SUPERINTENDENT HAPUGASTENNE ESTATE AND OTHERS
P. S, DE SILVA, C.J.,
AMERASINGHE, J. ANDKULATUNGA, J.
S.C. APPEAL NO. 22/93
C. KANDY NO. 74/91 (REV.),
L.T. HATTON NO. 10/7765/89MARCH 29,1994.
Industrial Disputes Act – Section 31D and 31DD as amended by Act No. 32 of1990 – Appellate and revisionary jurisdiction of the High Court over orders of aLabour Tribunal – Articles 105(1) (C), III (I), 138, 154P and 125 of the Constitution- Interpretation of the Constitution – Appeal to the Supreme Court from High
It was argued on behalf of the appellant, a clerk employed on an estate that theHigh Court of the Central Province cannot entertain her employer's application, toset aside by way of revision, an order of the Labour Tribunal in that –
Notwithstanding the Provisions of Act No. 19 of 1990. the High Court had nopower to entertain the application as the said Act purports to erode theexclusive jurisdiction of the Court of Appeal vested by Article 138 of theConstitution by adding to the jurisdiction conferred by Article 154 P(3) (b) ofthe Constitution.
The Judges of the High Courts of Provinces have not been duly appointed forwant of legislation contemplated by Article lll(l) of the Constitution (asamended by the 11th amendment to the Constitution) conferring powers onthe "High Court of Sri Lanka* established by Article lll(i).
Section 31DD of the Industrial Disputes Act as amended permits an appeal tothe Supreme Court from a final order of the High Court, made in the exercise of itsappellate or revisionary jurisdiction, in relation to an order of a Labour Tribunal. Asthe order of the High Court is not a final order, the appellant has no right ofappeal.
The High Court has jurisdiction to review orders of Labour Tribunals by way ofappeal or revision in terms of the provisions of the High Court of the Provinces(Special Provisions) Act No. 19 of 1990 read with Section 31D of the IndustrialDisputes Act as amended.
The Court referred to in Articles 105(1) (c), lll(l) and 154(2) of the Constitutionis one and the same Court Viz. the High Court of the Republic of Sri Lanka. TheJudges of the High Courts of the Provinces have been properly appointed.
Cases referred to:
Swastika Textiles Industries Ltd., v. Dayaratne (1993) 2 Sri L.R. 348.
Martin v. Wijewardena (1989) 2 Sri L.R. 409.
Wadigamangawa v. Wimalasuriya (1981) 1 Sri L.R. 287.
Piyadasa Gunaratne v. Allen Thambinayagam (1993) 2 Sri L.R. 355.
Siriwardena v. Air Ceylon Ltd., (1982) 2 Sri L.R. 544 (CA); (1984) 1 Sri L.R. 286(SC)
Seefa Wijetunge v. Meeyan S.C. Appeal No. 55 of 1988 S.C. Minutes of 1stDecember, 1989.
APPEAL from the judgment of the High Court, Kandy.
S. K. Sangakkara with J. C. Boange for appellant.
Asoka de Silva, D.S.G with U. Egatahewa for respondents.
Cur. adv. vult.
The services of the appellant, a clerk employed on an estate whichis presently being managed by the 5th respondent (Sri Lanka StatePlantations Corporation) were terminated on 19.04.89 by themanagement. She made an application to the Labour Tribunal.Before the commencement of the inquiry she moved to amend herapplication to add the 4th and 5th respondents and a prayer forreinstatement. This was allowed by the Tribunal. The 2nd and 3rdrespondents (The Janatha Estate Development Board No. 1 Dikayaand the Janatha Estate Development Board Colombo, respectively)applied to the High Court of the Central Province to set aside the saidorder of the Labour Tribunal, by way of revision (in the exercise of therevisionary jurisdiction vested in that Court by S. 3 of the High Courtof the Provinces (Special Provisions) Act No. 19 of 1990. Theprocedure for the exercise of such jurisdiction is found in S.5 of thesaid Act and S. 31D(4) and (7) of the Industrial Disputes Act asamended by Act No. 32 of 1990.
The appellant raised a preliminary objection to the High Courtentertaining the revision application, on the following grounds.
that notwithstanding the provision of Act No. 19 of 1990, the HighCourt has no power to entertain the said application in that thesaid Act (not being a constitutional amendment or an Act passedwith the requisite special majority) purports to erode, the exclusivejurisdiction of the Court of Appeal vested by Article 138 of theConstitution by adding to the jurisdiction conferred upon the HighCourt by Article 154P (3) (b) of the Constitution; and that thedecision of this Court in Swastika Textile industries Ltd. v.Dayaratne(1) which upheld the jurisdiction of the High Court toreview orders of Labour Tribunals by way of appeal or revision interms of the provisions of Act No. 19 of 1990 read with S.31D ofthe Industrial Disputes Act as amended is per incuriam. It wasargued that the attention of this Court had not been drawn to thedecision in Martin v. Wijewardenam and the dicta of SamarakoonC.J, in Wadigamangawa v. Wimalasuriya™
that the Judges of the High Courts of the Provinces have not beenduly appointed under the Constitution. It was submitted that underA.154P(2) Judges of the High Court of Provinces have to benominated from among the Judges of the High Court of SriLanka established by A. 111(1) of the Constitution (as amended bythe 11th Amendment to the Constitution) to exercise "suchjurisdiction and powers as the Parliament may by law vest orordain"; that pending such legislation, Judges cannot beappointed to the “High Court of Sri Lanka”; that the Court which isstill operative is the High Court of the Republic of Sri Lankareferred to in A. 105(1) (c); and hence the Judges of the HighCourts of the Provinces have not been properly appointed.
The High Court overruled the preliminary objection whereupon theappellant applied to the High Court for leave to appeal to this Court,“in terms of S.9 of Act No. 19 of 1990”. The High Court granted leavewhich enable this appeal.
In Piyadasa Gunaratne v. Alan Thambinayagam,,) this Court hrthat S.9 of Act No. 19 of 1990 does not permit direct appeals to JCourt from orders made in the exercise of revisionary jurisdictionthe High Court of a Province. S.9 permits an appeal from a final ordeor judgment etc; made in the exercise of the appellate jurisdiction ofthat Court which involves “a substantial question of law", with theleave of the High Court. S. 31 DO of the Industrial Disputes Act asamended permits an appeal from a final order of the High Courtmade in the exercise of its appellate or revisionary jurisdiction, inrelation to an order of a Labour Tribunal with the leave of the HighCourt or the Supreme Court.
In view of the aforementioned decision and the fact that theappellant has purported to appeal under S.9(a) of Act No. 19 of 1990this Court inquired from Mr. Sangakkara learned Counsel for theappellant, during the hearing before us, whether this appeal can bemaintained, if not whether it is possible to support it under S.31DD ofthe Industrial Disputes Act. Mr. Sangakkara was not prepared to givea clear answer but thought that the appellant had a problem. Hesubmitted that this Court can entertain the appeal in the exercise ofits “inherent jurisdiction".
It is correct that the appellant has a problem (which I think isinsurmountable) whether the appeal is attempted under S.9 of ActNo. 19 of 1990 or S.31DD of the Industrial Disputes Act because theorder appealed from is not a final order as required in both suchsections but only an interim order. The High Court merely overruledthe preliminary objection and this would not finally dispose of therights of parties “leaving nothing more to be done" Siriwardena v. AirCeylon Ltd.tS); Seeta Wijetunge v. Meeyanl6). In the instant case, theHigh Court has yet to decide the case on its merits and hence theorder is not final. As such the appellant has no right of appeal. ThisCourt has “no inherent jurisdiction" to entertain the appeal. Therespondents have not raised any preliminary objection to the appeal.However, such conduct cannot give jurisdiction to this Court,
What I have stated above is sufficient to dispose of this appeal.However, in view of the fact that we have heard Counsel on importantquestions relating to the interpretation of the Constitution which are
otherwise within our exclusive jurisdiction under A. 125 of theConstitution I would express my views on these questions beforemaking my order on the appeal.
I cannot accept the submission that the decision in SwastikaTextile Industries Ltd. case (Supra) is per incuriam. The ratio in Martinv. Wijewardena (Supra) cited by the appellant's Counsel in support ofhis argument is that a right of appeal is a statutory right and must beexpressly created and granted by Statute; and that A. 138 is only anenabling article which confers the jurisdiction to hear and determineappeals to the Court of Appeal. The right to avail of or takeadvantage of that jurisdiction is governed by the several statutoryprovisions in various legislative enactments. The question ofjurisdiction of the High Court of a Province in terms of A.154P (3) andthe relevant statutes was not in issue in that case. The decision inWadigamangawa v. Wimaiasuriya (Supra) deals with the rights of aperson who challenges the election of a Member of Parliament. It hasno bearing on the question of the jurisdiction of a Provincial HighCourt. It has been cited by Counsel in view of certain dicta bySamarakoon C.J. (who with two other Judges dissented from themajority judgment) that the Constitution prevails over ordinary law, inthe context of that case. As such the decision of the High Court that itwas bound by the ruling in the Swastika Industries case is correct.
The other submission is that the Judges of the High Courts of theProvince have not been properly appointed and hence have nocompetence to exercise jurisdiction in the case. This submission isbased on the theory that "The High Court of Sri Lanka” referred to inA.lll(1) of the Constitution is either a new Court or a substitutionfor the "High Court of the Republic of Sri Lanka" referred to in A. 105
(c); and that pending the enactment of legislation relating to thejurisdiction and powers of the “High Court of Sri Lanka” Judgescannot be appointed to that Court and consequently the Judges ofthe High Courts of the Provinces cannot be validly nominated underA.154(P) (2). It seems to me that the object of the amended A. 111(1) isto put an end to the character of the High Court as a ‘Court of firstinstance exercising criminal jurisdiction” (which was the descriptionof that Court prior to the amendment). In view of the amendment itmay now be invested with civil jurisdiction as well. As it is no longerdescribed as a “Court of first instance” it could, subject to theConstitution, be even invested with appellate, revisionary orsupervisory jurisdiction". (This interpretation finds support in theprovisions of A. 138 as amended by the 13th Amendment). If inenacting such amendment, the reference to the “Republic” has notbeen repeated, it may be an oversight.
As far as I am aware, there are no judges of “the High Court of SriLanka"; for they still receive their appointment as “Judges of theRepublic of Sri Lanka”; and they are in turn nominated as Judges ofthe High Courts of the Provinces. The original criminal jurisdictionpresently exercised by the High Court of the Provinces is thejurisdiction provided by the Judicature Act No. 2 of 1978. There is nointention to establish a new Court or to substitute a Court for the HighCourt referred to in A.105 (1) (c). The High Court referred to in thatArticle continues subject to the modification, in view of the amendedA.lll(1), that it has ceased to be a "Court of first instance exercisingcriminal jurisdiction". No legislation was enacted to confer any newjurisdiction on the High Court subsequent to the amendment ofA.111(1). However, the 13th Amendment included provisionempowering the High Courts of the Provinces to exercise appellate,revisionary and supervisory jurisdiction. The Provisions of S,2(2) and
of Act No. 19 of 1990 indicate that in other respects Parliamentitself intended the continued exercise by these Courts of the samepowers as were enjoyed by the High Court of the Republic ofSri Lanka under the Judicature Act.
In the circumstances, the Court referred to in Articles 105(1) (c),111(1) and 154P (2) is one and the same Court viz. the High Court ofthe Republic of Sri Lanka. It also appears that in the light of A. 1 ofthe Constitution, “the High Court of Sri Lanka" referred to in A, 111(1)must be deemed to be "the High Court of the Republic of Sri Lanka”.There is no justification either in law or common sense to take theview that the Judges of the High Courts of the Provinces have notbeen properly appointed.
For the foregoing reasons, I reject the appeal and affirm thejudgment of the High Court. It is a matter of regret that in view of theobjection taken on behalf of the appellant, consideration of relief
Sriyawathie v. Superintendent Hapugastenne Estateand Others (Kulatunga, J)
against her dismissal in 1989 has been inordinately delayed. In viewof this and in view of the provisions of S. 31D(7) of Act No. 32 of 1990the High Court of the Central Province is directed, to hear anddetermine the respondents’ application on the merits within 6 monthsof the receipt of the record herein. I make no order as to costs.
P. S. DE SILVA, C.J. -1 agree.AMERASINGHE, J. -1 agree.Appeal rejected.
SRIYAWATHIE v. SUPERINTENDENT HAPUGASTENNE STATE AND OTHERS