ALLES, J.—Bata Shoe Company oj Ceylon Lid. v. Siriscna
Present: Alles, J.
BATA SHOE COMPANY OF CEYLON LTD., Appellant, andH. G. SIRISENA, Respondent,
S.G. 29/69 L.T. 7/29/68—In the matter of an Appeal under Section 31 jD(2)of the Industrial Disputes Act
Labour Tribunal—Ex parto hearing—Defaulting party's absence due to mischance oraccident—Effect—Industrial Disputes Regulations, Regulation 28-
Whore, at an inquiry boforo a Labour Tribunal, a party was accidentallynbsont because he had misplaced the notice of the day fixed for tho hearing—
Held, that tho case should bo roruittod for n fresh inquiry and adjudication.
Appeal from an order of a Labour Tribunal.
L. Kadirgamar, for the employer-applicant.
S. S. Sahabandu, for the applicant-respondent.
Cur. adv. vitU.
September 17, 1970. Ali.es, J.—
Tho employer-appellant appeals from an order of tho President of theLabour Tribunal granting relief to the employee-respondent whoseservices wero discontinued by the appellant on 26th August 196S at thetermination of his probationary period. The respondent was appointedas a machine operator on a weekly salary of Rs. 22. According to theconditions of service ho was entitled to bo confirmed in his appointmentafter a lapse of six months only if his services were found to bo satisfactory.Tho appellant filed answer and stated that during tho period of probationtho respondent’s work was unsatisfactory and that therefore they werojustified in terminating his services.
At the inquiry, tho appellant was iiot present, although notice of thodato of inquiry had been served on tho firm and thc3' wero unawaro oftho president’s order until it was served on them. In tho potition of
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appeal the appellant states that notice of the clay fixed for tlie hearingof the respondent’s application had been accidentally misplaced in theoffice and, for that reason, the officer of the appellant firm in chargo wasnnv.arc of tho date of tho hearing and was unable to make arrangementsfor the representation of the appellant at t he inquiry ”.
Counsel for tlie appellant draws attention to Regulation 2S of theRegulations framed under Section 39 of tho Act which provides that thePresident is only entitled to proceed with an inquiry ex parte if he issatisfied that no sufficient cause for a party’s absence has been shown bytho party in default. It does not appear from tho order of tho learnedPresident that he has given his mind to tho provisions of this Regulationbefore he decided to proceed with this inquiry c.v parte.
In Danny v: William1 the defaulting party stated in his petition ofappeal the reasons why ho could not bo present at the inquiry andsupported the facts stated therein, with a medical certificate and anaffidavit, but in the circumstances of this case no supporting evidence ofthe facts stated in the petition of appeal had been furnished. At thehearing of tho appeal however, learned Counsel for the respondent wasnot able to dispute the facts stated in the petition of appeal. I wouldrespectfully agree with the observations of Jenkins L.J. in Grimshcno v.Dunbar- cited by Samcrawickrame J. in Danny v. William and hold thattho appellant has been deprived of presenting its version of the factsbefore the Tribunal to enable a just and equitablo order to be made.
I therefore set aside the order of the learned President and remit theease for inquiry and adjudication on tho application of the employeerespondent. The respondent,'who was in no way responsible for thefailure of the appellant to appear at the inquiry, will be entitled to hiscosts of the date of inquiry which I fix at Rs. 50. There will be no costsof appeal.
Case remitted for fresh inquiry.
BATA SHOE COMPANY OF CEYLON LTD., Appellant, and H. G. SIRISENA, Respondent