007-SLLR-SLLR-2003-1-BANK-OF-CEYLON-v.-THE-CEYLON-BANK-EMPLOYEES-UNION-ON-BEHALF-OF-KA.pdf
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Stephen Perera and others v. Minister of Lands, Irrigation and
Mahaweli Development and another (Fernando. J.)
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BANK OF CEYLON
v.THE CEYLON BANK EMPLOYEES UNION(ON BEHALF OF KARUNATILAKA)
SUPREME COURTGUNASEKERA, J.
ISMAIL, J,, ANDYAPA, J.
SC APPEAL No. 30/2002HC (LT) HCA 199/97LT CASE No. 23/K/240012TH SEPTEMBER, 2002
Industrial Dispute – Notice of special leave to appeal to the Supreme Court -Rule 8(2)(a) of the Supreme Court Rules – Failure to file a caveat opposingspecial leave to appeal – Whether such failure would disentitle respondent’sright to be heard at hearing of appeal.
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[2003] 1 Sri L.R
The High Court dismissed the appeal of the appellant (“the employer”) againstthe order of the Labour Tribunal which granted re-instatement and back wagesto Karunathilake ("the workman”) represented by the respondent (“the Union”).The employer sought special leave to appeal to the Supreme Court from thedecision of the High Court.
The Registrar of the Supreme Court failed to send the Union, .notice of theapplication for leave to appeal within five days after it was lodged calling uponthe Union to file a caveat if it intended to oppose special leave as required byRule 8(2)(a) of the Supreme Court Rules, but gave the said notice after aboutforty five days from the lodging of the application. As the workman hadchanged his address the Union was unable to trace him with the result specialleave to appeal was granted ex-parte. However, when the Union learnt that theappeal had been fixed for hearing, the Union retained counsel to appear forthe Union. At the hearing the Senior State Counsel for the employer took upan objection that the Union was not entitled to be heard as it had failed to filea caveat opposing the grant of special leave.
Held:
In terms of Rule 8 the failure to file a caveat would disentitle the Union fromopposing special leave to appeal. However, it does not preclude the Unionfrom being heard at the hearing of the appeal.
APPEAL from the judgment of the High Court (Preliminary Objection),
S. Rajaratnam, Senior State Counsel for appellant.
Shirley Fernando, PC with Ruwan D. V. Dias and Palith Perera for respondent.
Cur. adv. vult.
December 13, 2002
GUNASEKERA, J.
The Applicant Respondent Union made an application to theLabour Tribunal, Kurunegala on behalf of its member R.A.Karunathilaka on 10.10.1989 alleging that the services of its mem-ber had been unlawfully terminated by the Respondent Appellanton 6.9.1983 and by way of relief prayed for reinstatement with backwages. The Respondent Appellant by its answer took up the posi-
Bank of Ceylon v. The Ceylon Bank Employees Union
SC(on behalf of Karunathilaka) (Gunasekera. J.)
tion that the worker’s services were terminated for justifiable rea-sons in that he had committed various fraudulent acts set out there-in and prayed that the application be dismissed. After a prolongedinquiry the learned President by his Order dated 30.9.1997 heldthat the services of the workman had been terminated unjustifiablyand directed that the workman be reinstated with back wages in asum of Rs. 2,64,135.60. An appeal was filed against the said Orderby the Respondent Appellant on 26.11.1997 and the said appealwas dismissed on 28.9.1998 for non prosecution. Thereafter on13.2.1999 an affidavit was filed on behalf of the RespondentAppellant praying for the restoration of the appeal for reasons stat-ed and after considering submissions made on behalf of both par-ties the appeal was restored to the Roll of Appeals. The appeal wastaken up for hearing on 6.2.2002 and after a consideration of thesubmissions made by Order dated 13.12.2001 the learned Judgeof the High Court upheld the Order made by the learned Presidentof the Labour Tribunal and directed that the workman be reinstatedwith effect from 1.2.2002.
An application for special leave to appeal to this Court fromthe Order dismissing the appeal dated 13.12:2001 was made on
and notices to be served on the Applicant Respondentwere tendered only on 13.3.2002 which notices were posted underregistered cover on 15.3.2002 contrary to the provisions of Rule 8of the Supreme Court Rules 1990 which required the notices to bedespatched within 5 working days after the application has beenlodged. The notices specified that the application for the granting ofspecial leave would be considered by Court on 28.5.2002 andspecified that the Applicant Respondent should file a caveat within14 days of the receipt of such notice if he was intending to opposethe grant of special leave as provided for in Rule 8(2)(a) of the saidRules.
On 28.5.2002 the Applicant Respondent was absent andunrepresented having failed to file a caveat expressing its intentionto oppose the grant of special leave. The Court after consideringthe submissions made by learned counsel for the RespondentAppellant made an ex-parte Order granting special leave to appealon the following question “Did the High Court err in law in affirmingthe Order for reinstatement made by the Labour Tribunal consider-
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ing the findings made by the High Court that the employee wasguilty of several instances of negligence and dereliction of duty, andfixed the date of hearing the appeal as 25.7.2002. On that day toothe Applicant Respondent was absent and unrepresented and thehearing of the appeal was refixed for 12.9.2002 and the Courtdirected the Registrar to issue notice on the Applicant Respondentthat the hearing of the appeal was refixed for 12.9.2002.
It appears from the docket that on 10.9.2002 an attorney-at-law had filed a proxy of the Applicant Respondent together with thewritten submissions on its behalf.
When this appeal was taken up for hearing on 12.9.2002learned Senior State Counsel who appeared for the RespondentAppellant objected to the Applicant Respondent being representedat the hearing and contended that the Applicant Respondent wasnot entitled to be heard on account of the fact that the ApplicantRespondent had not filed a caveat opposing the grant of specialleave.
In the written submissions filed on behalf of the ApplicantRespondent learned President’s Counsel has submitted thatalthough the application for the grant of special leave had been filedon 24.1.2002 that contrary to Rule 8 which requires that notices onthe Respondent has to be despatched within 5 working days of thelodging of the application, in the instant case contrary to the saidRule that notice has been despatched only on 15.3.2002 nearly 45days after the lodging of the application. It was his contention thatboth Rule 8 and the prescribed form in schedule 1 to the Rulesrequires the Respondent to file a caveat only if he intends tooppose the grant of special leave.
It was submitted by learned President’s Counsel that thenotice that had been despatched on 15.3.2002 had been receivedby the Respondent only 19.3.2002 as evidenced by Document ‘A’filed with the written submissions. On the same day the Secretaryof the Respondent’s Union had written to the workman to meet himand the office copy of the said letter had been produced marked‘B’.The workman had not contacted the Secretary as he had notreceived the letter. Upon inquiries made the Secretary had learntthat the workman had changed his address. Thereafter the
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Bank of Ceylon v. The Ceylon Bank Employees Union
(on behalf of Karunathilaka) (Gunasekera. J.)
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Respondent had received a copy of the written submissions filed onbehalf of the Appellant and a notice from the Registrar on 1.8.2002that this appeal had been listed for hearing on 12.9.2002 as evi-denced by document ‘C’. Thereupon the Respondent’s Union hadretained Counsel to represent the Respondent at the hearing of thisappeal. It was contended by learned President’s Counsel that theSupreme Court Rules 1990 do not make any provision as to theconsequences that would arise upon the failure of the Respondentsto file a caveat provided for in Rule 8(2) unlike the provision in Rule30(1) which provides for the consequences upon the failure to filewritten submissions which states that ‘no party to an appeal shallbe entitled to be heard unless he has previously lodged 5 copies ofhis written submissions’ (hereinafter referred to as “submissions”)complying with the provisions of this Rule.
I have carefully considered the submissions made and exam-ined the Rules and I find that the purpose of giving notice of anapplication for the grant of special leave to a Respondent is toenable him to express his intention to oppose the grant of specialleave to appeal and in my view, the failure of the Respondent to filea caveat is that he would be precluded from opposing the grant ofspecial leave when the application is considered for that purpose. Isee no basis for the objection taken as the failure to file a caveatopposing the grant of special leave does not preclude theRespondent from being heard at the hearing of the appeal. For thereasons stated I overrule the objections taken by the Appellant andpermit counsel for the Respondent to represent the Respondent atthe hearing of this appeal.
ISMAIL, J.-I agree.
YAPA, J.-I agree.
Preliminary objection overruled.