028-SLLR-SLLR-2005-V-3-JAYAWARDENE-vs.-PUTTALAM-CEMENT-COMPANY-LIMITED.pdf
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JAYAWARDENEVSPUTTALAM CEMENT COMPANY LIMITEDCOURT OF APPEALSOMAWANSA J. (P/CA) ANDWIMALACHANDRA, J.
CA (PHC) APN 265/2004REV. H. C. CHILAW HCA 22/2.
LABOUR TRIBUNAL COLOMBO 21/1251/94.MARCH 19. 2005.
Constitution, Article 138-Article 154 P Article 154 P(3)(b)-13th Amendment -Order made by Provincial High Court in an industrial dispute – Does revisionlie to the Court of Appeal? – High Court of the Provinces (Special Provisions)Act, No. 19 of 1990, section 9 (a). – Specific remedy provided to canvass thegrievance before the Supreme Court – Industrial Disputes Act – Section531 DD( 1 )-Canvass.
HELD:
(1) The Law provides for a specific remedy for any party who is aggrieved byan order of the Provincial High Court. The appellant – petitioner shouldhave appealed with the leave of the High Court or the Supreme Court firsthad and obtained, to the Supreme Court.
Per Somawansa, J. (P/CA):
“One cannot come to this court for redress when the relief lies elsewhere andthis court cannot by implication, surmise or conjecture assert itself withjurisdiction that has not been granted in law".
APPLICATION in revision from an order from the High Court of Chilaw.
Chintaka Siriwansa for appellant – respondent – petitioner.
Nayana Abeysinghe for respondent – appellant – respondent.
Cur. adv. vult.
CA
Jayawardene vs Puttalam-Cement
Company Limited (Andrew Somawansa, J. (P/CA))
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August 05, 2005.
ANDREW SOMAWANSA, J. (P/CA)At the hearing of this application counsel for the respondent-appellant -respondent took.up a preliminary objection that this Court lacks jurisdictionto entertain the instant application as the right of appeal from an ordermade by a Provincial High Court lies only to the Supreme Court as stipulatedby the Constitution. On this preliminary issue of law both parties agreed totender written submissions and both parties have tendered their writtensubmissions.
It is contended by counsel for the applicant – respondent – petitionerthat a medical certificate has been tendered to this Court to establish thefact that the applicant respondent – petitioner had met with an accidentand was bed ridden for a long period of time and that when a situation ofsuch a nature arises, the Constitution is silent as to the recourse availableto an injured party who was prevented from adverting to the remediesprovided to him by law, that in such a situation of the said nature this Courtcould exercise its extraordinary revisionary jurisdiction to grant redress toan aggrieved party. He further submits that the jurisdiction vested in thisCourt under Article 138 of the Constitution has not placed any restrictionswhatsoever in such circumstances. The 13th Amendment which broughtin the Provincial High Courts have granted the Supreme Court the finalappellate power against the order made in the Provincial High Courts inan industrial dispute matter but has not taken away the revisionaryjurisdiction specifically. Thus he submits that in the absence of any specificprovisions taking away the revisionary jurisdiction of the Appeal Courtthis Court is vested with the jurisdiction to hear, determine and grantredress to an aggrieved party like in the instant case. I am not at all inagreement with the aforesaid submission for the simple reason that the13th Amendment to the Constitution which grants appellate powersagainst an order made in a High Court in an industrial dispute make noprovisions for granting appellate jurisdiction either by away of appeal orrevision to this Court. I would say the preliminary objection raised by therespondent – applicant – respondent is sustainable and far reaching forone cannot come to this Court for redress when the relief lies elsewhere
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and this Court cannot by implication, surmise or by conjecture assertitself with jurisdiction that has not been granted in law. Accordingly I wouldreject the proposition of counsel for the applicant-respondent – petitioner.
At this point, it would be useful to consider some of the provisions ofAct, No. 32 of 1990 and Section 9(a) of Act, No. 19 of 1990 having a directbearing on the issue at hand.
Section 31 DD(1) of the Industrial Disputes (Amendment) Act, No. 32of 1990 reads as follows:
“(1) Any workman, trade union, or employer who is aggrieved by anyfinal order of a High Court established under Article 145P of the Constitution,in the exercise of the appellate jurisdiction vested in it by law or in theexercise of its revisionary jurisdiction vested in it by law, in relation to anorder of a labour tribunal, may appeal therefrom to the Supreme Court withthe leave of the High Court or the Supreme Court first had and obtained."
Section 9(1) of the High Court of the Provinces (Special Provisions)Act, No. 19 of 1990 reads as follows :
9(a) “a final order, judgment, decree or sentence of a High Courtestablished by Article 154P of the Constitution in the exercise of theappellate jurisdiction vested in it by paragraph (3) (b) of Article 154 P ofthe Constitution or section 3 of this Act or any other law, in any matteror proceeding whether civil or criminal which involves a substantialquestion of law, may appeal therefrom to the Supreme Court if theHigh Court grants leave to appeal to the Supreme Court ex mero rrtotuor at the instance of any aggrieved party to such matter or proceedings;
Provided that the Supreme Court may, in its discretion grant specialleave to appeal to the Supreme Court, from any final or interlocutory order,judgment, decree or sentence made by such High Court, in the exerciseof the appellate jurisdiction vested in it by paragraph (3) (b) of Article 154Pof the Constitution or section 3 of this Act, or any law where such HighCourt has refused to grant leave to appeal to the Supreme Court, or where
CA
Jayawardene vs Puttalam Cement
Company Limited (Andrew Somawansa, J. (P/CA))
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in the opinion of the Supreme Court, the case or matter is fit for review bythe Supreme Court;
Provided further that the Supreme Court shall grant leave to appeal inevery matter or proceeding in which it is satisfied that the question to bedecided is of public or general importance.”
Thus it is to be noted that law provides for a specific remedy for anyparty who is aggrieved by an order of the Provincial High Court and theapplicant – respondent petitioner could have appealed against the orderof the Provincial High Court with the leave of the High Court or the SupremeCourt first had and obtained. It is to be seen that the applicant – respondent-petitioner did exercise an option available to him by law and sought leaveto appeal from the Provincial High Court which was refused. When leaveto appeal is refused by the Provincial High Court there is a specific courseof action stipulated in law to such a person in terms of Section 9 (a) of theHigh Court of the Provinces (Special Provisions) Act, No. 19 of 1990 asstated above by way of seeking special leave to appeal to the SupremeCourt.
Thus it could be seen that there was a specific remedy provided by lawfor the applicant – respondent – petitioner to canvass his grievance beforethe Supreme Court. This was the correct and proper legal remedy.However instead of resorting to the legal remedy that was available to himthe applicant – respondent – petitioner has filed a revision application inthis Court.
The right of revision is a discretionary remedy which is allowed by Courtonly in exceptional circumstances and the right of revision is not availablespecially when there is an alternative remedy available in law which remedythe applicant-respondent-petitioner failed to have recourse to.
' It is also well settled law that the discretionary remedies such as writsand revision are not available when there is an undue delay in invoking thejurisdiction of Court. In the instant application the delay is as much as 10months. Furthermore, the reasons adduced for the inordinate delay in
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invoking the revisionary jurisdiction is ill health of the applicant-respondent-petitioner. However the medical certificate submitted by him dated 15.
marked P5 reveals that it was issued on 15. 06. 2004 and theayurvedic physician has recommended leave for two months from 03.05.2004. The learned High Court Judge had delivered his order on 30. 10.2003 and thereafter the leave to appeal application to the High Court hadbeen refused on 29.04.2004. The instant revision application was tenderedon 13. 09. 2004.
In paragraph 8 of the petition the applicant – respondent petitioner statesthat there is a delay in filing this application since he met with an accidentand was bedridden for several months and due to the ill health he wasunable to instruct an Attorney – at – Law to proceed with the revisionapplication immediately, in proof of which the applicant respondent-petitionerhas annexed the medical certificate marked P5. As per the medical certificatedated 15. 06. 2004 leave has been recommended for 2 months from03.05. 2004. The learned High Court judge’s order is dated 30.10. 2003.The medical certificate does not indicate that there was anything to preventthe applicant respondent-petitioner from seeking leave to appeal to theSupreme Court. No explanation was given as to why he did not seek leaveto appeal to the Supreme Court in terms of section 9 (a) of the High Courtof the Provinces (Special Provisions) Act, No. 19 of 1990. In any event, noexceptional circumstances have been pleaded or shown for this Court toinvoke its revisionary jurisdiction. Be that as it may my considered view isthat the remedy lies elsewhere and if we were to allow this application wewould be opening the flood gates for parties to come to this Courtcircumventing the remedies stipulated by law.
For the above reasons, I have no hesitation in dismissing this applicationwith costs fixed at Rs. 20,000/-.
WIMALACHANDRA, J .-I agree.
Application dismissed.