037-SLLR-SLLR-2002-3-PIYADASA-v.-SRI-JAYAWARDENAPURA-MULTI-PURPOSE-CO-OPERATIVE-SOCIETY-LTD..pdf
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[2002] 3 Sri L.R.
PIYADASA
v.SRI JAYAWARDENAPURA MULTI-PURPOSECO-OPERATIVE SOCIETY LTD.
COURT OF APPEALJAYAS1NGHE, J. (P/CA) ANDEDIRISURIYA, J.
CA NO. 1389/98SEPTEMBER 21. 2001OCTOBER 30, 2001,
JUNE 25, 2002 ANDJULY 02, 2002
Co-operative Societies Law, No. 5 of 1972, sections 58, 58 (4) and (6) and 59(1) – Arbitration – Appeal – Interpretation Ordinance, section 22 (a) (b) – Shouldthe petitioner be heard? – °Written and oral hearing" – Is written hearing excludedby section 59? – Could the award be enforced against the widow of a party tothe cBspute? – Substitution in the Court of Appeal.
Held:
The matters urged on his behalf before the Arbitrator were considered bythe Commissioner in the determination of the appeal.
The additional representation the petitioner claims entitlement to in respectof the appeal to the Commissioner has been expressly excluded by thelegislature by section 58 (4). There is no denial of a right of hearing. Thepetitioner is not entitled to a hearing in terms of section 58 (4).
The party from whom such sum is due has been classified as a defaulter.The widow of the petitioner cannot be said to be a defaulter in terms ofsection 59. The money that is due can only be recovered in terms ofsection 59 from the defaulter and from no one else. Upon the death ofthe original petitioner any property that the petitioner had and possesseddevolved on his wife and the heirs.
APPLICATION for a writ of certiorari.
CA
Piyadasa v. Sri Jayawardenapura Multi-Purpose
Co-operative Society Ltd. (Jayasinghe, J.)
295
Case referred to :
1. Kalutara Distilleries Co-operative Society v. Arsacularatne – 71 NLR 325.Dr. Jayampathy Wickremaratne, PC, with Pubudu Wickremaratne for petitioner.Chandra Gamage for 1st and 2nd respondents.
Viran Corea, State Counsel for 3rd respondent.
Cur. adv. vult.
October 25, 2002JAYASINGHE, J. (P/CA)
The petitioner was the Manager of a Petrol Station owned by the 1strespondent from 02. 01.1995 to 02. 01. 1996. By letter P1 the societydemanded a sum of Rs. 78,361.20, which was allegedly the valueof the shortage of stocks between the period 02. 01. 1995 to31. 12. 1995. The petitioner refused to pay. The 2nd respondent wasthen appointed as an Arbitrator under the Co-operative Societies Law,No. 5 of 1972 as amended to inquire into the dispute. The 2ndrespondent after inquiry made an award in favour of the 1st respondentholding that a sum of Rs. 49,870.77 was due to the 1st respondent.Being aggrieved by the award the petitioner appealed to the 3rdrespondent.
The 3rd respondent refused the petitioner's appeal by documentP5. The petitioner complained that the petitioner was not afforded anopportunity to place his case before the 3rd respondent either orallyor in writing. The present application is to set aside P5.
The main complaint of the petitioner is that he has not been heard.However, the respondent society took up the position that the
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petitioner is not entitled to a hearing in terms of section 58 (4)of the Co-operative Societies Act which provides that –
"No party to an appeal made to the Registrar under subsection 3 20shall be entitled either by himself or by any representative to appearbefore or be heard by the Registrar on such appeal."
Ms. Wickremaratne submitted that the words appear "before andbe heard" refer only to an oral hearing and therefore does not excludea written hearing. It was submitted that the petitioner should havebeen given an opportunity to explain his case to the Appellate Authorityand also to answer the respondent's case at least in writing. Thata written hearing is not excluded by section 58.
Mr. Gamage for the 1st respondent submitted that the Co-operativeSocieties Law, No. 5 of 1972 does not provide for an appeal to Court aoagainst an award of the Arbitrator or the Commissioner in terms ofsection 58 (6); that the remedy that is available is administrativereview; that the Arbitrator's award is made after complete andcomprehensive hearing where all parties are present and subject tocross-examination. He submitted that this procedure is set forth toconfined society litigation to the Co-operative Department under thesupervision of the Commissioner in order to facilitate the operationsof several societies throughout the country. He relied on KalutaraDistilleries Co-operative Society v. Arsacularatnem where Wijayatilake,
J. referred to the Co-operative Societies Law as special legislation 40engaged in trade and industry and observed that Courts need notinterfere. Mr. Gamage further submitted that in view of the restrictionsplaced on the petitioner by operation of section 58 (6) the aggrievedparty could seek relief only if such party could satisfy that he comeswithin proviso (a) or (b) of section 22 of the Interpretation Ordinance.
CA
Piyadasa v. Sri Jayawardenapura Multi-Purpose
Co-operative Society Ltd. (Jayasinghe, J.)
297
Learned State Counsel submitted that the petitioner is unable toavail himself of the proviso (a) or (b) of section 22 of the InterpretationOrdinance in that the petitioner has not been denied the right to beheard. That the matters urged on his behalf before the Arbitrator wereconsidered by the Commissioner in the determination of the appeal. »The additional representation the petitioner claims entitlement to inrespect of the appeal to the Commissioner has been expressly excludedby the Legislature by section 58 (4).
We have considered the submissions of counsel. We are of theview that there had been no denial of a right of hearing. Writ ofcertiorari therefore cannot issue.
Even though we have not been invited to examine the recoveryprocess, we feel obliged to consider this aspect in view of the situationthat has arisen since the petitioner came before this Court.
While the petitioner's application before this Court was pending, 60the petitioner died on 02. 04. 2000 and the wife of the petitioner soughtto substitute herself as the substituted petitioner on the basis that afterthe original petitioner was dismissed from service by the 1st respondent,the petitioner made an application No. 8/4130/98 to the Labour Tribunalagainst the termination. The substitution of the wife of the petitionerwas necessitated by the fact that the widow of the original petitionerclaimed that in the event of the petitioner succeeding in the LabourTribunal any sum awarded to the petitioner as compensation was liableto be appropriated by the 1st respondent to satisfy the award madeby the Arbitrator and therefore for that reason sought substitution to toprosecute the application before this Court.
During the hearing we inquired from the counsel for the petitionerwhether an award under section 58 could be enforced against thewidow of a party to the dispute as in the present application.
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The learned counsel adverted to section 59 (1) of the Co-operativeSocieties Law. Section 59 (1) provides for the recovery of the awardfrom the "defaulter".
We have considered the application of section 59 (1) carefully. Wefind that the party from whom such sum is due has been classifiedas a defaulter. Clearly, the widow of the petitioner cannot be said soto be a defaulter in terms of section 59. The money that is due canonly be recovered in terms of section 59 from the defaulter and fromno one else. Upon the death of the original petitioner any propertythat the petitioner held and possessed devolved on his wife and theheirs. Therefore, no order can be made against the heirs for seizureof such property. The award, if any, made by the Labour Tribunalcannot be the money the respondent could recover in satisfaction ofthe award, since that money does not belong to the deceasedpetitioner.
EDIRISURIYA, J. – I agree.
Appeal dismissed.