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JANATHA ESTATES DEVELOPMENT BOARD
v.
CEYLON ESTATES STAFFS UNIONAND ANOTHER
SUPREME COURT.
G. P.S.DE SILVA. CJ..
KULATUNGA. J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 41/93.
C.A. NO. 111/84.
LT. CASE NO. 9/111 75/84.
NOVEMBER 24.1993.
Industrial Dispute – Time bar in section 31(D) (3) of Industrial Disputes Act.
The 1st respondent on behalf of its mem^c: Shanmugaratnam, filed actionagainst the employer for wrongful termination. On the 2nd respondent(Shanmugaratnam) desiring to conduct his own case, the Union stepped out ofthe case. The President decided to treat the application as an individualapplication but did not amend the caption. The Labour Tribunal on 29.09.83dismissed the application stating that the employee had vacated his employmentand the application was time barred.
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Held:
The workman is the principal and has the choice of deciding –
(i) to appeal against the order of Tribunal,and (ii) who is to prosecute the appeal i.e. either himself or by a chosenagent.
The workman was not fettered in pursuing an appeal in time by the failure ofthe Labour Tribunal to amend the caption.
Both the union and the 2nd respondent (operating from the same address)were obviously aware of the order of the Tribunal by 7.10.83 and there was nolegal fetter against either of them appealing within time.
Cases referred to:
United Plantation Workers Union v. Superintendent Craig Estate 74 NLR 499
Peiris v. Laksalite Roche Co. 2 Sri Kantha's Law Reports 91.
Somapala v. The Superintendent New Valley Estate, Norwood et al. SC AppealNo. 13/89 SCM 03.04.92.
APPEAL on preliminary objection from order of Court of Appeal.
S. M. Fernando P.C. with Miss H. Fernando for appellant.
P. Valentine P.C. with Varuna Senadheera and P. Senanayake for 2nd respondent.
1st respondent absent and unrepresented.
Cur. adv. vult.
December 02, 1993.
KULATUNGA, J.
This is an appeal against the judgment of the Court of Appealoverruling a preliminary objection raised by the employer-appellantthat the appeal against the order of the Labour Tribunal filed by the1 st respondent union (on behalf of its member Shanmugaratnam, the2nd respondent) was time barred by section 31 (D) (3) of theIndustrial Disputes Act.
The 1st respondent Union applied to the Labour Tribunal on behalfof the workman (2nd respondent) for relief in respect of the alleged
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wrongful termination of his services by the employer-appellant. Theemployer-appellant denied the allegation and pleaded that the 2ndrespondent had vacated his employment under the EmergencyRegulations by participating in a strike and that he had failed tosubmit a valid medical certificate for reinstatement. At the inquiry on04.05.83, the 2nd respondent desired to conduct his case where-upon Mr. Somasunderam, Counsel for the 1st respondent unionwithdrew. Thereafter, the president of the Labour Tribunal decided totreat the application as an individual application. However, noamendment to the caption was effected. On the same day, theevidence of the 2nd respondent was led by Mr. Kadirave! Attorney-at-Law. The inquiry was concluded and the order was reserved.
Although the 1st respondent union appears to have moved out ofthe case on 04.05.83, according to the proceedings dated 17.08.83the 1st respondent union had the case called before the LabourTribunal on a motion to enable the union to settle the dispute. On thatday the parties were present and represented by Counsel. However,as they were unable to reach a settlement, Mr. Kadiravel moved to filewritten submissions of the 1st respondent union. The Tribunal allowedone month for written submissions. On 17.06.83, Mr. Kadiravel filedwritten submissions “on behalf of S. M. Shanmugaratnam".
On 29.09.83, the Labour Tribunal made its order dismissing theapplication, being of the view that the 2nd respondent had vacatedhis employment and that the application to the Tribunal was itself outof time as it had not been filed within 6 months from the date of thealleged termination of services. That order was communicated to the1st respondent union. The Court of Appeal judgment states that the2nd respondent came to know of the order only through the union.
On 07.10.83 the 2nd respondent had given a proxy toMr. Someskadirgaman Attorney-at-Law authorising him to file anappeal in his name against the order of the Labour Tribunal. However,Mr. Someskadirgaman prepared an appeal dated 07.10.83 in thename of the 1st respondent union (who was the applicant on record).This appeal was filed on 27.02.84 together with the said proxy of the2nd respondent. The appeal was registered as the union's appealand the Court of Appeal Registry kept the 1st respondent union
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informed of the steps; and the appellant's brief was collected by anauthorised representative of the 1st respondent union. At the hearingbefore the Court of Appeal Counsel who supported the appealmarked their appearance as Counsel for the appellant union.
However, when the objection as to the time bar was taken againstthe appeal, appellant’s Counsel made the submission that after the2nd respondent had been allowed to conduct his case before theLabour Tribunal treating it as an individual application, the Tribunalhad failed to amend the caption by substituting the 2nd respondentand to communicate its order to the 2nd respondent. Counselconceded that the appeal was outside the statutory time limit namely14 days from the date of the order but submitted that the delayshould be excused in view of the principle that time will run only fromthe date of the receipt of the order by the appellant. United PlantationWorkers Union v. Superintendent Craig Estates The Court ofAppeal accepted this submission and held that the delay can beexcused and added that even if the 2nd respondent was aware of theorder against him as early as 07.10.83 (the date of his proxy) hecould not legally prefer an appeal as the Labour Tribunal had failedto amend the caption substituting him as the applicant.
There is no doubt that a workman is the principal in an applicationmade by a union on his behalf to the Labour Tribunal and is entitledto be substituted in place of the Union and proceed with theapplication. Peiris v. Laksalite Roche Co.w. However, it is not clearwhether in the instant case the 2nd respondent intended to exercisethis right or whether all that he desired was to conduct the casethough a Counsel retained by him. Thus, even after the LabourTribunal reserved its order the 2nd respondent's interests were beinglooked after by the 1st respondent union as is evident from theproceedings of 17.08.83 when the case was called for settlement bythe union and Mr. Kadiravel obtained leave to file written submissionson behalf of the Union. It is true that written submissions weresubsequently filed on behalf of the 2nd respondent. However, thenext step viz. the appeal against the Labour Tribunal order was takenby the 1st respondent union even though the 2nd respondent's proxyshows that an appeal in his name was contemplated.
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This Court has held that a workman, on whose behalf a TradeUnion has filed an application before the Labour Tribunal, mayappeal to the Court of Appeal as appellant (the union not beingdesignated as a party in the appeal) from the order of the Tribunal.The workman is the principal and as such has the choice ofdeciding –
to appeal against the order of the tribunal; and
who is to prosecute his appeal i.e. either himself or by achosen agent.
Somapala v. The Superintendent New Valley Estate, Norwood et all3),In that case the Labour Tribunal held on the application of the unionthat the termination of the workman's services was justified. The uniondid not appeal, instead the workman himself by his agent, anAttorney-at-Law who filed proxy appealed to the Court of Appeal.
In the circumstances, I am unable to agree with the reasoning ofthe Court of Appeal that the 2nd respondent was fettered in pursuingan appeal in time by the failure of the Labour Tribunal to amend thecaption of the case. As was held in Somapala's case, he had the rightto file the appeal himself. The fact that he gave his proxy dated07.10.83 shows that he was aware of his rights. However, theattorney-at-law filed an appeal in the name of the 1st respondentunion without a proxy. The absence of a proxy for the union appealwas not raised at the hearing before us but I have found from theCourt of Appeal record that the 1st respondent union itself had notgiven a proxy. If so, the appeal also may be bad for want ofauthorization. It is possibly in view of this defect that Counsel for theappellant union in the Court below has informed the Court that the2nd respondent (who was not a party to the appeal) will adopt theaverments in the petition of appeal filed by the union and on thatbasis obtained an order to proceed with the appeal as though it wasthe 2nd respondent’s appeal. This is confirmed by the fact that in thisCourt no written submissions were filed on behalf of the 1strespondent union who was also absent and unrepresented.
Both the union and the 2nd respondent (operating from the sameaddress) were obviously aware of the order of the Tribunal by
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07.10.83 and there was no legal fetter against either of them filing theappeal within time. The appeal filed on 27.02.84 is clearly out of timeand the delay cannot be excused. In overruling the preliminaryobjection the Court of Appeal has misdirected itself on the facts andthe law.
For the foregoing reasons, I allow the appeal, and set aside thejudgment of the Court of Appeal. The appeal to the Court of Appeal isdismissed on the ground that it is time barred. No costs.
G. P. S. DE SILVA, C.J. -1 agree.RAMANATHAN, J.-1 agree.
Appeal allowed
