Appellant had the opportunity and a duty to explainhis position to the Tribunal but he had taken time to come to theAppellate Court when he could have explained his default and satisfiedthe Tribunal that there was good cause for his default. The originalCourt had no opportunity to test the Applicant either regarding theaverments in the affidavit or the Medical Certificate.
 1 Sri L.R.
Sri Lanka Law Reports
I am unable to agree with the submission of the learned Counsel.In the circumstances I affirm the order and dismiss the appeal withcosts fixed at Rs. 500.
GALIGAMUWA v. AIR LANKA LTD