CEYLON PRESS WORKERS’ UNION (on behalf of W. Peter Perera), Applicant, and THE C

038-NLR-NLR-V-75-CEYLON-PRESS-WORKERS’-UNION-on-behalf-of-W.-Peter-Perera-Applicant-and-THE-C.pdf


Ceylon Press Workers' Union v. Colombo Apothecaries Co. Ltd.
223
[In the Coubt 07 Appeal of Ceylon]
1972 Present: Fernando, P., Sirlmane, J., Samerawickrame, J,and Siva Supramaniam, J.CEYLON PRESS WORKERS’ UNION (on behalf of W. Peter Perera"),Applicant, and THE COLOMBO APOTHECARIES COMPANY LTD.,RespondentApplication No. 11 of 1972S. C. 111/1970—.L. T. 14/429/69Court of Appeal Act, No. 44 of 1971—Section 8 (1) (d)—Scope of expression “ civilcause or matter ”—Labour Tribunal—Order made by it against employer-judgment of Supreme Court reversing the order—Jurisdiction of Court of Appealto grant leave to appeal therefrom—Industrial Disputes Act (Cap. 131), ss. 31A,31B, 31D2—Courts Ordinance, ss. 2, 19, 36.
Section 8 (1) {d) of the Court of Appeal Act, No.’ 44 of 1971, reads as follows:—
“ An appeal shall lie to the Appellate Court, at the instance ofan aggrieved person, with the leave of the Appellate Court, from any judgmentof the Supreme Court given in the exercise of its appellate jurisdiction inany civil cause or matter in which is involved, in the opinion of the AppellateCourt, a question of general or public importance. ”
Held, that where the Supreme Court allows the appeal of an employer froman order made by a labour tribunal in an industrial dispute, the Court of Appealhas jurisdiction under section 8 (1) (d) of the Court of Appeal Act to pUow leaveto appeal from the judgment of the Supreme Court. In such a case it cannotbe contended that the judgment of the Supreme Court sought to be appealedfrom was not one given in the exercise of “ its appellate jurisdiction m anycivil cause or matter ”.
" The word * cause ’, while it certainly includes an action, is wide enough toembrace other forms of proceedings initiated to obtain relief from wrongs orgrievances; but whether the word ‘ cause ’ is or is not wider in meaning thanthe word ' action the word ' matter ’ is indeed of very wide import. ”
224 FERNANDO, P.—Ceylon Press Workers' Union v. Colombo Apothecaries Co. Ltd.
APPLICATION for leave to appeal from a judgment of theSupreme Court.
S. Sharvananda, -with R. Ravindra, for the applicant.
H. W. Jaytwardene,, Q.C., with Ben Eliyathamby and Miss I.Marasinghe, for the respondent.
Tennelcoon, Q.C., Attorney-General, with H. A. 0. de Silva, SeniorCrown Counsel, as Amicus Curiae.
Cur. adv. vuU.
April 24, 1972. Febnando, P.—
This is an application for leave to appeal from a judgment of theSupreme Court delivered on the 26th of January 1972 allowing an appealby an employer and dismissing with costB an application made to aLabour Tribunal by a trade union on behalf of a dismissed workmanclaiming relief by way of re-instatement and payment of back wages.
Section 8 (1) (d) of the Court of Appeal Act, No. 44 of 1971, enablesthis Court to grant leave to appeal from a judgment of the SupremeCourt given in the exercise of its appellate jurisdiction in any civilcause or matter in which is involved, in the opinion of this Court, aquestion of general or public importance.
A preliminary objection was taken before us by the respondent thatthe judgment of the Supreme Court sought to be appealed from wasnot one given in the exercise of its “appellate jurisdiction in any civilcause or matter.”' We are thankful to learned counsel for the applicantand the respondent as well as to the learned Attorney-General who wasgood enough to assist us at our instance on the preliminary objectionfor their full and helpful arguments addressed to us.
Act No. 62 of 1957 which amended the Industrial Disputes Act(Cap. 131) made provision (1) for the establishment of labour tribunals(Section 31A), (2) for applications to be made to any such labour tribunalby a workman (Section 31B), and (3) for appeals to the Supreme Courton questions of law by any workman or employer who may be dissatisfiedwith orders of a labour tribunal (Section 31D (2)).
Mr. Jayewardene, for the respondent, has argued that the expression"appellate jurisdiction” of.the Supreme Court in the aforesaid Section8(1) (d) has no other meaning than the expression “appellate jurisdiction”in Sections 19 and 36 of the Courts Ordinance (Cap. 6). Section 19 ofthe Courts Ordinance confers on the Supreme Court an appellatejurisdiction for the correction of all errors “ as hereinafter specified ”which may be committed by any original Court, and sole and exclusive
FERNANDO, P.—Ceylon Press Workers' Union v. Colombo Apothecaries Co. Ltd. 225
cognizance by way of appeal and revision of all causes, suits, actions,prosecutions, matters and things of which such original Court may havetaken cognizance.
The expressions “ court ’ ’ and ‘ ‘ original court ” are defined in Section 2 ofthe Courts Ordinance. It will be sufficient to note that “ court ” denotesa judge or body of Judges empowered by law to act judicially.
An authoritative decision, United Engineering Worlcers' Union v.Devanayagam *, having already placed labour tribunals outside thecategory of bodies exercising judicial power, or, in other words, to uselanguage more germane to the argument we are here considering, outsidethe definition of “court” in the Courts Ordinance, Mr. Jayewardenesubmitted that the legislature, when it enacted Section 8 (1) (d), had incontemplation nothing other than what he termed the traditional (orCourts Ordinance) appellate jurisdiction. He invoked reference tocertain decisions of the Supreme Court, Soertsz v. The Colombo MunicipalCouncila, R. M. A. R. A. R. R. M. v. Commissioner of Income Tax3 andSettlement Officer v. Vander Poortenall of which denied any right ofappeal to the Privy Council from judgments of the Supreme Court.Cratiaen A.C.J. in Attomey-Oeneral v. Ramaswamy Iyanger 6 attempted-to explain the first and second of these decisions on the basis of theprinciple that, when a Court exercises jurisdiction which is merelyconsultative in character or makes a declaration in the nature of an awardin proceedings which from beginning to end were ostensibly and actuallyarbitration proceedings, its decision cannot be equated to a judgmentpronounced in a “civil suit or action”.
Support for the respondent’s objection was also sought from a decisionof the Privy Council in Rangoon Botatung Co. Ltd. v. The Collector,Rangoon 8 which held that no appeal lay to Her Majesty in Council froma decision of the Chief Court of Lower Burma on a reference to thatCourt by the Collector of Rangoon in proceedings under the LandAcquisition Act after an award made by him as to the value of the landacquired. The Privy Council did not there accept the argument orsuggestion that, when once the claimant was admitted to the High Court,he has all the rights of an ordinary suitor including the right to carry anaward in an arbitration as to the value of the land taken for publicpurposes up to the Board as if it were a decree of the High Court made inthe course of its ordinary jurisdiction. This decision has been explainedin later cases, and we content ourselves with quoting the explanationof Lord Simonds in Adaikappa Chettiar v. Chandrasekhara Thevar 7 :—
“ That case, however, has been explained in later decisions of the
Board as depending on the fact that the proceedings were from
beginning to end ostensibly and actually arbitration proceedings
1 (1967) 69 N. L. R. 289.*(1942) 43 N. L- B 436.
1 (1930) 32 N. L. R. 62.•(1954) 55 N. L. R 574.
* (1935) 37 N. L. R. 447.*40 Ind. Dec. (N. S.) Cal21-
' (1948) A. I. B (P.O)atv- U.
228 FERNANDO, P.—Ceylon Press Workers' Union v. Colombo Apothecaries Co.Lid.
The true rule is that where a legal right is in dispute and the ordinaryCourts of the Country are seized of such dispute the Courts are governedby the ordinary rules of procedure applicable thereto and an appeallies, if authorised by such rules, notwithstanding that the legal rightclaimed arises under a special Statute which does not in terms confera right of appeal.”
The cases referred to above as having been relied on by Mr. Jayewardeneshowed a tendency to place a narrow meaning on the words “civil suitsor actions ” appearing in the Appeals (Privy Council) Ordinance (Cap. 100).This tendency was more marked in the later case of Silverline Bus Co. Ltd.v. Kandy Omnibus Co. Ltd.1, where a Divisional Bench of five judgesof the Supreme Court by a majority decision ruled that the words “ civilsuit or action ” in the Appeals (Privy Council) Ordinance should beconstrued in their ordinary sense of a proceeding in which one partysues or claims something from another in regular civil proceedings. ThePrivy Council disapproved of this narrow meaning in Tennakoon v.Duraisamy 2. After making reference to Section 52 of the Charter of 1833where the words “ civil suit or action ” first appeared, the Privy Councilobserved that, “ though it would be natural to exclude from the range ofpermissible appeals cases of insufficient importance, it would be difficultto imagine an intention to exclude cases differentiated by reference tothe form of the proceedings, regardless of the gravity of the resultoccasioned by them ”. The learned Judges went on to observe that the-words “ civil suits or actions ” must be given the meaning which theybore in the Charter of 1833. Following a decision in a case from the-Straits Settlements where a relevant Colonial Charter of 1855 permittedleave to appeal in any “ civil cause ”, they saw no good ground for drawingany distinction between the words, “ civil cause ” and “ civil actionA comparatively recent decision of the Privy Council, Maliban BiscuitManufactories Ltd. v. Submmaniam3, clearly overruled the SilverlineBus Co. ease,' and it would be difficult to resist the inference thatthe line of cases relied on by Basnayake C.J. in his judgment in theSilverline Bus Co. case, which indeed was the line of cases mainlyrelied on by Mr. Jayewardene before us, has now been impliedly overruled.In any event, that line of cases will, if and when necessary, have to bereviowed.
Tennakoon v. Duraisamy4 was a case that dealt with an application by a.person for registration as a citizen under the Indian and PakistaniCitizenship Act. The Deputy Commissioner who inquired into that,application was in no sense a Court. Nevertheless, the Privy Councildetermined that at the stage the dispute came before the Supreme Courtby way of an appeal it had become “ a civil suit or action in the SupremeCourt ”. We do not, however, consider it necessary to pronouncewhether there was in the case before us “ a civil suit or action in theSupreme Court ” as the requirement of Section 8 (1) (d) of the Court of
1 (,1966) 68 N. L. R. 193.*(1971) 74 N. L. R. 343.
• (1968) 69 N. L. R. 481■*(1968) 69 N. L- R. 481.
FERNANDO, P.—Ceylon Press Workers' Union v. Colombo Apothecaries Co.Ltd. 227
Appeal Act ia that the judgment of the Supreme Court be one given in theexercise of its appellate jurisdiction “ in any civil cause or matter ”,We think the word “ cause ”, while it certainly includes an action, iswide enough to embrace other forms of proceedings initiated to obtainrelief from wrongs or grievances ; but whether the word “ cause ” is oria not wider in meaning than the word “ action ”, the word “ matter ”is indeed of very wide import.
Mr. Jayewardene attempted to distinguish the upholding of the rightof appeal in Tennakoon v. Duraisamy1 by suggesting that there the civilright of a citizen to citizenship was involved. He submitted that theSupreme Court ha3 been granted by the Industrial Disputes Act a specialpower to decide questions of law, and that when the Court is exercisingthat special power it is not exercising its appellate jurisdiction under theCourts Ordinance but is deciding a special category appeal, as he termedit, and not one arising in a civil cause or matter. In other words, hesought to place a technical meaning on the words “ appellate jurisdiction ”appearing in Section 8 (1) (d) of Act No. 44 of 1971. We do not considerthat such a narrow and technical meaning is justified. The expression“ appellate ” in Section 8 (1) (d) above referred to denotes, in our opinion,appellate as opposed to original ; and the expression “ civil ” is also thereused, as submitted by applicant’s counsel, in contradistinction mainly to“ criminal ”. It is unnecessary, however, for the purpose of thisapplication for us to consider the question whether every proceedingbefore a Court that cannot be said to be “ criminal ” necessarily fallswithin the category of “ civil ”. That question too can be decided if andwhen it should arise.
It is also unnecessary, in our opinion, to go on to consider whether aworkman is or is not claiming a legal right when he makes an applicationfor relief to a labour tribunal in terms of Section 31B of the IndustrialDisputes Act. We would in this connection like to refer to the observationof Gratiaen J. made at the stage of leave to appeal in Tennakoon v.Duraisamy 2 that the proceedings before the Deputy Commissioner didnot at that stage constitute “ a civil suit or action ” but that the partiesto the appeal were parties to “ a civil suit or action in the Supreme Court ”.We respectfully agree with this observation, and, had it been necessary,we would have been ready to apply that reasoning to the situation thatwas present at the stage of appeal to the Supreme Court from the judgmentof the labour tribunal. That is to say, even if the application to thelabour tribunal did not qualify as a civil cause or matter, when the appealwas preferred what was invoked was an appellate jurisdiction of theSupreme Court “ in a civil cause or matter When a workman hasbeen successful in obtaining an award he has acquired a legal right to thefruits of that award, a right which is indeed under the statute capable ofenforcement. In other words, the labour tribunal has at the time ofmaking its award created a right. Therefore, when the parties came upbefore the Supreme Court, by way of appeal, the judgment of the Supreme
' {1955) 57 N. L. R. at p. 439.» {1955) 57 N. L. R. at p. 4-39.
228
Katiramanthamby v. Lcbbethamby Hadjiar
Court thereafter was undoubtedly given both (o) in the exercise of itsappellate jurisdiction and (6) in a civil cause or matter. The relevanttime for our purposes is the time of delivery of the judgment of theSupreme Court. At that time it was a judgment given in a civil cause ormatter. Mr. Jayewardene questioned what would be the position if thelabour tribunal had held against the applicant-workman, that is to say,if Ibe labour tribunal had not created a right. The answer to thatquestion would appear to be that in that event the appeal to the SupremeCourt by the workman would be on the basis that he is aggrieved by adenial of the right to receive an award.
An argument was addressed to us by Mr. Jayewardene as to whetherthe labour tribunal was not exercising judicial power. We do not needto examine this argument as, in our opinion, whatever be the nature ofthe power the labour tribunal was exercising, the Supreme Court in hearingand deciding the appeal was undoubtedly doing bo in the exercise of itsjudicial power.
While we therefore overrule the objection, we have to state that theapplicant has failed to satisfy us that the question or questions involvedin the appeal are of general or public importance. We would thereforedismiss the application, but without costs.
Application dismissed.