020-NLR-NLR-V-79-1-NELSON-WEERASINGHE-Applicant-Appellant-and-CEYLON-TRANSPORT-BOARD-Respondent.pdf
WeeTaainghe, vs. Ceylon transport Board
141
1976 Present : Deheragoda, J. and Malcolm Perera, J.NELSON WEERASINGHE, Applicant-Appellant
and
CEYLON TRANSPORT BOARD, Respondent-EmployerS. C. 9/74—L. T. 1/6252/73
Labour Tribunal—Application in respect of termination of workman’sservices—Such application dismissed on ground of prescriptionsubject to right of applicant to re-open the same if leuw revised—Fresh application made thereafter—Industrial Disputes (SpecialProvisions) Law No. 53 of 1973—Order made dismissing secondapplication—Effect of section 2(1) of Amending Act.
The applicant-appellant who had been an employee of the CeylonTransport Board made an application to the Labour Tribunal inrespect of the termination of his services. His services had beenterminated on 19th July, 1971, and the application for relief madein 1972. When the matter came up for inquiry the employer raisedthe objection that the application to the Labour Tribunal had beenmade after the prescribed time limit of three months had expiredand accordingly the said application was dismissed subject to theright of the applicant to re-open the same if the law existing atthat time was revised.
Law No. 53 of 1973 amending the Industrial Disputes Act in respectof the time limit within which an application could be made becamelaw on lllh December, 1973, and this law provided, inter alia, thatif an application to a Tribunal has been dismissed on the groundthat it was not made within the prescribed period of three monthssuch order of dismissal should be deemed to be null and void andthe Tribunal was empowered to hear and determine such applica-tion de novo.
The applicant-appellant made a fresh application to the LabourTribunal on 6th May, 1973, in respect of the termination of theservices as aforesaid. This came up for inquiry on 14th December,1973, and on 31st December, 1973, order was made dismissing hisapplication on the basis that the matter had been disposed of inthe earlier case.
Held : That the order dismissing the application of this workmanwas illegal and should be set aside. The order was made after theAmending Law No. 53 of 1973 became law and the Labour Tribunalshould therefore hear and determine the original application whichhad been made by the applicant-appellant as the order dismissingthe same on the ground that it was prescribed was now deemedto be null and void.
Cases referred to :
Ram Banda vs. River Valleys Development Board, 71 N.L.R. 25.
River Valleys Development Board vs. Sheriff, 74 N.L.R. 505.
Ceylon Workers Congress vs. Superintendent, Beragala Estate, 76
N. L. R. 1.
142 MALCOLM PERERA, J.—Weerasinghe vs. Ceylon Transport Board
_^_PPEAL from an order of a Labour Tribunal.
K. Shanmugalingam, for the applicant-appellant.
A. Mahendrarajah, for the respondent-employer.
Cut. adv. vult.
September 10, 1976. Malcolm Perera, J.
The applicant-appellant was employed in the Ceylon TransportBoard as a Depot Inspector. On the 19th July, 1971, his serviceswere terminated. In 1972 the applicant filed an applicationbefore the Labour Tribunal for reinstatement with backwages, which application was numbered as LT 16/1908/72. Whenthis application came up for inquiry the employer took up theposition that the application has been made to the LabourTribunal after the expiration of the prescribed time limit ofthree months. The President of the Tribunal upholding theobjection made order as follows :
“I dismiss the application subject to the right of the
applicant to re-open this application if the present law is
revised.”
On the 6th of May 1973 the appellant made the present appli-cation to the Labour Tribunal complaining of wrongfultermination of his services and praying for reinstatement andback wages. On the 14th of December, 1973, the matter cameup for inquiry. On the 31st of December the learned Presidentmade the following order :
“ When this matter was taken up for inquiry on 14.12.73 Mr.Samson Silva appeared for the applicant. Mr. Sunderalingamappeared for the Respondent.
The applicant in this case has filed this application before thistribunal on 8.5.73. He had pleaded that his services were termi-nated by the respondent on 14.10.71. The instant applicationtherefore has been filed after a lapse of about one and a halfyears.
Counsel for the respondent marked in evidence document Rl,which was a certified copy of an order given by Labour Tribunal(16) in Case No. 16/1908/72 where the application had beendismissed reserving the right to file a fresh application providedthe law was amended with regard to prescription.
Submissions by the proctor for the applicant was that orderin case No. 16/1908/72 was not a final order in that it was quali-fied giving the right to the applicant to re-agitate the matterprovided the law was amended.
MALCOLM PERERA, J.—Weerasinghe vs. Ceylon Transport Board 143
As far as this dispute is concerned, this matter has beendisposed of in case No. 16/1908/72. The law has not beenamended enabling the applicant to re-agitate this matter.
This application is dismissed.”
In the case of Ram Banda vs. The River Valleys DevelopmentBoard, 71 N.L.R. 25, where it was contended on behalf of theappellant that Regulation 16 of the Industrial Disputes Regula-tions 1958 was ultra vires the rule making powers conferredon the Minister, it was held “ that regulation 16 is ultra viresthe rule making powers conferred on the Ministry by sections31A(2), 39 (1) (a), 39(1) (b), 39(1) (f) and 39(1) (h) of theIndustrial Disputes Act inasmuch as it in effect takes away fromthe workman, on the expiry of the stated period of three months,the right given to him by the legislature to apply to a LabourTribunal for relief, and to that extent nullifies or repeals theprincipal enactment. The true nature of the regulation is oneof substantive law and not merely of procedure. Section 39(2)of the Industrial Disputes Act which provides that every regula-tion made by the Minister should be placed before Parliamentfor approval and that, on such approval and publication in theGazette, it shall be “ as valid and effectual as though it wereherein enacted ” does not confer validity on a regulation whichis outside the scope of the enabling powers. The mere passageof such regulation through Parliament does not give it theimprimature of the legislature in such a way as to remove it,through the operation of section 39 (2), from the purview of thecourts. The duty of interpreting the regulation and the parentact in order to see whether the former falls within the scopeallowed by the latter devolves on the courts alone. ”
In the case of the River Valleys Development Board vs. Sheriff,74 N. L. R. 505, the decision in Ram Banda vs. The River ValleysDevelopment Board (supra) was reviewed by a bench of threejudges. The majority decision in that case was “that regulation16 was valid and within the authority given to the Minister byparagraph (h) of section 39(1) of the Industrial Disputes Actto make regulations in respect of all matters necessary for carry-ing out the provisions of this act or giving effect to the principlesthereof.”
In the case of Ceylon Workers Congress vs. SuperintendentBeragala Estate, 76 N. L .R. 1. the Court of Appeal held “ thatRegulation No. 16 is invalid for the reason that it is ultra viresthe rule making powers vested in the Minister. The IndustrialDisputes Act itself does not contain any provision which limitsthe time within which an application may be made under
144 MALCOLM PERER.A, J.—Weemsinghe vs. Ceylon Transport Board
section 31B (1). An unlimited right granted by a statute cannotbe validly limited by a regulation without an express powerconferred for that purpose by the Act.
A regulation which restricts generally a workman’s right toapply for relief, irrespective of the facts and circumstancesapplicable to any particular case, far from giving effect to theprinciples of the Act will go counter to those principles byprecluding a Tribunal from making a just and equitable orderin cases where there may be some delay but such delay isexcusable or justifiable.
The provision in section 39 (2) of the Industrial Disputes Actthat every regulation made by the Minister and approved byParliament shall be as valid and effectual as though it wereenacted in the principal Act cannot preclude the Courts fromexamining the vires of Regulation No. 16. Section 39(2) canapply only to regulations made within the ambit of section 39(1) .The question whether a Regulation is within the ambit of section' 39(1) has to be decided by the Court on an application of anobjective test and not by reference to the intentions of theMinister.”
On the 11th of December, 1973, Act No. 53 of 1973 became law,and section 2(1) reads as follows :
“Where any application made to a Labour Tribunal duringthe relevant period under paragraph (a) or paragraph (b) ofsection 31B(1) of the principal enactment has not been enter-tained by order of such Labour Tribunal on the ground, and onthe ground only that such application was not made within theperiod of three months prescribed by the relevant regulation,such order shall be deemed to have been and to be null andvoid, and the Labour Tribunal is hereby empowered, authorizedand required and shall have jurisdiction to entertain, hear anddetermine such application de novo under the provisions of theprincipal enactment.”
The order in the present application was made on the 31stof December, 1973. This order is illegal. We therefore set asidethe order and allow the appeal. We direct the Labour Tribunalto hear and determine the original Labour Tribunal applicationNo. 16/1 908/72. The Appellant is entitled to the costs of thisappeal which we fix at Rs. 200.
Deheragoda, J.—I agree.
Appeal allowed.