COCONUT RESEARCH BOARD v. FERNANDO

004-SLLR-SLLR-1994-V1-COCONUT-RESEARCH-BOARD-v.-FERNANDO.pdf


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Coconut Research Board v. Fernando
219
COCONUT RESEARCH BOARD
v.
FERNANDO
SUPREME COURT.
FERNANDO, J.
PERERA. J.
WIJETUNGA. J.
S.C. APPEAL NO. 2/93H.C. NEGOMBO NO. 8/91JUNE 28TH, 1993.
Industrial Dispute – Jurisdiction of the Provincial High Court in Appeals from theL.T. – Constitution, Article 154 P (3) (c) – High Court (Special Provisions) Act, No.19. of 1990, Section 4.
The Applicant-Respondent filed an application to the Labour Tribunal in July,1987. The employer-appellant filed the answer in September, 1987. Bothdocuments referred to the ‘Labour Tribunal" but did not further describe theLabour Tribunal. The parties were resident/situated within the North WesternProvince. The applicants replication referred to the "Labour Tribunal No. 21,Negombo Circuit Chilaw."
Proceedings were held by the President, Labour Tribunal – Negombo, sitting atChilaw. In the course of the proceedings an order was made on a preliminaryobjection and the caption of the order read “In the Labour Tribunal No. 21 -Circuit Chilaw". In the final order made on 26.5.91 it was captioned "LabourTribunal 21 – Negombo" without reference to circuit Chilaw. On 1.8.1991 thePresident made a correction to the earlier order but again as "President, LabourTribunal Negombo."
The employer-appellant appealed from the said order to the High Court ofWestern Province, and an objection was taken up by an Applicant-Respondentthat the High Court of Western Province had no jurisdiction and that an appealshould have been tiled in the High Court of North Western Province.
Held:
Under Article 154 P(3) (c) of the Constitution Parliament was empowered toconfer additional jurisdictions and powers on the High Court for the Province.Under Act No. 19 of 1990 the High Court for the Province was granted appellate
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jurisdiction in respect of orders made by the Labour Tribunals within thatProvince. Section 4 confers the right on the party aggrieved by an order of theLabour Tribunal to appeal to the High Court for the province within which suchLabour Tribunal is situated. Also the Industrial Disputes (Amendment) Act No. 32of 1990 gives the right of appeal to the High Court lor the Province within whichthe Labour Tribunal concerned was situated. Thus the statutory provision refers tothe province within which the tribunal is ‘situate1.
'Situation' is far more appropriate to refer to the physical location of the Tribunalrather than to some other place where the President happened to exercise someof his functions on a particular occasion. Further the Tribunal also described itselfas the Labour Tribunal, Negombo, in its order.
Therefore the order made in the present case having been made by LabourTribunal, Negombo, comes within the jurisdiction of the High Court of the WesternProvince.
Case referred to:
Jaffarjee v. Subramaniam {1969) 71 NLR 518APPEAL from order of the District Court
Asoka de Silva D.S. G. with R. Nawinne S.C. for employer-appellant.
A. D. de Silva with Namal Punchihewa and S. Weerakoon for appellant-respondent.
Curadv vult.
June 28th, 1993.
FERNANDO, J.
The applicant-respondent filed an application to the Labour Tribunalin July, 1987 and the employer-appellant filed its answer inSeptember, 1987. Both documents referred to the ‘Labour Tribunal"but did not further describe the Labour Tribunal. The applicant-respondent was resident, and the employer-institution was situated,within the North-Western Province. In the applicant’s replication theLabour Tribunal was referred to as “Labour Tribunal No. 21Negombo-circuit Chilaw." It is the common ground that thereafterproceedings were held by the President, Labour Tribunal-Negombo,sitting at Chilaw. The record of each day’s proceedings is headed“Labour Tribunal circuit at Chilaw. In the course of the proceedings
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Coconut Research Board v. Fernando (Fernando, J.)
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an order was made on a preliminary objection, and the caption to thatorder reads “In the Labour Tribunal No. 21 – circuit at Chilaw" andwas signed by the President as “Labour Tribunal No. 21 – circuit atChilaw". It was apparently delivered at Chilaw on 9th February, 1988.Parties also filed written submissions. The applicant’s writtensubmissions referred to the "Labour Tribunal, Chilaw circuit". The finalorder made on 25th June, 1991 is captioned “Labour Tribunal 21Negombo". There is no reference to the circuit at Chilaw. ThePresident gave his designation as “President, Labour Tribunal 21 -Negombo" and the order was signed at Negombo on 25th June,1991. Again on 1st August 1991, as “President, Labour Tribunal 21Negombo", he made a correction in respect of his order. Theemployer-appellant lodged an appeal against that order in the HighCourt of the Western Province. That appeal was taken up forconsideration by the High Court Judge exercising jurisdiction atNegombo. In the course of the submissions, an objection was takenby the applicant that the High Court of the Western Province had nojurisdiction; and that it was only the High Court of the North WesternProvince (that is, the High Court Judge sitting at Chilaw) which hadjurisdiction in respect of an appeal against the order of the LabourTribunal.
Under Article 154P(3) (C) Parliament was empowered to conferadditional jurisdictions and powers on the High Court for theProvince. Under the High Court (Special Provisions) Act No. 19 of '90,the High Court for the Province was granted appellate jurisdiction inrespect of orders made by the Labour Tribunal within that province.Section 4 conferred the right on the party aggrieved by an order ofthe Labour Tribunal to appeal to the High Court for the provincewithin which such Labour Tribunal is situated. Similarly by theIndustrial Disputes (Amendment) Act No. 32 of 1990 the right ofappeal was given to the High Court for the province within which theLabour Tribunal concerned was situated. Mr. A. A. de Silva for theapplicant contends that in determining where the Tribunal wassituated, for the purpose of these provisions, one has to take intoaccount firstly, the fact that the Labour Tribunal has all-islandjurisdiction; (Jafferjee v. Subramaniamin) secondly the place ofresidence of parties, and thirdly the place where the Presidentfunctions (and in this case, the fact that all the evidence was
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recorded in Chilaw). He further submits that the purpose of Article154 P was to enable parties to have their dispute finally adjudicatedin the Province in which they reside. He therefore submits that theTribunal whose order is challenged in this case could be regarded ashaving been situated in Chilaw.
We are unable to uphold that submission. The statutory provisionsrefer to the Province within which the Tribunal is ‘situate’. We mustassume that the legislature intended to refer to some definite, easilyascertainable, factor rather than a vague or indeterminate factor.'Situation' is far more appropriate to refer to the physical location ofthe Tribunal (and its office) rather than to some other place where thePresident happened to exercise some of his functions on a particularoccasion; it refers to a permanent physical link, rather than to atransient or temporary presence in a place. For instance, if pleadingswere filed in one place, and the proceedings took place in two orthree other locations, and the order was made in yet another place,there would be a considerable difficulty in determining where theTribunal was situated; if situation was intended to refer to the placewhere it exercised its functions.
There is also the important consideration that the Tribunal in itsorder described itself as the Labour Tribunal Negombo.
In these circumstances it is clear that the order made in thepresent case was made by the Labour Tribunal at Negombo; that theTribunal was situated within the Western Province; and that the HighCourt Western Province functioning at Negombo, had jurisdiction todetermine the appeal. The order of the High Court holding that it hadno jurisdiction is set aside. Counsel do not wish us to adjudicateupon the merits of the case, on which we therefore express no view.The High Court for the Western Province sitting at Negombo isdirected to hear and determine the appeal on the merits asexpeditiously as possible. There will be no costs of appeal.
Appeal allowed.