Board of Truster of Tamil University Movement V. F. N. de Silva and others

035-SLLR-SLLR-1982-1-Board-of-Truster-of-Tamil-University-Movement-V.-F.-N.-de-Silva-and-others.pdf


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Board of Trustees of Tamil University Movement v. de Silva
361
SUPREME COURT
Board of Trustees of Tamil University Movement
V.
N. de Silva and others
S.C. Appeal No, 79/80— CA Appeals1556179 — L. T. t Case No. 13/6716 – 25/77
Power of Labour Tribunal to change caption of Plaint – Industrial Disputes Act..
The Appellant is a charitable organization incorporated under Section 114of the Trust Ordinance. The Respondent is a Trade Union of which 10ex employees of Appellant are members. The Appellant terminated theservices of the 10 employees who applied ,to the Labour Tribunal forreinstatement and back wages.
Upon objections made by the Respondent the Caption ‘Tamil UniversityMovement’ stating that it was a non-existent person the L.T. Presidentallowed the Petitioner to change the caption from Tamil UniversityMovement to “Board of Trustees, Tamil University Movement" on theground that no prejudice was caused to the other Party.
Respondent appealed to the Court of Appeal to quash the order by Writof Certiorari. The Court of Appeal confirmed the decision of the LabourTribunal
Respondent appealed to the S.C.
Held. Our Labour Tribunals in the exercise of their duty to make justand cquitabic orders have the power to amend captions in applicationswhere the Respondent is sufficiently identified but wrongly named.
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Sri Lanka Law Reports[1982] 1 S.L.R
APPEAL from judgment of the Court of Appeal
Argued on:
Counsel:
Before:Wanasundera J., Wimalaratne J., Ratwatte J.,Victor Perera J., & Colin Thome J.
K. Kanag-Iswaran for the Petitioner-Appellant.S. Mahenthiran for the.2nd Respondent-Respondent.
6th April, 1982.
Cur. adv. vult.
Decided on:
6th May 1982
Wimalaratne j.
The Tamil University Movement is said to be a charitable organisationwhich conducts, inter alia, an. /Agricultural and Animal. HusbandryCentre,, and; Farm at lJppuveli in Jnncomalee, where it employspersons in and around theifarm as-labourers etc. The Trustees ofthe Movement, seven in niimber, applied to the Minister of Justicefor. their incorporation under section 114 of the . Trqst£ Ordinance(Cap. 87), and by order published on 16.6.66 theyiwere incorporated.One of the clauses in the order of incorporation is that the' Boardof Trustees “shall be able and competent in law to sue and to besued, to answer and be answered, to defend and be defended inany Court or elsewhere jn .all causes and actions in respect of thesaid Tamil University Movement.”''•
The services of ten employees were terminated in or about February1977. They were all members of the Ceylon General & IndustrialWorkers Union. The Union took up the cause of these employeesand on 1.8.77 made ten applications under section 31 B (1) of theIndustrial Disputes Act (Cap. 131) to the Labour Tribunal of Colomboseeking redress by way of reinstatement and back wages. Therespondent to these applications was named in the caption as “TamilUniversity Movement, 16 Fountain Lane, Colombo 10”. The “SecretaryTamil University Movement” filed answers on 4.10.77 and pleaded,inter alia, that “the Applications could not be maintained againstthe T.U.M. and have been filed against the wrong person” Whenthe applications were taken up for inquiry on 7.2.78 the objectionto maintainability was clarified; the Tamil University Movement wasneither a natural nor an artificial person and could not, therefore,
StHoard of Trustees of Tamil University Mmxnu’nm dc.SilraiWimularatne, J.) 363
be made a party. The Union thereupon sought permission to amendthe applications by substituting “The Board of Trustees of the TamilUniversity Movement” as respondent. Objection was taken to thisas well, because the Tribunal had no powers to amend, j But theTribunal permitted the Union to amend the applications, whichamended applications were served -on the respondent on 5.6.78. Therespondent filed written submissions setting out 'its'objections to theamended applications, but the President made order on 4.4.79 acceptingthe amendment on the ground that no prejudice can be caused inallowing the amendment.
.*,•.• ■;…… .si
The respondent invoked the jurisdiction.of the Court of Appealand sought by way of certiorari to quash, the orders of the Tribunalallowing the amendment. The main arguments before that Co.urtseem to be (a) that the actions were a nullity because they had .beenfiled against a non existent person, and (bjjhat a Labour Tribunalhas no jurisdiction to order amendmcnt'bf pleadings. The Court ofAppeal dismissed the applications for the reason that although theTamil University Movement per se is not a legal person, still nobodywould be misled as to the identity of the party from whom relief isbeing sought. The error in naming the Tamil University Movementas the respondent is one of name and description and not of identity.
The judgment of the Court of Appeal is comprehensive, andembraces the powers of a civil court to substitute or add the rightparty where the wrong party has been named. It seems .to, usunnecessary to consider the powers of civil couns as regards amendmentsexcept to refer to the ease of Velupitlai Vs. The Chairman, UrbanDistrict Council (1936) 39 NLR 4M. In that case the party namedas defendant to a civil action for damages was the “Chairman, UrbanDistrict Council.” bh objection taken that the action against .theChairman was not properly instituted, the District Judge dismissedthe action. The Supreme,Court allowed the plaintiff, in appeal, toamend, the caption by. substituting-the iU.D C. for the Chairman,despite the fact that,as a result of the amendment the defendantwas prejudiced in that it was deprived of the defence of prescription.In the course of his judgment Abrahams C.J. had this'to sav –
“1 think that if we do not allow the amendment in this: casewe should be doing a very grave injustice-:to the plaintiff. Itwould appear as if the shortcoming of his legal adviser, the
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[1982/ / S L R
peculiarities of law and procedure, and the congestion in theCourts have all combined to deprive him of his cause of actionand 1 for one refuse to he a party to such an outrage uponjustice. This is a Court of Justice, it is not an Academy ofLaw.” at p.465.
Learned Counsel for the respondent-appellant contended thatVelupillai's case (above) has been wrongly decided in that AbrahamsCJ appears to have followed the case of Lord Bolinbroke Vs.Townsend (19 Q.B.D. 394) where the defendant named was Townsend,the clerk of the local Board of Health (which was a body corporate).In permitting the Board to be substituted for Townsend, the Courtwas substituting an artificial person for a natural person. But inVelupillai's case an artificial person was substituted for a non-existentbody, which is not permissible. Despite this. contention of learnedCounsel, it would appear that Abrahams CJ was quite aware of whathe was doing and that the two cases were not identical because hesaid that that case “bears a close resemblence to the case of LordBolinbroke Vs. Townsend" at p. 465.
Though it has been contended that an “employer” within themeaning of section 48 of the Industrial Disputes Act has to be aperson or a body of persons, and that such person or persons haveto be cither natural or artificial, it should be noted that the legislaturehas recognised certain “non persons" as capable of being employers.Recognition has, for example, been given a “firm” in section 48itself, and by subsequent legislation to Superintendents and Managersof Estates who could be sued in that designation alone without theiractual names being given. Accordingly no hard line should be adoptedwhen premission is sought to substitute a “person” for a “ nonperson” who has mistakenly been made respondent in an applicationbefore a Labour Tribunal.
No provision for amendment of captions has been included in theIndustrial Disputes Regulations made by the Minister, by virtue ofthe powers vested in him under section 39 (1) of the Act, to makeregulations in respect of the procedure to be observed by labourtribunals. Section 31C of the Act provides that it shall be the dutyof the tribunal to make all such inquiries into applications madeunder section 31B, and to hear all such evidence as the tirbunal mayconsider necessary, and thereafter make such order as may appearto the tribuanl to be just and equitable. A labour tribunal will not.
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Hoard of Trustees of Tamil University Movement v. de Silva i Wimalaratne. J.)365
in my view, be able to discharge its duty of making a just andequitable order if rt is to be hamstrung by technicalities in thecorrection of mistakes in captions, when the party against whomredress is claimed can easily he identified. It seems to me that thesame liberal approach as was adopted-in Velupillai's Case may safelybe followed in cases before Labour Tribunals as well. Such anapproach has in recent years been adopted in problems relating tothe corrections of mistakes in describing the employer before aLabour Tribunal. In the Manager, Ury Group, Passara Ks. The
W.C. (1968) 71 NLR 47. Samarawiekrcma .1. thought that thereshould not be the same insistence on the proper naming of therespondent before a Labour Tribunal as there would be, for example,in the case of an application to a Court of Law. If there is such adesignation or description from which the identity of the employercan be known, it should be sufficient. On the face of it the applicationshould be against a natural or legal person for the purpose ofenforcement. But where it is not, then a suitable amendment of thecaption could be effected before an order is made. In the case ofThe Suptci: Deesidc Estate, Maskeliya Vs. llankai Thozhilar Kazahakan(1968) 70 NLR 279 Siva Supramaniam .1. allowed the appeal of theemployer on the sole ground that any order made in favour of theemployee could not be enforced against the Suptd: of the estate whowas named as the employer. The employee was unrepresented atthe appeal and no application appears to have been made even atthat stage to amend the caption bv naming a person as employeragainst whom an order could be enforced. In the subsequent UryGroup Case (above) Samarawickreme J. did not disagree with theview taken in the Deeside Estate Case that the application should bemade against a legal or natural person. The amendment of thecaption was only for the purpose of making the order enforceableagainst the person who was intended to be sued. In Suptd: NakiyadenivaGroup Kv. B.A. Cornells Hamy (1968) 71 NLR 142 (decided on31.8.68) Wijayatilakc .1. did not adopt the course taken bySamarawickrema J. when the latter judgment was brought to hisnotice for the reason that although it appeared to be practical andexpeditious, he did not think that when the tribunal had made an’ unenforceable order an appellate Court could ex mero motu makeany such amendment to take effect retroactively. That case is easilydistinguishable because the application to amend the caption in thepresent case was made to the Tribunal itself after the respondenthad, in the answer, taken the plea that' the wrong person had beennamed as respondent.
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It is significant that soon after the decisions in the Deeside EstateCase■ and. the Nakiyadeniya Group Case, the legislature introducedan amendment by Act No. 39 of 1968 (W.E.F.11.10.66) making itsufficient to designate the employer as “the; superintendent” or “theManager” of the estate where the employer is known as thesuperintendent or the manager. In the .instant case the document ofincorporation itself by enabling the trustees to defend actions inrespect of the Tamil University Movement, has impliedly recognisedthe possibility of the Movement itself being made a party.
An argument was also advanced that after Sri Lanka adopted aRepublican constitution, institutions created for the settlement■<andadjudication of industrial disputes, have been placed on a par withinstitutions, cre-ated. for. the administration of justice; and as-actionsinstituted in Courts of law against non existent persons are null1 andvoid so also should,:bq,.applications instituted before labour tribunals.Sjtich changes in,.our ;Constitution have, not, however; deterred ourcourts .frosn-i recognising! the*.main duty, of labour tribunals, which isStill that ;pf making just and ; equitable orders'. Our Courts-haveaccordingly continued the exercise-of amending captions in applicationswhere the..respondent was sufficiently identified, but wrongly namednotwithstanding the absence of statutory provisions or regulationsenabling,such amendments – vide, for example, the jdugment ofKajaratnam J. In Karunadasa Vs, Sri Lanka State PlantationsCorporation (S.C. 62/75 LvT. -1/8129/73; S.C. Minutes of 9.4.76). Itseems difficult to understand how Labour Tribunals, which are also“institutions for the administration of justice which protect, vindicateand enforce the rights of the people" according to Article 105(1) ofour constitution can be expected .to make just and equitable ordersif their powers of amendment, where necessary, are not recognised.
For these reasons 1 would affirm the judgment of the Court ofAppeal, and dismiss this appeal with costs payable to the 2ndrespondent, and direct the Tribunal to conclude these cases as earlyas possible.
Before I conclude this judgment it is necessary to refer to theunnecessary delay entailed in the hearing and disposal of. these cases.The workmen complained that their .services were unlawfully terminatedin February 1977 more than five-years (ago. It-is a matter for regretthat the inquiry into their gricvences-has;inot even as yet commenced.
SCBoard of Trustees of Tamil University Movementv. de Silva (WimalaratnerJ367
The tribunal made its order substituting the Board of Trustees on4.4.79, a little over three years from today. The employer’s applicationto quash the order by way of certiorari was filed in the Court ofAppeal on 12.7.79. The only documents that the employer wasrequired to file in terms of the Supreme Court Rules were co'piesof the proceedings, which consisted of the pleadings before and theorder of the tribunal, and the documents material to the case, whichwere the gazette publication of incorporation and the applicationcontaining the amended caption. They were all filed in the'Court ofAppeal along with the petition and affidavit. The President of theLabour Tribunal was named as the 1st respondent only .because theorder sought to be quashed was one made by him, but-there wasno necessity to have required him to cause to be produced the recordat that stage. Indeed, the Court of Appeal quite correctly did notcall for the record nor did it order stay of proceedings. jjjider thesecircumstances the Tribunal ought to have carried on with the proceedings.If that course had been taken this inquiry may have reached finalityby now.
WANASUNDERA J: — I agree.
RATWATTE J: — I agree.
VICTOR PERERA J: — I agree.
COLIN THOME J: — I agree.
Appeal dismissed
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