K. PREMASIRI, Appellant, and UNIVERSITY OF SRI LANKA Respondent

059-NLR-NLR-V-78-K.-PREMASIRI-Appellant-and-UNIVERSITY-OF-SRI-LANKA-Respondent.pdf


SHARVANANDA, J.—-Premaairi v. Univera'iy of Sri Lanka
SOS
1976Present : Sharvananda, J., and Ratwatte, J.
K. FREMASIRI, Appellant, and UNIVERSITY OF SRI LANKA,
Respondent
S. C. 127/74—L. T. 1/6852/73
Industrial Disputes (.Special Provisions) Law No. 53 of 1973—Is Section3 prospective or retrospective in its operation—Section 6(3) ofthe Interpretation Ordinance—Sections 2 (1), 2 (2) and 4 of LawNo. 53 of 1973.
The applicant filed his application on 02.03.73 in the LabourTribunal lor relief under Section 31B(1) of the Industrial DisputesAct. He complained that his services were unlawfully terminatedby the employer on 30.06.72. The employer by its answer dated20.11.73 denied the allegation of unlawful termination of servicesmade by the applicant and prayed for a dismissal of the applica-tion.
The matter came up for inquiry on 26.06.74 when a preliminaryobjection was taken on behalf of the employer that the applicationwas out of time by reason of Section 3 of the Industrial Disputes(Special Provisions) Law No. 53 of 1973. The said law came intooperation on 11.12.73. The President of the Labour Tribunalupheld the preliminary objection and dismissed the application.
Held : Section 3 of the Industrial Disputes (Special Provisions)Law No. 53 of 1973 has prospective operation only and does notapply to the application made to the Labour Tribunal on 02.03.73.
A PPEAL from an order of a Labour Tribunal.
D. Q. Palliyaguru for the Applicant-Appellant.
Respondent-Respondent absent and unrepresented.
N. Sinnetamby, Deputy Solicitor-General, with K. C. Kamala-sabaysan, State Counsel, as Amicus Curiae.
Cur. adv. vult.
June 18, 1976. Sharvananda, J.—
The applicant-appellant filed this application on 2.3.73 in theLabour Tribunal for relief under section 31 (B) (1) of the. Indus-trial Disputes Act (Chapter 131) as amended subsequently.
He complained that his services were unlawfully terminated bythe employer-respondent on 30.6.72. The employer-respondent, byits answer dated 20.11.73, denied the allegation of unlawful termi-nation of services made by the applicant and prayed, for adismissal of the applicant’s application,. .
1* A 28988—(77/09)
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SHARVANANDA, J.—Premasiri v. University of Sri Lanka
The matter came up for inquiry on 26.6.74, and on that dateCounsel for the employer-respondent took a preliminary objec-tion that, by virtue of the Industrial Disputes (SpecialProvisions) Law No. 53 of 1973, the application was prescribedand/or out of time and moved that it be dismissed. The Presi-dent of the Labour Tribunal upheld the objection of Counsel forthe respondent and dismissed the application. The applicant hasnow appealed from that order of dismissal to this Court.
Section 3 of the Industrial Disputes (Special Provisions) LawNo- 53 of 1973 amends section 31 (B) of the Industrial DisputesAct (Chap. 131) by the insertion of the following new section : —
“ (7) Every application to a Labour Tribunal under paragraph
or paragraph (b) of sub-section (1) of this sectionin respect of any workman shall be made within a periodof six months from the date of termination of theservices of that workman. ”
The Industrial Disputes (Special Provisions) Law No. 53 of1973 came into operation on 11.12.73.
The question that arises here is whether this amending lawapplies to the application made by the applicant to the LabourTribunal on 2.3.73 long prior to its enactment. If it does not apply,the preliminary objection fails. In the body of the amendingstatute there is no * express provision ’ giving retrospectiveoperation to the amending provision, viz. section 3 of theIndustrial Disputes (Special Provisions; Law No. 53 of 1973.
Section 6(3) of the Interpretation Ordinance (Chap. 2) pro-vides as follows :
“ Wherever any written law repeals either in whole orpart a former written law, such repeal shall not, in theabsence of any expression to that effect, affect or be deemedto have affected—
the past operation of or anything duly done or suffered
under the repealed written law ;
Any action, proceeding, or thing pending or incompleted
when the repealing written law comes into operation,but every such action, proceeding, or thing may becarried on and completed as if there had been no suchrepeal. ”
The. Privy Council, in Shamnugam v. Commissioner for Regis-tration of^ Indian and Pakistani Residents (64 N.I..R. 29), laiddown that what ijvas required by section 6 (3) was express
BELAJRVAIs AINDA, J.—JPretnaairi v. University of Sri Lanka
007
provision but not a specific one. Lord Radcliffe said there: “ Tobe ‘ express provision ’ with regard to something, it is notnecessary that the thing should be specially mentioned ; it issufficient that it is directly covered by the language howeverbroad the language may be which covers it so long as theapplicability arises directly from the language used, and not byinference therefrom. ” Even applying this extended definitionof ‘ express provision ’, I cannot gather any intention to giveretrospective operation to section 3 from the language of theprovisions of the amending law.
Mr. Sinnetamby, Deputy Solicitor-General, who was kindenough to appear as amicus curiae in this appeal and assist thisCourt, drew our attention to section 4 of the amending Law andsubmitted that the proviso to section 4 has to be given effect to,that it amounts to an ‘ express provision ’ within the meaning ofsection 6(3) of the Interpretation Ordinance and hence anintention to give retrospective effect can be spelt out of theproviso.
Section 4 of Law No. 53 of 1973 to this proviso reads as follows :
“ 4. The provisions of this Law shall be in addition to and notin derogation of the provisions of the principal enact-ment or any other written law and accordingly shall beread and construed as one with the principal enactment;
Provided, however, that in the event of any conflict orinconsistency between the provisions of lliis Law andthose of the principal enactment or of any other writtenlaw, the provisions of this Law shall prevail over thoseof the principal enactment or such other written law tothe extent of such conflict or inconsistency. ”
To appreciate the submission of the learned Deputy Solicitor-General it is necessary to go into the circumstances leading to theenactment of the Industrial Disputes (Special Provisions) LawNo. 53 of 1973.
The Industrial Disputes Act (Chap. 131), as amended by Sec-tion 14 of the amending Act No. 62 of 1957, provided for the' establishment of Labour Tribunals and for their jurisdiction.
Section 31 (B) (1) provides for a workman or Trade Union onbehalf of a workman making an application in writing for reliefor redress in respect of the termination of his services and con-nected matters. It is, in the words of the Privy Council in TheUnited Engineering Workers’ Union v. Devanayagam (69 N.L.R.289 at 299), ‘ the gateway through which a workman must pass toget his application before a tribunal ’. It, however, omitted tospecify the time limit within which an application should be
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SHARVAHANDA, J.—Premasiri c. (Jmverstty of Sri Lanka
made. By Regulation 16, purported to have been made undersection 39 of the Industrial Disputes Act, the Minister fixed thetime limit within which applications for relief or redress mustbe made to Labour Tribunals to be “ within three months of thedate of termination of the services of that workman” .
Weeramantry J., in the case of Ram Banda v. River ValleysDevelopment Board (71 N.L.R. 25), held that “Regulation 16 wasultra vires the rule-making powers conferred on the Minister,in as much as it, in effect, took away from the workman, on theexpiry of the stated period of three months, the rignt given tohim by the Legislature to apply to a Labour Tribunal for relief. ”This judgment was delivered on 10.7.68. In the case of RiverValleys Development Board v. Sheriff (74 N.L.R. 5051, a Divisio-nal Bench of the Supreme Court, by a majority judgment dated24.11.71, over-ruled Ram Banda v. River Valleys DevelopmentBoard and held that Regulation 16 was valid and intra vires andthat it validly regulated the time within which applications toLabour Tribunals should be made. The Court of Appeal,by its judgment dated 8.2.73 in Ceylon Workers Congressv. Superintendent, Beragala Estate, (76 N.L.R. 1), over-ruledRiver Valleys Development Board v. Sheriff and held that Regu-lation 16 was invalid for the reason that it was ultra vires therule-making powers vested in the Minister and restored theruling of Weeramantry J., in Ram Banda v. River Valleys Deve-lopment Board. It was after the judgment of the Court of Appealgiven on 8.2.73 that the Legislature enacted the IndustrialDisputes (Special Provisions) Law No. 53 of 1973 which cameinto operation on 11.12.73. This Law amended the IndustrialDisputes Act to provide that an application to a Labour Tribunalshould be made within a period of six months from the date oftermination of the services of a workman.
According to the ruling of the Supreme Court in 71 N.L.R. 25,as affirmed by the Court of Appeal in 76 N.L.R. 1, there is noprovision in the Industrial Disputes Act stipulating the time limitwithin which an application to a Labour Tribunal should bemade. The Industrial Disputes (Special Provisions) Law No. 53of 1973 fills this omission. The appellant filed his application inthe Labour Tribunal on 2.3.73 when, according to the view of theCourt of Appeal expressed in its judgment dated 8.2.73, theLegislature had not fixed any time limit for the making of suchapplications.
In my view, there is no conflict or inconsistency between theprovisions of the Industrial Disputes (Special Provisions) LawNo. 53 of 1973 and those of the Industrial Disputes Act (Chap. 131)
SHARVANANDA, J.—Premasiri v. University of Sri Lnnka
5Q%
as amended subsequently, and hence no necessity arises for theapplication of the proviso to section 4 of the Industrial Disputes(Special Provisions) Law. For any conflict or inconsistency toarise, there should be competing provisions. That is not the casehere. Here a lacuna, as demonstrated by the judgment of theCourt of Appeal, has been sought to be filled up prospectively.
Further, the provisions of sections 2(1) and 2(2) of the Indus-trial D.sputes (Special Provisions) Law reinforce the submissionthat the Legislature never could have intended to apply section 3of the Industrial Disputes (Special Provisions) Law to pendingcases. Sections 2(1) and 2(2) of the Industrial Disputes (SpecialProvisions) Law seek to give relief to applicants whose applica-tions had not been entertained or been dismissed or set aside byorder of a Labour Tribunal on the ground that such applicationwas not made within the three months prescribed by the afore-said Regulation 16, and the Labour Tribunal was vested withjurisdiction to hear and determine such applications afresh. Ifthe Legislature intended, by sections 2(1) and 2(2), to revivifyapplications which had, at the time of enactment of the IndustrialDisputes (Special Provisions) Law, been dismissed on theground of being outside the said time limit, there is no palpablereason to presume that the Legislature intended that the LabourTribunal should reject applications on the ground of the time barwhere proceedings were still pending in relation to them on11.12.73, namely, the date on which the Industrial Disputes(Special Provisions) Law came into operation. The intention ofthe Legislature is manifest in that applications made to LabourTribunals prior to the coming into operation of the Special Pro-visions Law should not be dismissed or rejected on the groundof the time limit fixed by the aforesaid Regulation 16 and thatthe ruling given by the Court of Appeal in 76 N.L.R. 1 shouldgovern all those cases and that the amending section should haveprospective operation only.
The present question was considered by the Honourable theChief Justice and Vythjalingam J. in S.C. 135/74, LT. 1/6274/73—S.C. Min. of 17.3.76. I agree with their judgment and am of theview that section 3 of the Industrial Disputes (Special Provisions)Law does not apply to the application made by the applicant-appellant and that the President had erred in upholding theobjection raised by Counsel for the employer-respondent.
I allow the appeal with costs fixed at Rs. 210 and send theproceedings back for inquiry de novo on an early date.
Ratwatte J.—I agree.
Appeal allowed.
A 28838 (77/08)