WIJAYATTLAKE, 3.—Abdeen v. Ponnusamy
1972Present: WijayatUake, J.
H. M. Z. ABDEEN (Managing Proprietor, Haloya Eatate), Appellant,and N. PONNUSAMY, Respondent
S. C. 39/71 and 52/71—Labour Tribunal Case K/9639
Labour Tribunal—Service of notice of date of inquiry—Omissions and irregularities—Procedure that should be followed—Industrial Disputes Regulations 23, 25 etseq.—Civil Procedure Code ss. 370 et seq.
Ex parte order was made against the 1st employer-appellant on the basisthat notice of the date of inquiry had been served on him by the Police whohad been entrusted to serve the notice. But the return relating to serviceof notice was merely a chit with a note that notice had been served ; it did notset out when and where the notice was in fact served as required by theconditions of the process issued to the Police. The employer-appellantcategorically stated that notice was not served on him.
Held that there should be a fresh inquiry. “ Returns in the form as in theinstant case can lead to an abuse of procedure and it should be the duty ofPresidents to have them scrutinized and reject them and call for an explanationfrom the officer concerned lest these Applications before Labour Tribunalstake devious courses and in the result tend to defeat both justice, and equity.”
It would be salutary for Labour Tribunals to conform to the procedure setout in sections 370 et seq. of the Civil Procedure Code and also to maintain aproper journal depicting all steps taken in any proceedings.
Appeal from an order of a Labour Tribunal.
P. Naguleswaran, with Sarath Dissanayake, for the let employer-appellant.
C. Eanganathan, Q.C., with U. C. B. Ralnayake, for the applicant-respondent.
Cur. adv. vuU.
January 3, 1972. Wuayatilake, J.—
This Appeal raises an important question of procedure in LabourTribunals.'
The applicant who has been a clerk-cum-teamaker of Haloya Estatesince 1951 alleges that his services were wrongfully terminated on 18.1.70.By his application dated 9.2.70 he prayed for re-instatement-with backwages, adequate compensation for loss of career and Estate Staffs’Provident .Fund contribution money due to him amounting to Rs. 18,020.In the caption to his application he has set out seven respondents whoare designated aB the “ employers The 1st respondent is designatedas the Managing Proprietor of Haloya Estate.'
WIJAYATHiAKE, J.—Abdeen v. Ponnuaamy
The case had been set down for Inquiry on 15.6.70 and the proceedingson this date have been recorded as follows :
“ Mr. Aboosaly mentions that Mr. Taylor is appearing for therespondent and moves for a postponement on personal grounds.
Mr. Wickremaratne has no objection. Refixed for 26.8.70.
Issue fresh notice on the respondent. Applicant takes notice. ”
It may be noted that the President appears to have been under theimpression that there was only one respondent as he has repeatedlyused the singular “ respondent
Thereafter when the case was called .on 26.8.70 it is recorded that therespondents are absent and the notices on the respondents have beenreturned undelivered. Mr. Wickremaratne had moved for fresh summonson the respondents through-the Police and summons had been issuedaccordingly for 24.l0.70 with a notice to them that if they failed toappear on the next-date ex parte evidence will be led and order made.Although the case had been refixed for 24.10.70 it had next been calledon 9.12.70 ; on which date it is noted :
“ The respondent is absent. Re-issue summons on the respondentthrough Galaha Police with the endorsement that if he fails to appearon tbe next date the matter will proceed exparte. Re-issuefor 23.1.71.”
Here again the President appears to have been under the impressionthat there was only one respondent. Furthermore, there is nothing toshow what transpired on 24.10.70. A medical certificate dated 18.10.70stating that the applicant is ill at the Cancer Institute, Maharagamahas been filed. Apparently the case has been postponed on this letterwithout even calling it on 24.10.70.
When the case-came up on 23.1.71 it is recorded that the respondentsare absent and that on the first date of Inquiry there was appearancefor the respondents and thereafter on all the dates of Inquiry therespondents were absent and notices were issued on the respondentsthrough the Police. Having referred to the respondents in the pluralthe record proceeds to state that notice of Inquiry for this date was sentthrough the Police and the Police have reported service of notice on therespondent. “ The respondent is absent to-day. ” It may be notedthat in regard to the service of notice the President has referred to the^respondent in the singular. Thereafter on the applicant moving the case'had proceeded to Inquiry ex parte. The applicant had given evidence ;but after his evidence the record does not indicate whether the Inquiryhad been adjourned or concluded! Thereafter on 12.2.71Mr. Wickremaratne, the Proctor for the applicant had brought to thenotice of the President that notices had not been served on all the partiesand that notice had been served through the Police only on the ManagingProprietor and he had moved for an order against him. Thereuponthe President, on the same day, had proceeded to enter judgment against
WTJAYATTLAKE, J.—Abdeen v. Ponnvsamy
the respondent for a sum of Rs. 29,916'70 cts. Apparently, here herefers to the 1st respondent. In his Order he observes that from therecord he finds that notice on the respondent had been served throughthe Police and the Police have reported service.
Mr. Naguleswaran, learned counsel for the appellant, submits thatthe entire proceedings are irregular as the President appears to haveoverlooked the fact that the Application was made against sevenrespondents; and having proceeded to Inquiry ex parte on a wrongassumption that notices had been served' on all the respondentsultimately sought to make an order against the 1st respondent on therepresentation made by the Proctor for the applicant that notice hadbeen duly served on him. Learned counsel for the appellant refersme to the Regulations 25 et seq. framed under the Industrial DisputesAct—Government Gazette 11,688 of 2.3.59 and to sections 370 et seq.of the Civil Procedure Code, and he questions the regularity of the serviceof notice on the 1st respondent too as the return is quite bare and itdoes not set out when and where the notice was in fact served as requiredby the conditions of the process issued to the Mahawela Police. On aperusal of this return I find that it is a chit with a note dated 21.1.71that notice had been served; but there is no reference whatever to thedate or place of suchservice. It is quite improper that the officer makingthis return has treated the Tribunal so casually and it is equallysurprising that the President had entertained it in this form and acceptedit as a due service of the notice issued by him. Returns in the form as inthe instant case can lead to an abuse of- procedure and it should be theduty of Presidents to have them scrutinized and reject them and callfor an explanation from the officer concerned lest these Applicationsbefore Labour Tribunals take devious courses and in the result tend todefeat both justice and equity.
The 1st respondent in his affidavit presented to the President on28.2.71 categorically states that notice was not served on him.Considering the quantum of the claim involved, it is very unlikely thatthe Managing proprietor would have ignored a summons or a noticein this case. In the light of my above observations a substantial doubtarises in this matter and I am of the view that the Order made ex partecannot be sustained. It would be salutary for Labour Tribunals toconform to the procedure set out in sections 370 et seq. of theCivil Procedure Code in the interests of all parties concerned.
Mr. Ranganathan, learned counsel for the applicant-respondent,submits that it is significant that the respondents have not filed answeralthough there is provision for them to do so under the IndustrialDisputes Act—see Regulation 31. In the circumstances, therespondents being in default issue of notice, on them would be redundantand any omission or irregularity in the service of notice is of no availto the appellants. However, the learned President having adoptedthe procedure of issuing notice on the respondents and the case having
WIJAYATILAKE, J.—Abdeen v. Ponnusamy
proceeded on that basis and the applicant’s Proctor having recognisedthe necessity for the service of such notice before an ex parte Order ismade, in my opinion, it is now too late in the day to fall back on thefailure of the respondents to file answer. In this context, I do notthink Regulation 23 is of any avail to the applicant.
With regard to the failure to serve notice on the other respondentsMr. Ranganathan relies on the judgment in Gaffoor v. Almeidal, butin my opinion, the facts can be clearly distinguished as in theinstant case the applicant has set out categorically in his application atparagraph 7 that he continued to serve “ these employers diligentlyand faithfully till December 1969 Therefore, the fact that the 1strespondent is the Managing proprietor is of little consequence.
I might mention that no journal appears to have been maintained bythe President in respect of this case, and I am of the view thatthe confusion which has resulted can be attributed to this. I shouldthink if Presidents of Labour Tribunals adopt the procedure prevalentin our Courts of maintaining a journal depicting the action taken manyof these irregularities could be avoided. I am constrained to makethis observation as this is not the first case where I have noticed theabsence of a proper journal. The mere filing of papers without referenceto the journal can lead to an abuse of procedure as in the instant case.In the light of the omissions and irregularities I have referred to I amunable to hold that the OrdeT made by the President is just and equitable.Vide Danny v. William 2 ; Bata v Sirisena 3.
I would accordingly set aside the Order and send the case back forInquiry de novo before another President. I make no order as to costsof Inquiry. I award the 1st Employer-appellant Rs. 250 as costs ofthis Appeal.
Case sent back for fresh inquiry.
1 (1971) 74 N. L. R. 164.
(1970) 74 N. L. R. 94.
(1969) 73 N. L. R. 23.
H. M. Z. ABDEEN (Managing Proprietor, Haloya Estate), Appellant, and N. PONNUSA