020-SLLR-SLLR-1997-2-COLOMBO-SOUTH-MULTI-PURPOSE-CO-OPERATIVE-SOCIETY-LTD-v.-CO-OPERATIVE-EMP.pdf
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Colombo South Multi-purpose Co-operative Society Ltd. v.
Co-operative Employees' Commission.
225
COLOMBO SOUTH MULTI-PURPOSECO-OPERATIVE SOCIETY LTD.v.
CO-OPERATIVE EMPLOYEES' COMMISSION
SUPREME COURT.
FERNANDO, J„
DHEERARATNE, J. ANDWIJETUNGE, J.
S.C. 126/94.
C A 53/90
M.C. COLOMBO 50459/3.
C.A. 92/90.
M.C. COLOMBO 65117.r* a q^/q^
M.C. COLOMBO 60205.
FEBRUARY 6, 1996.
Co-operative Employees Commission Act, No. 12 of 1972 – Sections 35, 11(1)(e), 32(1) (2) of the Act – Disciplinary proceedings – Appeals – Rules 135, 136,137 of Regulations – Ultra Vires – Fair Hearing – Complaint by Commission to theMagistrate's Court against the Society.
Disciplinary proceedings were taken by the Committee of the Society against anemployee V who was interdicted without pay pending a decision at an inquiry. Atthe inquiry the principal witness failed to turn up. The Employee was acquitted.However, the Committee reinstated V without back wages for the period ofinterdiction. V appealed to the Co-operative Employees Commission (CEC) on thequestion of back wages. The CEC dismissed the said appeal. On a secondappeal the CEC varied its earlier order and decided that arrears of salary shouldbe paid to V. The CEC had on the second appeal examined the record of thedisciplinary proceedings held against V and the file relating to N who had beenpaid back wages after being acquitted on similar charges (identical). The case ofN was that new material was provided to the CEC at the second appeal. TheSociety refused to pay the arrears of salary to V though directed by CEC.
On a complaint made by CEC to the Magistrate’s Court against the Society forwilfully neglecting or refusing or failing to implement the order given by CEC tothe Society, the Society was convicted.
An appeal made to the Court of Appeal was dismissed. On appeal, it was thePetitioner’s contention that –
the Rules 135,136,137 are ultra vires the CEC Act.
that there was no fair hearing.
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■ [1997] 2 Sri L.R.
Held:
The rules under consideration do not seek to introduce any substantive law.They are purely procedural in nature and therefore do not go beyond the rulemaking power conferred by section 32.
It seems that provisions for submission of written material only by parties at ahearing of an appeal is not always obnoxious to the principle that they are entitledto a fair hearing. The audi alteram partem rule does not inflexibly require an oralhearing. The provisions of rules 136 and 137 which permit, but do not compel, theCommission to decide an appeal (not involving termination of services ordismissal) on the basis of written material, is not contrary to natural justice. Thereis no doubt that in substance the society was afforded a hearing in terms of therules. Section 32(1) empowers the Commission to make all regulations as may benecessary for carrying out the provisions of the Act.
APPEAL from the judgment of the Court of Appeal.
Cases referred to:
Ran Banda v. River Valleys Development Board (1968) 71 NLR 25.
Ceylon Workers Congress v. Superintendent, Beragala Estates (1973) 76NLR 1.
Ceylon Co-operative Employees Federation v. Co-operative EmployeesCommission (1976) 78 NLR 518.
Lloyd v. McMahon 1987 AC 625.
Stuart v. Raughley Parochial Church Council (1935) CH 452 (1936) CH 32.
Chula de Silva PC with M. Hussain and C. Wimalaratne for appellant.
K.Siripavan SSC for Respondent.
Cur. adv. vult.
February 26,1996.
DHEERARATNE, J.
When the three cases MC Colombo 50459, 65117, and 60205were taken up in the Magistrate’s Court, parties agreed to abide bythe decision in the case No. 50459 and evidence was led in that caseonly. The accused-appellant Society (the Society) was convicted inthat case and convictions were entered in the other two cases aswell. In the Court of Appeal too, parties agreed to abide by thedecision on appeal in the first case and consequently there is one
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judgment of the Court of Appeal affirming the convictions in respectof all three cases against which judgment on appeal has now beenpreferred to this Court.
The undisputed facts of the first case are these: Disciplinaryproceedings were taken by the Committee (the governing body) ofthe Society against an employee called Vidanapathirana who wasinterdicted without pay pending a decision at an inquiry. At theinquiry, the principal witness against the employee, one H. M. L.Nandasena failed to turn up, therefore the employee was acquitted ofthe charges. However, the Committee decided to reinstate theemployee but without back wages for the period of interdiction. Theemployee, thereupon appealed to the respondent Co-operativeEmployees Commission (the Commission) on the question of backwages. The Commission dismissed the appeal. On a second appealmade by the employee, the Commission varied its earlier order anddecided that arrears of salary should be paid to the employee. Thesecond order, among other matters reads, "The Commissionexamined the record to the disciplinary proceedings held against theemployee and the file relating to H. M. L. Nandasena who had beenpaid back wages after being acquitted on similar charges”. The caseof Nandasena was obviously new material provided to theCommission for consideration at the second appeal. The Societynevertheless failed and refused to pay arrears of salary to theemployee, although it was directed to do so by the Commission. It issignificant to note that the fact that the cases of Liyanapathirana andNandasena were similar (indeed identical) was not challenged eitherin the original Court or in Appeal.
A complaint was then made by the Commission to the Magistrate’sCourt against the Society, that in breach of section 35 of theCo-operative Employees’ Commission Act, No. 12 of 1972, theSociety has wilfully neglected or refused or failed to implement theorder given by the Commission to pay arrears of salary due to theemployee. The procedure for appeals to the Commission is laid downin Rules 135, 136 and 137 of the Regulations made under the Actand published in the Gazette dated 1.12.1981.
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Learned President’s Counsel in this appeal forcefully contendedthat the conviction of the Society should be set aside on the groundthat inasmuch as the Rules 135, 136 and 137 are ultra vires of theCo-operative Employees’ Commission Act, the conviction enteredagainst the Society based on an order made by the Commissionunder those rules was bad in law. Those rules, he contended, areultra vires for two reasons; first, they go beyond the rule makingpower conferred by subsection 32(1) of the Act; secondly, theyviolate the audi alteram partem rule of natural justice.
Section 11(1) (e) of the Act, empowers the Commission todetermine the procedure to be followed by any society in exercisingits rights of disciplinary action against its employees, to call upon anysociety to complete disciplinary action against its employees within atime stipulated by the Commission, and to hear appeals arising out ofany disciplinary orders made by any society. Subsection 32(1)empowers the Commission to make all regulations as may benecessary for carrying out the provisions of the Act; subsection (2)provides that no regulation made shall have effect unless it has beenapproved by the Minister and published in the Gazette.
The relevant rules read:-
All appeals to the Commission against an order made indisciplinary proceedings against an employee by a Committee, mustbe made in writing, substantially in the form given in Appendix-Vwithin sixty days of the date of the order, by the aggrieved employeehimself. Appeals made on his behalf by any other person may not beentertained or acknowledged. A copy of such appeal shall be sentby registered post by the employee to the Committee.
A second appeal within sixty days from the date of the decisionmay be allowed if the Commission is satisfied that there appears onthe. face of the appeal new and material facts which might haveaffected the decision together with adequate reason for nondisclosure of such facts at an earlier date.
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The Committee shall submit to the Commission withinfourteen days of the receipt by the Committee of a copy of suchappeal, a brief report relating to matters set out in such appeal, andany document relevant thereto shall be submitted by the Committeeconcerned to the Commission.
In every appeal other than an appeal from an order oftermination of services or dismissal, the Commission may decidesuch appeal on the basis of the written material in appeal.
I shall first deal with Learned Counsel’s submission that the rulesmade go beyond the rule making power conferred by section 32. Insupport of this submission reliance was placed on two decisions ofthis Court – Ran Banda v. RVDBm and Ceylon Workers' Congress v.Superintendent, Beragala Estates™. Both those cases dealt with rule16 of the Industrial Disputes Regulations of 1958 by which aprescriptive period was imposed within which a workman shouldcomplain to the Labour Tribunal. On the basis that such imposition ofa limitation was one of substantive law rather than procedure, it washeld that the impugned regulation was ultra vires of the IndustrialDisputes Act. The rules under consideration do not seek to introduceany such substantive law and they are purely procedural in natureand therefore the principle established in those cases has noapplication. I
I shall now turn to the argument of learned Counsel based on theaudi alteram partem rule on which he attacks the vires of theregulations made and the second order made by the Commission. Itcould be seen from rule 135 that in the case of all appeals to theCommission a copy of the appeal shall be sent by the employee tothe Committee. This procedure applies to a second appeal as well.Learned President’s Counsel contended that the first paragraph ofrule 135 applied only to the first appeal; and that upon a secondappeal, a copy of the appeal was not required to be sent to theCommittee. The word “appeals” in the first paragraph of rule 135refers to all appeals – first as well as second, and therefore the rulerequires a copy to be sent in the case of a second appeal as well.
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When the employee gave evidence, it was not put to him in cross-examination that he did not send a copy to the Committee. Althoughthe General Manager of the Society gave evidence thereafter he didnot say that the Committee did not receive any such copy. In terms ofrule 136 the Committee shall submit within 14 days of the receipt ofsuch copy of the appeal, a report relating to that matter and anydocument relating thereto to the Commission. The General Managerdid not say that such report or document was not submitted. It seemsto me that in all probability that was done which accounts for how theCommission had access to the file of Nandasena. The rules havesufficiently provided an opportunity for the case of the Society beingheard before the Commission by way of written material and theevidence led at the trial does not show that such material was in factnot submitted. There is no doubt that in substance the society wasafforded a hearing in terms of the rules.
Was there a fair hearing? Learned President’s Counsel submittedthat the rules should have provided only for an oral hearing of theappeal. In support of this contention, he cited the case of The CeylonCo-operative Employees' Federation v. The Co-operative Employees,Commission(3). That case related to an appeal made to theCommission on the dismissal of an employee, under the regulationspromulgated in 1972. The rule 102 in those regulations is identical tothe rule 137 of the present regulations; it excludes recourse to writtenmaterial only in the consideration of an appeal from an order oftermination of services or dismissal and it thereby impliedly requiresan oral hearing in such instances. Therefore, that case is clearlydistinguishable and has no relevance. It seems to me that provisionfor submission of written material only by parties at a hearing of anappeal is not always obnoxious to the principle that they are entitledto a fair hearing. See Lloyd v. McMahorP' and Stuart v. HaughleyParochial Church Council(5). The audi alteram partem rule does notinflexibly require an oral hearing. The provisions of rules 136 and 137which permit, but do not compel, the Commission to decide anappeal (not involving termination of services or dismissal) on thebasis of written material is not contrary to natural justice. It may be,however, that in some circumstances the Commission ought to
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exercise its discretion under rule 137 and to allow an oral hearing -but that does not mean that the rule is bad.
For the above reasons I am of the view that there has been a fairhearing afforded to the Society in terms of the rules and neither theorder made by the Commission nor the rules themselves are vitiatedfor non-compliance with the rule of audi alteram partem. Theconvictions are affirmed and the appeal is dismissed with costs.
It is unfortunate that protracted litigation has prevented threeemployees from obtaining what was due to them nearly thirteen yearsago. I direct the Registrar of this Court to send the records of thesecases to the Magistrates' Court forthwith to enable the learnedMagistrate to take steps to enforce the orders of conviction entered inthese cases as expeditiously as possible.
FERNANDO, J. – l agree.
WIJETUNGA, J. – I agree.
Appeal dismissed.
Conviction affirmed.