059-NLR-NLR-V-71-COLOMBO-APOTHECARIES-CO.-LTD.-Petitioner-and-E.-A.-WIJESOORIYA-and-4-others-.pdf
Colombo Apothecaries Co. Ltd. v. Wijesooriya
258
1988 Present: Siva Supramanlam, J., and Tennekoon, J.COLOMBO APOTHECARIES CO. LTD., Petitioner, and
A. WIJESOORIYA and 4 others, Respondents
8.C. 127/68—Application for conditional leave to appeal to the PrivyCouncil in S.C. Application 232(67
Privy Council—Conditional leave to appeal—Applicability of expression " civil suitor action ” to an application for a Writ of Prohibition or Certiorari—“ Questionof great general a-public importance"—Appeals (Privy Council) Ordinance,s. 3, Schedule, Rule 1 (b)—Industrial Disputes Act, s. 4 (J).
An application for a Writ of Prohibition against a Labour Tribunal wasrefused by the majority (4) of a Bench of seven Judges who heard it. Thequestion involved was whether or not the law has given the Minister of Laboura discretionary power by means of a reference under section 4 (1) of theIndustrial Disputes Act to vest a jurisdiction in a Labour Tribunal in certaincircumstances of common occurrence. In the present application the petitionerBought conditional leave to appeal to the Privy Council from the judgmentof the Supreme Court.
Held, (i) that an application hr a Writ of Prohibition, or even an applicationfor certiorari, is a civil suit or anion within the meaning of section 3 of theAppeals (Privy Council) Ordinary©. The decision of a Bench of five Judgesto the contrary in Silverline Bus Co., Ltd. v. Kandy Omnibus Co., Ltd. (68N. L. R. 193) was overruled by the Privy Council in Tennekoon v. Duraisamy(69 N. L. R. 481).
(ii) that the question involved in tie appeal was one of great general orpublic importance. The provisions, therefore, of Rule 1 (6) of the Scheduleto the Appeals (Privy Council) Ordinance were applicable.
Application for conditional leave to ajpeal to the Privy Council.H. W. Jayewardene, Q.C., with B. Eliyatamby for the Petitioner.
J. Fernando, for the 2nd Respondent.
Cur. adv. vult.
TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijeeooriya
259
May 122, 1968. Tennekoon, J.—
On the 12th of April 1967 the Minister of Labour purporting to actunder section 4 (1) of the Industrial Disputes Act referred a disputebetween the petitioner-petitioner (hereinafter referred to as thepetitioner) and the 6 respondent-respondent (hereinafter referred to as therespondent) for settlement by arbitration to a Labour Tribunal.
The petitioner applied to this Court for a Mandate in the nature of aWrit of Prohibition against the Labour Tribunal prohibiting it fromproceeding to hear and settle the said dispute. I was myself one of the.seven Judges who heard the application for Prohibition and the followingextract from my judgment sets out certain facts relating to the hearing ofthat application by this .court:—
“ When this matter was first listed before a Bench of two Judges,of whom My Lord the Chief Justice was one, Counsel for the petitioner•ndicated that despite the Privy Council decision in The UnitedEngineering Workers' Union v. K. W. Devavayagam 69 N. L. R. 289 theconstitutional attack on the Industrial Disputes Act was still open tohim, as in his submission, any pronouncements made by their Lordshipsof the Privy Council on the question arising in this case were obiteror at least that the facts relating to the question of jurisdiction in thePrivy Council case were capable of being distinguished from the factsthat arise in the instant case. My Lord the Chief Justice, being ofopinion that it was desirable in the public interest that a question ofsuch a nature should be early and filially settled, referred the matterto a Bench of seven Judges. It is in this way that this matter hascome up. before the present Bench consisting of that number ofJudges.
At the argument however, Counsel for the petitioner indicatedshat having examined the matter further he found it unnecessary tosupport his case on the ground that so much of the Industrial DisputesAct which authorises the Minister to refer a dispute relating totermination of the services of a workman for settlement to a LabourTribunal was unconstitutional and void; he stated that he intended to>jupport the application on a ground which, if it was narrower becauseit had nothing to do with constitutional law, was equally importantviz. that the 5th respondent’s lack of jurisdiction arose not from anyunconstitutionality in the enabling Act, but for the reason that thedispute referred to the 5th respondent was not an “ industrial dispute ”within the meaning of the Industrial Dispute Act.”
The Bench of seven Judges by a majority of 4 to 3 held that theLaboqr Tribunal, bad .power and jurisdiction to hear the dispute and theapplication for Prohibition was dismissed.
The petitioner has now applied for leave to appeal to Her Majesty inCouncil under rule 1 {b) of the schedule of rules to the Privy CouncilAppeals Ordinance.
2G0TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
The respondent has objected to the grant of leave. The first groundof objection was that an application for a Mandate of Prohibition waenot a civil suit or action within the meaning of section 3 of the PrivyCouncil Appeals Ordinance for the reason that such an application waenot a proceeding in which one party sues for or claims something fromanother in regular civil proceedings.
In the case of Tennelcoon v. Duraisamy1 it was held by the PrivyCouncil that an appeal to the Supreme Court from an order made by theCommissioner for the Registration of Indian and Pakistani Residents isa civil suit or action within the meaning of section 3 of the Privy CouncilAppeals Ordinance. The ratio decidendi of this case is that to be a civilsuit or action it is not necessary that relief or remedy should be claimedby one person against another. Their Lordships went on to say that intheir opinion the word “ action ” in section 3 of the Privy Council AppealsOrdinance bears the meaning attributed to it in section 6 of the CivilProcedure Code, viz. “ Every application to a court for relief or remedythrough the exercise of the court’s power or authority, or otherwise toinvite its interference, constitutes an action ”. The respondent howeverrelies on the case of Silverline Bus Co., Ltd. v. Kandy Omnibus Co., L'.d.*where a Bench of five Judges of this court overruled In re Gooneswha3and Kodakan Pillai v. Madanayake 4 and held, by a majority of 4 to Ithat an application for certiorari was not a “ civil suit or action ” for thepurposes of Privy Council Appeals Ordinance for the reason that anapplication for certiorari was not a proceeding in which one party sues foror claims something from another in regular civil proceedings. It i3 tobe noted that the ratio of the Silverline case was exactly what wasrejected by the Privy Council in the former case. Lord Morton ofHenryton in the course of his opinion states as follows :—
“ After the application for leave to appeal to the Privy Council hadbeen granted in the present case a bench of five judges (one of "whomdissented) in the case of Silverline Bxis Co., Ltd. v. Kandy Omnibus Co..Ltd. (1956) 58 N.L.R. 193 after a very full and careful review of twoconflicting lines of authority, decided that an application to the SupremeCourt for a writ of certiorari was not a “ civil suit or action ” withinthe meaning of section 3 of the Appeals Ordinance. Counsel for theCommissioner in the present case did not contend that the decision inthe Silverline case was wrong : the point actually decided is not beforetheir Lordships, and they have heard no argument upon it. It follows,however, from the views which they have already expressed that theycannot accept the view of Basnayake, C.J., that the words ‘ civil suit. or action ” in section 3 of the Appeals Ordinance should be limitedto “ a proceeding in which one party sues for or claims somethingfrom another in regular civil proceedings
It is true that the Privy Council did not expressly overrule the Silverlinecase. However, in considering the binding authority of a previousdecision, it is important to pay attention to the ratio decidendi of the
* (1958) 59 N. L. R. 481.. • (1942) 44 N. L. R. 75.
8 (1956) 58 N. L. R.193.(1954) 55 N. L. R. 572.
Dharmatrarden'i v. Ediriringhe
261
previous case and not to any accidental features which tend to show asimilarity or dissimilarity to the case under consideration, and to applythat ratio to any later case which is not reasonably distinguishable.
It seems to me that in Tennekoon v. Duraisamy the Privy Council hasclearly and unambiguously condemned and rejected the major premisewhich formed the ratio in the Silverline case and applied a ratio underwhich an application for prohibition (which is this case) and indeed evenan application for certiorari would clearly be a civil suit or action forthe purposes of section 3 of the Privy Council Appeals Ordinance.
The respondents* first ground of objection accordingly fails.
The 2nd ground of objection was that the matter in dispute did notinvolve a question of great general or public importance. I believethat the Bench of seven Judges in permitting this question to be arguedbefore them recognised it as one of more than ordinary importance ; itseems to me that the question whether or not the law has giventhe Minister of Labour a discretionary power by means of a referenceunder section 4 (1) of the Industrial Disputes Act to vest a jurisdiction ina Labour Tribunal or an arbitrator in circumstances such as existed inthis case—:and which are indeed of common occurrence—is one ofsufficient importance fit to be submitted, and one which ought to besubmitted, to Her Majesty in Council for a decision.
The respondent finally submits that this court should refuse leave toappeal in the exercise of its discretion in view of delay,, hardship andinconvenience to him. I am not persuaded that these features arepresent in any greater degree in the present case than one finds in theordinary run of cases under our legal system.
The application for leave to appeal is accordingly allowed subject tothe usual conditions.
Siva Supramaniam, J.—I agree.
Application allowed.