ALAWWA AND 4 OTHERSV.
KATUGAMPOLA MPCS AND ANOTHER.
DR. AMERASINGHE, J.
SEPTEMBER 30, 1996.
Constitution – 13th Amendment art 154(G)(1), art 154(G)(8), art 154(H)4 Co-operative Employees Commission Act 12 of 1972 – Provincial Councils (Con-sequential Provisions) Act 12 of 1989 – Provincial Council list – Co-opera-tive Employees Commission (N.W. Province) – appointed by Provincial Min-ister – Validity – In the absence of a statute?
The 2nd Respondent was an employee of the 1st Respondent MPCS. Aftera disciplinary inquiry the 2nd Respondent's services were terminated, andshe appealed to the C.E.C. (N.W. Province) for redress.
1-3 Appellants the members of the CEC (NW Province) appointed by theProvincial Minister directed the 1st Respondent Society to reinstate and topay her a specific sum of money as compensation. The 1st Respondentthen sought to quash the said order in the Court of Appeal.
The Court of Appeal dismissed the application holding that
There is no institution known as CEC established to date by the NorthWestern Provincial Council by statute.
The Provincial Minister in charge of the subject could not have resortedeither to CEC Act 12 of 1972 and Provincial Councils (Consequential Provi-sions) Act No. 12 of 1989 to appoint members to a non-existing CEC.
The Petitioner cannot seek relief to quash an order which is ab initioinvalid as that order was not made in the exercise of Statutory power by the1-3 Respondent.
On appeal by the members of the commission:
ART 154(G)8 unequivocally serves to keep alive all the laws in force onmatters relating to the Provincial list, when a Provincial Council is estab-lished, subject to the specified limitations. The article also makes it clear asto when a law in force remains suspended and inoperative (not repealed) inthat Province and that is when subsequently the Provincial Council makesa statute on the same matter which is described in its long title as beinginconsistent with the law in force and when that statute receives assent andso long as it is in force.
Section 3 of Act, 12 of 1972 – CEC Act – read with Articles 154(G) (1) and(8) of the Constitution necessarily compels to recognise the lawful estab-lishment of a Co-operative Employees Commission in the North – WesternProvince.
Therefore the appointment of the 1 -3 Appellants by the relevant Minister isvalid and lawful.
APPEAL from the judgment of the Court of Appeal.
Case referred to:
1. In the matter of a Reference under ART 154(H) (4) of the Constitution for 'a determination relating to the Transport Board Statute – Take over of Assetsand liabilities of the North and Eastern Province Transport Board. S.C. 7/89(special) PPA/2/P.C./19 – SCM 22.2.1991.
R.K.W. Goonesekara with W. Dayaratne for Appellants.
No appearance for 1st Respondent.
2nd Respondent present in person.
Saleem Marsoof D.S.G. for A.G. as Amicus Curiae.
October 30, 1996.
The facts necessary for the determination of this appeal are brieflythese. The 2nd Respondent was an employee of the 1st RespondentMPCS . After a disciplinary inquiry, the 2nd Respondent's serviceswere terminated and she appealed to the Co-operative EmployeesCommission of the North Western Province for redress. The 1st to 3rdAppellants are members of that Commission having being appointed
by the Provincial Minister in terms of Provincial Councils (Consequen-tial Provisions) Act No. 12 of 1989 : and the 4th Appellant is itsSecretary.
The Commission after inquiry, directed by its order dated 22.7.93the 1st Respondent MPCS, to reinstate the 2nd Respondent and topay her a specific sum of money as compensation, within a giventime. The 1 st Respondent then applied to the Court of Appeal to issuea writ of Certiorari to quash the order of the Commission dated 22.7.93.The Court of Appeal dismissed the application holding that :-
There is no institution known as the Co-operative EmployeesCommission established to date by the North Western Provincial Coun-cil by statute;
The Provincial Minister in charge of the subject could not haveresorted either to Co-operative Employees Commission Act, No 12 of1972 or Provincial Councils (Consequential Provisions) Act, No. 12 of1989 to appoint members to a non existing Co-operative EmployeesCommission;
The Petitioner (presently the 1 st Respondent) cannot seek reliefto quash an order which is ab initio invalid as that order was not madein the exercise of statutary power by the 1 st to 3rd Respondents (present1 st to 3rd Appellants).
The appeal thus raises an interesting question of Constitutionalimportance relating to the application of the 13th Amendment to theConstitution. Article 154G (1) of the Constitution enables every Pro-vincial Council, subject to the provisions of the Constitution, to makestatutes applicable to the Province for which it is established, withrespect to any matter set out in "the Provincial Council List". In thatlist Item 17.3 refers to the "Provincial Co- operative Employees Com-mission". What of the Laws already in the statute-book dealing withthe delegated subjects mentioned In the Provincial Council List? No-where in the Constitution it Is stated that those Laws stand repealedwith the establishment of a Provincial Council for every province. AsMr. Goonesekera correctly points out, the answer to that question Iscontained In Article 1S4G (8). Unfortunately attention of the Court ofAppeal had not been drawn to that provIslon.That reads:-
"Where there is a law with respect to any matter on the ProvincialCouncil List in force on the date on which this Chapter [chapter XVIIAinserted by the 13th Amendment] comes into force, and a ProvincialCouncil established for a Province subsequently makes a statute onthe same matter and which is described in its long title as being incon-sistent with that law, then, the provisions of the law shall with effectfrom that date on which that statute receives assent and as long asthat statute is in force, remain suspended and be inoperative withinthat Province.”
In my view this Article unequivocally serves to keep alive all thelaws in force on matters relating to the Provincial Council List, when aProvincial Council is established, subject to the specified limitations.[See in the matter of a Reference under Article 154H (4) of the Consti-tution for a determination relating to theTransport Board Statute -Takeover of Assets and Liabilities of Northern and Eastern Province Trans-port Board.(1)
Thereby in the first place it eliminates a situation where no law willprevail on those topics until a Provincial Council makes statutes; sec-ondly it obviates the formidable task on the part of a Provincial Coun-cil to legislate virtually overnight, a mass of statutes relating to sev-eral subjects in that list, so as to substitute what is already in forceenacted perhaps during a long course of years. The Article also makesit clear as to when a law in force remains suspended and inoperative(not repealed) in that Province: and that is when subsequently theProvincial Council makes a statute on the same matter which is de-scribed in its long title as being inconsistent with the law in force andwhen that statute receives assent and so long as it is in force.
Let me now turn to the provisions of the Co-operative EmployeesCommission Act No 12 of 1972. Section 3 reads "for the purpose ofthe Act, an authority known as the Co-operative Employees Commis-sion shall be established".This section read with Articles 154G(1) and(8) of the Constitution necessarily compels us to recognize the lawfulestablishment of a Co-operative Employees Commission in the NorthWestern Province. Therefore, the appointment of the 1st to 3rdAppellants by the relevant Minister in charge of that function as Chair-man and members of the Commission respectively under the provi-
sionsof the Provincial Councils (Consequential Provisions) Act No 12of 1989 is valid and lawful.
For the above reasons, we set aside the judgment of the Court ofAppeal and send the matter back for consideration of the applicationfor writ on its merits. The Commission was not made a party by thePetitioner (present 1st Respondent) on the assumption that it was nonexistent; steps should be taken to add the Commission as a party. Theappeal is allowed with no costs. The Registrar is directed to send therecord back to the Court of Appeal as expeditiously as possible toenable the Court of Appeal to hear and determine the matter at itsearliest convenience.
AMERASINGHE, J. -1 agree.
ANANDACOOMARASWAMY, J. -1 agree.
ALAWWA AND 4 OTHERS v. KATUGAMPOLA MPCS AND ANOTHER