SRI LANKA GENERAL WORKERS UNIONV.
DR. AMERASINGHE, J.
S.N. SILVA, J.
L.T. NO. 1/147/91.
NOVEMBER 16, 1995.
Industrial Disputes Act – Amending Act 32 of 1990 – section 31D- Appeals toHigh Court – Section 31D(6) – Accompanied by certificate that security isfurnished – Directory or Mandatory.
On 16.7.92 the Labour Tribunal made an order awarding the Applicant Re-spondent • Appellant a sum of Rs. 86,400/- as compensation; on 28.7.92the Respondent – Appellant Respondent lodged a Petition of appeal; thecertificate re-security under section 31D(6) was neither annexed to or filedsimultaneously with the petition of appeal, the security was deposited 7days after the period of 30 days specified by section 31D(6).
The preliminary objection that the appeal should be rejected because asum of Rs. 86,400/- had not been deposited by way of security at the timethe appeal was filed was overruled by the High Court. On appeal.
(1) Failure to deposit the security in time is not necessarily fatal, section31 (D) does not specify a time limit for the deposit of security in the case ofan application in Revision or a writ application. However the certificate isrequired to accompany a writ application (section 31D(8)) indicating thatsecurity can be deposited shortly before the application is made. There isno similar requirement in the case of a revision application; but undoubt-edly, in dealing with a revision application the Court will exercise its discre-tion to require a Petitioner to deposit the security required by section 31 D(4)but in all such cases the deposit will generally be made more than 30 daysafter the impunged order. This suggests that the legislature did not considerthat in every case whether appeal revision or writ the security should bedeposited within 30 days of the impunged order.
Per Fernando, J.
"If thirty days is not mandatory for writs and revision, for what reason shouldbe mandatory in the case of an appeal, this is some indication although notconclusion, that the legislature did not regard the 30 days requirement asmandatory.
"Thus in a variety of contents, terms and conditions relating to the preferringof an appeal have been held to be Directory, in the absence of compellinglanguage, I hold that the time limit of 30 days for the deposit of security laiddown by section 31D is not mandatory.
AN APPEAL from the High Court:
Cases referred to:
Karunadasa v. Wijesinghe 1986-1-SLR 358, 364.
Kiriwanthie v. Navaratne – 1990-2-SLR 393.
Sameen v. Abeywickrema (1963) 64 NLR 553.
4(1). Edirisinghe v. Navaratnam 1985-1-SLR 100.
4(2). Edward v. de Silva 46 NLR 342.
Abdul Cader v. Sittinisa (1951) 52 NLR 536.
Tillekeratne v. Wijesinghe (1908) 11 NLR 270.
Kadiragamadas v. Suppiah (1958) 56 NLR 172
Sandanam v. Jamaldeen (1969) 71 NLR 145.
Bilindi v. Attadassi Thera (1945) 47 NLR 7 (PC).
Murugesu v. Arumugam (1936) 16 CLR 228.
Martin v. Suduhamy 1991-2 SLR 279.
V.C. Motilal Nehru, P.C. with Ms. P. Joseph for Applicant-Respondent- Ap-pellant.
Chula die Silva, P.C. with M. Jayawardane, Lyn Amarasuriya and M. Maharooffor Respondent-Appellant-Respondent.
November 27, 1995.
The question of law that arises in this appeal involves theinterpretation of section 31D of the Industrial Disputes Act, introducedby the amending Act No. 32 of 1990, the relevant provisions of whichare as follows:
(4) Every employer who –
appeals to a High Court against an order of a
labour tribunal or makes an application in revision against anysuch order, or
makes an application for the issue of an order in the nature of
a writin respect of an order made by (the President of
shall furnish to such labour tribunal, security in cash
The President of every LabourTribunal shall cause all moneysfurnished as security under subsection (4) to be deposited in anaccount bearing interest, in any approved bank in Sri Lanka.
(6) Every petition of appealshall bear uncancelled
stamps to the value of five rupees and in every case where theapplicant (sic) is required to furnish security, be accompanied bya certificate issued under the hand of the President of the LabourTribunal to the effect that the appellant has furnished such secu-rity. The petition of appeal shall be filed in the High Court within a
period of thirty daysreckoned from the date of the order
from which the appeal is preferred.
(8) Every application referred to in paragraph (b) of subsection (4)shall be accompanied by a certificate issued under the hand ofthe President of the Labour Tribunal to the effect that the appli-cant has furnished the security he is required to furnish by thatsubsection.
It is common ground that on 16.7.92 the LabourTribunal made anorder awarding the Applicant-Respondent-Appellant (the Appellant) asum of Rs. 86,400/- as compensation; that on 28.7.92 the Respondent-Appellant-Respondent (the Respondent) filed a petition of appeal thatthe certificate referred to in section 31D (6) was neither annexed to,nor filed simultaneously with, the petition of appeal; that a sum of Rs.86,400/- was required as security was deposited seven days after theperiod of thirty days specified by section 31 D(6).
When the appeal was taken up for hearing, the High Courtconsidered a preliminary objection taken by the applicant; that theappeal should be rejected because a sum of Rs. 86,400/- had not beendeposited by way of security at the time the appeal was filed, and thatthe petition of appeal was a nullity because it was not "accompaniedby" the certificate. The High Court overruled this objection.
In the application for special leave, and in the Applicant's writtensubmissions, the question for decision was stated to be whether theHigh Court had erred in holding that the provisions of section 31 D(6)are directory and not mandatory; and that being mandatory the appealshould have been rejected.
No other issue was raised. Special leave was granted upon thequestion whether furnishing security within thirty days and tenderingthe certificate, in terms of section 31 D(6), are mandatory.
The High Court held that these requirements were plainly directorythat the legislature intended that the Court should have a discretion inthe matter; that the matter could not be determined mechanically, butafter taking into account the nature of the irregularity, the circumstancesunder which it occurred, and the prejudice to the other party; and that"accompany" also meant to "supplement" to remedy deficiencies byadding a thing or a part later. Mr. Nehru, RC. who appeared for the
Applicant, conceded that there had been no inquiry or argument inregard to the circumstances of the delay, and that no alternativesubmission had been made that the appeal should be rejected becausethe Respondent had failed to establish facts which would justify thedelay condoned or excised.
Mr. Nehru contended that there was no valid petition of appealunless all the requirements of section 31 D(6) were satisfied the petitionhad to be filed within thirty days, it had to bear uncancelled stamps tothe value of five rupees, security had to be deposited within thirtydays, and the certificate had to "accompany" (in the sense of beingannexed to or filed simultaneously with) the petition. If any of theserequirements was not satisfied, there was no valid invocation of thejurisdiction of the High Court, which therefore had no option but toreject the appeal.
These provisions have to be interpreted in the light of the purposeof the amending Act of 1990. There can be no doubt that the legislativeintention was to ensure that at the conclusion of the appellateproceedings, however lengthy, there would be a fund available to satisfythe workman's entitlements; and, by providing for interest, to ensurethat the lapse of time and inflation would not unduly erode thoseentitlements (see section 31D(6), which provides for the disposal ofthe amount deposited as security). It was pointed out to Mr. Nehru thatan Appellant might file his appeal the day after the Tribunal made itsorder, and deposit the security on the 29th day; or that after depositingthe security, he might find that the President of the Tribunal was onleave, or had some administrative difficulty in issuing the certificate,or, to take an extreme case, was wrongfully withholding the certificate;or that the certificate had been stolen after it was obtained. He wasunable to cite any authority, or to give any compelling reason, justifyingthe view that these provisions were so strict as to require complianceto the very letter, even where the object of the provisions had beenachieved.
Further, as Ranasinghe, J. (as he then was) observed in Karunadasav. Wijesinghe^in construing provisions dealing with the right of appeal,a Court ought to prefer a broad construction which would preserve toan aggrieved party that right, rather than a strict construction whichmight abridge it.
In my view, while the primary meaning of the phrase "beaccompanied by" is "shall have annexed to it" or "shall be filedsimultaneously with", that phrase is wide enough to permit the petitionof appeal to be perfected, or "supplemented", within the prescribedtime, and taking the purpose of the amendment into consideration,this wider interpretation must necessarily be preferred. Similar languageoccurs in Rule 46 of the Supreme Court Rules, 1978; that a petitionmust "be accompanied by" certain material documents, Rule 46 wasconsidered by me in Kiriwanthie v. Navaratne(2) where I held that strictor absolute compliance was not essential:.
"it is sufficient if there is compliance which is
substantial • this being judged in the light of the object and purpose ofthe Rule. It is not to be mechanically applied.
Similarly, in Sameen v. AbeywickremaP> the Privy Council heldthat the requirement that notice of security be tendered "forthwith" didnot mean that it should be given the same day. I hold that the HighCourt does not have any discretion to reject an appeal, where there iscompliance with all the requirements, even if not simultaneous, withinthe prescribed period. The purpose of section 31 D(6) is not only toensure the availability of an interest – bearing fund, but to compel theAppellant to create that fund not more than thirty days after the impugnedorder. So long as that object is achieved, it matters not that the appealis filed before security is deposited, or the certificate is filed after thepetition.
If a requirement is not complied with within the prescribed time,different considerations arise. Where the requirement goes tojurisdiction, it is, unquestionably, mandatory. The failure to invoke thejurisdiction of a Court or tribunal within the prescribed time limitgenerally results in the Court or tribunal lacking the power to deal withthe matter. But even this is subject to exceptions. Thus where themaxim lex non coglt ad Impossibillia is applicable, this Court willentertain fundamental rights application even though not filed withinthe time limit of one month fixed by Article 126 of the Constitution;Edirisinghe v. Navaratnanf (1> in my view, although the petition of appealmust be filed within thirty days, the other requirements of section 31D(6) relate only to form, and not to the invocation of the jurisdiction ofthe High Court. In Edward v.de Silva,4™ Soertez, ACJ. made thedistinction clear;
"Some of those rules are so vital, being of the spirit of the law, ofthe very essence of judicial action, that a failure to comply withthem would result in a failure of jurisdiction or power to act, andthat would render anything done or any order made thereafterdevoid of legal consequence. The failure to observe other rules,less fundamental, as pertaining to the letter of the law and tomatters of form would not prevent the acquisition of jurisdictionor power to act, but would involve exercise of it in irregularity".
Thus the failure to join a necessary party was held to be a fataldefect.The failure to affix a five rupee stamp on the petition of appealcannot be regarded as a defect which is necessarily incurable after theexpiry of the appealable period. So also the failure to tender thecertificate, if the security has in fact been deposited in time – becausethat defect does not prevent the fulfilment of the purpose of section31D (6) as in Sameen v. Abeywickrame and Kiriwanthie v. Navaratne.(supra)
However, the failure to deposit the security in time is undoubtedlymore serious, but in my view it is not necessarily fatal, for severalreasons.
Section 31D does not specify a time limit for the deposit of securityin the case of an application in revision or a writ application. However,the certificate is required to accompany a writ application (of section31D (B)) indicating that security can be deposited shortly before theapplication is made. There is no similar requirement in the case of arevision application, but undoubtedly, in dealing with a revisionapplication, the Court will exercise its discretion to require a Petitionerto deposit the security required by section 31 D(4). But in all such casesthe deposit will generally be made more than thirty days after theimpugned order. This suggests that the legislature did not considerthat in every case – whether appeal, revision or writ – the security shouldbe deposited within thirty days of the impugned order. If thirty days isnot mandatory for writs and revision, for what reason should it bemandatory in the case of an appeal? In my view, this is some indication,
although not conclusion, that the legislature did not regard the thirtyday requirement as mandatory.
Further, a person who has a genuine difficulty in furnishing securitywithin thirty days may, without appealing move in revision, and attemptto justify invoking the revisionary jurisdiction on the basis that thiswas a good reason why he could not appeal indeed, it would seem thatin the appeal itself he could ask the court to act in revision. Thus inAbdul Cader v. Sittinisa(5) a party had deposited only Rs. 20/- insteadof Rs.25/-, as fees for typewritten copies: while declaring the appeal tohave abated, Gratiaen, J acted in revision and granted relief, observing:
"until the present rule is relaxed I see no reason why the
revisionary powers of this Court should not be exercised in appropriatecases".
It is at least arguable therefore that the High Court could havedealt with the merits of this appeal in the exercise of its revisionarypowers, treating the delay in depositing security as not being a bar torevision proceedings: revision being a discretionary remedy, the Courtwould have had to consider the nature of the default, the circumstancesin which it occurred, the prejudice to the other party, and the need toavoid a miscarriage of justice.
In Tillakeratne v. Wijesinghe,(6> a preliminary objection was takenthat the petition of appeal was not duly signed; although it purported tobe signed by the appellant proctor, the proxy in his favour (filed at theinstitution of the action) had never been signed by the client. Hutchinson,
J., held that the mistake could be rectified by the Appellant signingthe proxy, and that such signature would operate as a ratification of allthe acts done by the proctor in the action. This was followed byGunasekera, J. in Kadiragamadas v. SuppiahF1 where the petition ofappeal had been filed by a proctor who did not hold a proxy; thisirregularity was cured by the filing of a proxy after the appealable period.
Apart from the purpose of the provision, it is necessary to considerwhether its language compels the view that it is mandatory. Twodecisions dealing with stamping suggest the proper approach. InSandanam v. Jamaldeen,™ at 146, Fernando, CJ referred to severaldecisions dealing with section 755 of the Civil Procedure Code (which
then provided that "any party desirous to appeal may within the timelimited for presenting a petition of appeal, and upon his producing theproper stamp, be allowed to state viva voce his wish to appeal”) whichhad held that this was a special statutory provision of appeal. But inregard to an application for leave to appeal to the Privy Council, heheld that there was no special statutory provision concerning the timeof stamping, and that a petitioner could be allowed time to supply thedeficiency. He cited Lord Goddard's observations in Bilindi v. AttadassiTheroS®
.. it would be an unfortunate and probably unintended
result of the stamp ordinance if a litigant should be debarred froman appeal on a ground which is from a practical point of viewcapable of easy remedy without injustice to anyone"
Of course, thereafter a party cannot expect further indulgence. InMurugesu v. Arumugarrfi'0) 228, Fernando, AJ. held that where the Courthad allowed a party time to perfect his appeal, but the party failed tocomply within that time, then his appeal had to be rejected. Similarly,in Martin v. Suduhamy<11> party who had intentionally refused to comply,after becoming aware of the defect, was refused relief.
Martin v. Suduhamy (supra) dealt with non. compliance provisionsrequiring security for costs, in civil proceedings. There is a difference,in that section 759(2) of the Civil Procedure Code expressly conferspower to give relief. However, the deposit of security (whether in respectof an award, or for the costs of appeal) is not a matter upon which thejurisdiction of the Court depends but a term or condition relating to itsexercise.
Thus in a variety of contents, terms and conditions relating to thepreferring of an appeal have been held to be directory, in the absenceof compelling language. I hold that the time limit of thirty days for thedeposit of security, laid down by section 31D is not mandatory.
That does not mean that the time limit can be ignored. Where theobjection is taken, the burden is on the Appellant to satisfy the HighCourt that it should exercise its discretion to entertain the appeal,after considering the nature of the default, the circumstances, in whichit occurred, and the prejudice to the other party.
Mr. Nehru contended that the Respondent in this case had failed todischarge that burden. However, the preliminary objection that wastaken was limited in scope; that the time limit was mandatory, and forthat reason alone the appeal should be rejected. And that was the onlyquestion on which special leave was sought and granted.The objectionwas never taken that the Respondent had failed to prove facts andcircumstances justifying the exercise of the discretion of the Court inhis favour. We accordingly did not permit the Applicant to raise thatmatter for the first time in appeal.
I affirm the order of the High Court in regard to the preliminaryobjection, and dismiss the appeal. Having regard to the circumstancesin which this question of law of general importance arose for decision,I make no order for costs. The record will be sent back to the HighCourt immediately.
AMERASINGHE, J. -1 agree.
SILVA, J. – I agree.
SRI LANKA GENERAL WORKERS UNION v. SAMARANAYAKE