013-NLR-NLR-V-63-DON-EDWIN-Appellant-and-COMMISSIONER-FOR-WORKMEN’S-COMPENSATION-Respondent.pdf
WEERASO.ORIYA, J-—Don Edwin v. Commissioner for
Workmen's Compensation
83
Present: Weerasooriya, JT.; and T. S. Fernando, J.DON EDWIN, AppeUant, and COMMISSIONER FORWORKMEN’S COMPENSATION, Respondent
S. C. 2—D. C. (Iviy.) Colombo, 2368/X ■
Workmen's Compensation Ordinance {Cap. 117), as amended by Act No. 31 of 1957—Money due under an award—Procedure for recovery—Right to seize immovableproperty—Retrospective effect of Section 41 (2)-—Inapplicability of Section 6 (3)(c) of Interpretation Ordinance {Cap. 2)—Inapplicability of Section 10 ofPrescription Ordinance (Cap. 55).
The amendments of sections 40 and 41 of the Workmen’s CompensationOrdinance by Act No. 31 of 1957 are retrospective in operation. Section 6 (3)(c) of the Interpretation Ordinance is inapplicable to them. Accordingly,immovable property may be seized and sold for the recovery of money dueunder an award given prior to the enactment of Act No. 31 of 1957.
Proceedings taken under section 41 of the Workmen’s Compensation Ordin-ance for the enforcement of an award are analogous to proceedings in executionof a decree, and are a continuation of the action in which the award was made.They do not constitute a separate action, nor does section 10 of the PrescriptionOrdinance apply to such proceedings.
Appeal from an order of the District Court, Colombo.
G. T. Samarawickreme, for respondent-appellant.
A. Mabendrarajah, Crown Counsel, for petitioner-respondent.
Cur. adv. milt.
January 5, 1961. Weerasoobiya, J.—-
This appeal arises from an application to the District Court of Colomboin terms of section 41 (2) of the Workmen’s Compensation Ordinance(Cap. 117.) as amended by the Workmen’s Compensation (Amendment)Act, No. 31 of 1957, for the issue of writ to seize and sell certain immovableproperty belonging to the respondent-appellant in order to. realise thebalance due from him bn an award of compensation in favour of oneR. P. Lewis Singho, a workman. The amount of the award, which isdated the 21st November, 1953, was Rs. 4,246/50 including costs. As aresult of proceedings taken under section 41 of the Ordinance (before itwas amended) a sum of Rs. 2,376/76 was recovered by distress and saleof the appellant’s movable property, leaving a balance due of Rs. 1,869/74,in respect of which the application under section 41 (2) was made.
The appellant filed objections to the issue of writ, of which the only onepressed at the inquiry before-the District Judge was that section 41 (2),being a subsequent amendment introduced by Act No. 31 of .1957, is notretrospective in operation and, therefore, the method of recovery pro-vided therein is not available in this case. The District Judge dismissedthe objections and the present appeal is against that order.
84
WEERASOORIYA, J.—Don Edwin v. Commissioner for
Workmen’s Compensation
Prior to the enactment of Act No. 31 of 1957, any sum payable in termsof an award of compensation under the Workmen’s Compensation Ordin-ance was recoverable under section 41 as if it were a fine imposed by aMagistrate, which meant that only the movable property of a personagainst whom the award was made could be seized and sold. Moreover,section 40 prohibited recourse to the civil Courts for the purpose ofenforcing any liability incurred under the Ordinance. But by virtue ofAct No. 31 of 1957, the existing section 41 was re-numbered as section41 (1), and a new provision introduced as sub-section (2) enabling seizureand sale of immovable property of the defaulter under a writ issued by aDistrict Court or a Court of Requests on an application made in thatbehalf; and section 40 was consequentially amended so as to conferjurisdiction on those Courts to entertain an application under section41 (2).
In contending that the procedure for the recovery of any sum due underthe award is governed by sections 40 and 41 as they stood prior to theamendments effected by Act No. 31 of 1957, Mr. Samarawickreme whoappeared for the appellant relied strongly on section 6 (3) (c) of theInterpretation Ordinance (Cap. 2) which reads as follows—
“ Whenever any written law repeals either in whole or part a formerwritten law, such repeal shall not, in the absence of any expressprovision to that effect, affect or be deemed to have affected—
(«)
any action proceeding or thing pending or incompleted when the
repealing written law comes into operation, but every suchaction, proceeding or thing may be carried on and completedas if there had been no such repeal. ”
If the above provision applies to this case there can be no doubt thatMr. Samarawickreme’s contention is entitled to succeed, provided theapplication for writ was made in an “ action, proceeding or thing pendingor incompleted ” when the amendments to sections 40 and 41 came intooperation. Learned Crown Counsel who appeared for the respondentargued, however, that the amendments cannot be regarded as amountingto a repeal of sections 40 and 41 or any part of them, and that section 6 (3)(c) is therefore not applicable.
The usual processes by which the legislature provides that existinglaw shall cease to be operative are amendment, repeal, suspension andexpiry. Amendment is the wider term, and may include a repeal as, forinstance, where a law is repealed in part and added to in part—both pro-cesses being regarded as an amendment of the law. To repeal means toabrogate or annul. When the amendments of sections 40 and 41 byAct No. 31 of 1957 are examined it is apparent that there has been noabrogation or annulment of any part of those sections, either expressly orby implication. Suspension and expiry are also different from repeal.
WEERASOORIYA, J.—Don Edwin a. Commissioner for
Workmen's Compensation
85
It was held in The Queen v. (I) Fernando and (2) Carolis 1 that the suspen-sion of an enactment does not attract the provisions of section 6 ofthe Interpretation Ordinance. In Attorney General v. Francis 2 section6 (3) was held not to apply to written laws that have expired. Section 6was thereafter amended by the addition of a new sub-section (3A) dealingwith the expiration of written law.
A similar question was considered under section 38 (2) of tho EnglishInterpretation Act, 1889, in Director of Public Prosecutions v. Lamb 8.That case dealt with the effect of an amendment of Regulation 9 of theDefence (Finance) Regulations, 1939, by the addition of a new paragraphat the end of the existing regulation, and three Judges of the King'sBench Division (Humphreys, Tucker and Cassels, JJ.) decided that theamendment did not amount to a repeal.
I would, therefore, hold that section 6 (3) of the InterpretationOrdinance has no application to the present case.
Mr. Samarawickreme stated that in the event of section 6 (3) being heldnot to be applicable, he would fall back on the general principles whichgovern the question as to the extent to which subsequent legislation canbe regarded as interfering with the rights of parties in a pending action.These principles are clear enough. As stated by Lord Denham inHitchcock v. Way 4, “ the law as it existed when an action was commencedmust decide the rights of the parties in the suit unless the Legislatureexpress a clear intention to vary the relation of litigant parties to eachother ”. But even so, it is necessary to ascertain whether any rights ofthe appellant are adversely affected by the amendments to sections 40 and41. Mr. Samara wickreme submitted that these sections, as they stoodprior to the amendments, conferred on the appellant an immunity fromseizure of his immovable property for the recovery of what is due underthe award.'
In Starey v. Graham 6 Channell, J., defined “ right acquired ” as “ somespecific right which in one way or another has been acquired by an indivi-dual, and which some persons have got and others have not ”. He pointedout that it does not mean a “ right ” in the sense in which it is often popu-larly used, such as a “ right ” which a person has to do that which the lawdoes not expressly forbid. In my opinion, sections 40 and 41 prior to theamendments cannot be regarded as conferring on the appellant anyright or immunity as claimed for him by Mr. Samarawickreme. I inclineto the view, which found favour with the learned District Judge too, thatthis is simply a case where there was a lacuna in the procedure originallylaid down in section 41 which, in effect, prevented any property other thanmovable property being seized and sold in the enforcement of an award ;and that in introducing the subsequent amendments the legislature soughtto make good the omission by providing for the additional method ofrecovery by seizure and sale of immovable property as well. 1
1 (1959) 61 N. Is. R. 395.8 (1941) 2 A. E. R. 499.
* (1946) 47 N. L. R. 467.4 6 Ad. <b El. 943 (112 E. R. 360).
5 (1899) 1 Q. B. 406 at 411.
86
WEERASOORIYA, J.—Don Edwin v. Commissioner for
Workmen's Compensation
Maxwell on The Interpretation of Statutes .(10th edition, 213) pointsout that it is upon the presumption that the legislature does not intendwhat is unjust that the leaning against giving a retrospective operation toa statute rests. There can be no question that even after the appellant’smovable property was seized and sold and a part of the amount due on theaward realised, his liability to pay the balance continued without anydiminution notwithstanding that at the time there was no machineryprovided in the Ordinance for the enforcement of that liability by theissue of writ against his immovable property. It could hardly be urged,therefore, that injustice will be caused if sections 40 and 41 in theiramended form are so construed as would permit of recourse to theadditional method of recovery provided therein against a debtor who,having the means to satisfy an award, refuses to do so. This is anotherreason for holding that the amendments are retrospective in operation.
I think that the case of Supramaniam Chettidr v. Wahid 1 decided bymy brother, and to which Mr. Samarawickreme drew our attention, canbe distinguished from the present case. The plaintiff in that case hadobtained a money decree against the defendants and caused to be seizedin execution of the decree a certain sum which was owing to the 2nd defen-dant from his employer as “ salary The validity of the seizure was,however, challenged on the ground that under item (m) of the provisoto section 218 of the Civil Procedure Code the salary and allowances of anemployee in a shop or office are exempt from seizure if they do not exceedRs. 500 per mensem. Admittedly the salary and allowances of the 2nddefendant, who was an office employee, did not exceed that figure. Theseizure took place after section 218 was amended by the addition of item(m) to the list of excepted property in the proviso. But the action wasfiled, and decree obtained, before the coming into operation of the amend-ment. My brother held that the right to seize all sums of money by wayof salary and allowances of the 2nd defendant, which had accrued to orvested in the plaintiff with the entering of the decree, was not taken awayby .the subsequent amendment. As section 218 confers on the holder of amoney decree a positive right to seize and sell certain specified property,the ratio decidendi of that case would appear to be in accord with Channell,
J.’s definition of a “ right acquired ” in Starey v. Graham {supra).
The final objection taken by Mr. Samarawickreme to the issue of writ isbased on prescription. He submitted that a cause of action accrued whenthe award of compenstion was entered on the 21st November, 1953, and theapplication for writ was, in relation to that cause of action, an “ action ”which should have been filed within three years of the entering of the award,whereas it was filed only on the 30th May, 1958, and was therefore pres-cribed under section 10 of the Prescription Ordinance (Cap. 55). Section 3of the Workmen’s Compensation Ordinance provides that (subject to theexceptions in the proviso) if personal injury is caused to a workman byaccident arising out of and in the course of his employment, his employer
1 (1956) 58 N. L. JR. 140 j
AVEERASOOBIYA', J.—-JDon-Edtoin v. Commissioner for
Workmen's Compensation
87
shall be liable to pay compensation in accordance with the provisions ofthe Ordinance. Section 16 imposes a time limit for the institution ofproceedings to recover compensation. According to Mr. Samarawickreme,the proceedings instituted in respect of the liability of the appellant undersection 3 were brought to a termination when the award now sought to beenforced was made, and a fresh cause of action arose upon the award. Anordinary civil action does not, however, terminate with the entering of thedecree, and proceedings taken in execution have, as far as I am aware,been always regarded as a continuation of the action. In Peries v. Cooray1it was held that there is no time limit within which a first application forthe execution of a writ may be granted. As pointed out in that case,section 5 of the Prescription Ordinance, which restricted the right of ajudgment-creditor to execute a decree after the expiry of ten years, wasrepealed by the Civil Procedure Code. Although the decree was over tenyears old when it was sought to be executed it was never contended that,the repeal of section 5 notwithstanding, any of the other provisions ofthe Prescription Ordinance applied to the case. In the Siyane GangabodaCo-operative Stores Union Ltd. v. Amarasekere 2 the question that arose wasin regard to the enforcement of an award under the Co-operative SocietiesOrdinance (Cap. 107). The rules made under the Ordinance provide forthe enforcement of an award as a decree of Court. An objection takento the enforcement of the award on the ground that no applicationto have the award filed in Court had been made in terms of section 696 ofthe Civil Procedure Code within six months of the making of the award,was upheld by the District Judge. In appeal this Court took the viewthat section 696 was not applicable and sent the case back to the DistrictCourt for writ of execution to issue. The application for enforcement ofthe award had been made nearly six years after the date of the award.Although the question of prescription was not specifically raised or con-sidered, the decision appears to have proceeded on the basis that a validaward under the Co-operative Societies Ordinance can be enforced as adecree of Court irrespective of the time that has elapsed.
In my opinion, the proceedings taken under section 41 of TheWorkmen’s Compensation Ordinance for the enforcement of an awardare analogous to proceedings in execution of a decree, and are acontinuation of the action in which the award was made. They do notconstitute a separate action, nor does section 10 of the PrescriptionOrdinance apply to such proceedings.
For these reasons the appeal fails and must be dismissed with costs.T. S. Fernando, J.—I agree.
Appeal dismissed.
1 (1909) 12 N. L. R. 362.* (1958) 60 N. L. R. 45.