120-NLR-NLR-V-74-RIVER-VALLEYS-DEVELOPMENT-BOARD-Appellant-and-A.-M.-SHERIFF-Respondent.pdf
1971
H. N. G. FERX.VXDO, C.-T.—Biccr Valleys Development Board, v. Sheriff £Ob
Present : H. N. G. Fernando, C.J., Sirimane, J., andSamerawickrame, J.RIVER VALLEYS DEVELOPiMENT BOARD, Appellant, ami
A. M. SHERIFF, RespondentS. G. 178jG0—Labour Tribunal Case No. S/343/69
Industrial Disputes Act (Cap. 131)—Sections 31A, 31B, 39 (l)(a) (b)(JJ) (/i), 39 (2)—Termination of services of a uzorkman by his employer—Application to LabourTribunal for relief or redress—Time limit of three months for making suchapplication—Validity of Bcgulation 1G of Industrial Disputes Begidations,195S—Bute making power of minister.
Regulation 1G of tbo Industrial Disputes Regulations, 195S, which werepublished in the Gazette of 2nd March 1959, provides that “ every applicationunder paragraph (n) or {b) of section 31B (1) of tho Industrial Disputes Act inrespect of any workman shall be mado within three months of tho date oftermination of the services of that workman
TfeW.by Fernando, C.J., and Shumane, J. (Samerawickrame, J., dissenting),that Regulation ]G was valid and within tho authority given to the Minister byparagraph (h) of section 39 (1) of tho Industrial Disputes Act to make regulations“ in respect of all matters necessary for carrying out tho provisions of thisAct or giving effect to tho principles thereof ”.
Bam Banda v. Bivcr Valleys Development Board (71 N. L. R. 25) overruled.
.A.PPEAL from an order of a Labour Tribunal. This appeal wasreferred to a Bench of three Judges for tho purpose of a review of tbodecision in Pam Banda v. River Valleys Development Board (71 N.L.R. 25).
II. W. Jayeicardene, Q.C., with Paul Perera and Miss U. J. Kurukula-suriya, for the respondent.-applcllant
M. S. M. Nazcern, with 31. Sivananlhan and M. A. M. Bakir, for theapplicant-respondent.
S. Sivarasa, Crown Counsel, as amicus curiae.
Cur. adv. vuli.
November 24, 1971. H. N. G. Fernando, C.J.—
This appeal was set down for hearing before a Bench of three Judgesfor tho purpose of a roviow of the decision in Pam Banda v. Piver ValleysDevelopment Board which held to bo ultra vires regulation 16 of thoIndustrial Disputes Regulations, 1958. That regulation provides that anapplication by a workman or a trade union on his behalf to a LabourTribunal under s. 31B of tJio Industrial Disputes Act, shall bo madowithin three months of tbo date of termination of tho services of theworkman.
1 (19GS) 71 N. L. B. 25.
macrv—221*—K 10243 (2/72)
606 H. N. G. FERNANDO, C.J.—River Valleys Development Board v. Sheriff
It is necessar}- now to summarize the reasons for that decision :—
A regulation prescribing a timo limit for the making of applicationsto a Labour Tribunal is not within the scope of the power conferred ins. 31A to prescribe “ the manner ” in winch such applications may bemade.
Paragraphs (a) and (b) of s. 39 (1) provide only that the Ministermay make regulations for matters which are required by the Act to boprescribed or provided for by regulations, and the imposition of thistime limit is not such a matter.
A regulation restricting the timo within which such an applicationmust be made is a provision, not of procedure, but of substantive law,and is therefore not witliin the authority conferred by paragraph iff)of s. 39 (1).
This regulation is not within the authority conferred in the Ministerby paragraph (h) of s. 39 (1) to make regulations “ in respect of all mattersnecessary for carrying out the provisions of this Act or giving effectto the principles thereof”.
I see no reason to disagree with the grounds which have beensummarized at (1), (2) and (3) above, and I propose to re-consider only _tho fourth of these grounds.
In the consideration of the effect of Regulation 16, the judgment inEarn Banda’s case contains the following general observations :—
“ On tho other hand the imposition of a timo bar upon the workman’sright of access to a tribunal operates so as to strike at the foundationof the statutory benefits accruing to him from that portion of theIndustrial Disputes Act relating to Labour Tribunals. In otherwords, unlike the litigant barred by limitation from an ordinarycourt of law, ho retains not even the empty shell of thoso specialrights which the Legislature has given him but sees them vanish awayin their totality the moment the time bar springs into effect. Leftwith no access to the special tribunal created for him, he is dcstitutoof all benefits conferred on him by the statute and is thrown backsimply upon the common law contract as administered by the commonlaw—that self-same subjection to the letter of his convenant whichthese legislative provisions wore designed to mitigate and soften. ”
These observations of Wcernmantiy J. mean that a right of accessto a Labour Tribunal, if limited in regard to the time of its exercise, isvirtually no right at all; indeed in his opinion the provision for a timelimit constitutes a ‘‘total deprivation” of the right. But it is notunusual that rights conferred by statute arc thus limited, particularlyrights of redress against alleged invasions of common law rights.Familiar examples of this exist in Customs and Tax Laws :if goods
are seiz.cd by Customs Officers from tho possession of their true owner,
' H. N. G. FER^AXDO, C.J.—River Volleys Development Board v. Sheriff 507
the owner has only one month in which to pursue the only remedy whichtjio Statute allows him ; if a totally incorrect assessment for incometax is made, the assessec has only one month in which to object, or else aCourt will be bound to set in motion its process of execution for therecovery of the tax. If s. 3IB of the Industrial Disputes Act had itselfspecified that an application to a Labour Tribunal must be madewithin three months of the termination of a workman’s services, thecriticism that the right conferred by the Section is virtually ho right atall would surely be unreasonable. How then is it reasonable to saythat a Regulation' which imposes the same time limit constitutesa “ total deprivation ” of the right of access ?
With much respect, I must differ from the initial approach to thecontext of Regulation. 16 which was made in Ram Banda’s case, andfrom the consequent opinion that tire Regulation constitutes a “ totaldeprivation ” of the new remedy which the Act allows.
In considering the validity of Regulation 10, it is useful to have regardto the circumstances in which the legislation relating to Labour Tribunalscame into operation.
Provision relating to Labour Tribunals was introduced into theprincipal Act by the amending Act Ho. 62 of 1957, which inserted anew Part IVA containing Sections 31A, 31B, 31C and 31D.
The amending Act received the assent of the Governor-General on30th December 1957. Thereafter the regulations under the title of“Industrial Disputes Regulations, 1958 ” were made by the Minister.But the regulations did not then take effect. They were, in terras ofsub-section (2) of s. 39, approved by the House of Representatives on20th November 1958 and by the Senate, and they1' took effect only' afternotification of such approval was published in the Gazette of 2nd March1959.
Even at this stage, despite the enactment of Part IVA and of theRegulations, there was yet not in existence any Labour Tribunal, andthe first of theso Tribunals was established by the Minister under s. 31Aof the Act only in May 1959. In the result, when hi and after May 1959workmen were first able to exercise their right of access to LabourTribunals, the composite schemo contained in Part IVA and in theRegulations included the provision in Regulation 16 limiting tho timewithin which applications may be made to a Labour Tribunal. Thescheme, be it noted, could not have operated without the Regulations,for numerous matters had to be provided for in tho Regulations beforethe right of acp'oss could be effectively exercised and before the Tribunalscould p'orform their functions. Thus, from the moment when tho schemebecame effective in law, it contained this limitation as to the time forIrcceas to Labour Tribunals. Having regard to these circumstances,cohtb’ming thb doming into effect of tho legislation and the subsidiary
COS H. N. G. FERNANDO, C. J-—River Valleys Development Board v. Sheriff
legislation concerning Labour Tribunals, I am unable to agree thatworkmen had at any stago enjoyed any right which was later taken awayby Regulation 16. This is another reason why I do not agree that therewas any “ deprivation ”.
Weeramantry J. states that “ it is doubtful that the imposition of sucha rule (that is tho limitation of time) is a sine qua non for carrying outtho provisions of the Act or giving effect to its principles As to thismatter, it is fairly clear from the fact that the Minister made Regulation16 that he himself considered it necessary to do so for the purposesspeciSed in paragraph (h) of s. 39 (1). There may of course be instanceswhere it is manifest to a Court that some provision hi a regulation isquite unconnected with the objects and purposes of an Act; but if aCourt is only doubtful whether a Regulation is necessary for tho purposesspecified in paragraph (/i), then a decision that it is ultra vires may notrest on safe grounds. In fact the judgment docs refer to the considerationthat stale claims must be discouraged. There is the further considerationthat the imposition of a time limit by Regulation 16 may well be salutary,in that employers can order their affairs with the knowledge that claimsby former workmen for compensation or re-instatement cannot bo setup after the lapse of a specified period. It has to be borno in mindthat while the immediate purpose of the Industrial Disputes Act is tosecure the settlement of industrial disputes, the ultimate purpose is topromote the efficient administration of industrial undertakings.
Tho new' Sections of the Act allow ed to w orkmen the hitherto unknownrelief of re-instatement, or of compensation in lieu thereof. The Ministermay well have considered that prejudice and disorganisation w ill ensueif reliof of this kind is granted long after a workman’s services areterminated, and that a time limit for applications was necessary forgiving effect to tho principles upon which tho right to such relief canfairly be based.
In the case of Kruse v. Johnson 1, a Divisional Court of seven Judgeswas specially convened to consider a by-law passed by a County Council"restricting street noises in a residential area. Tho Court held (withone dissent) that tho by-law was valid. Lord Russell of Killowen C.J.made the following observations :—
“ When the court is called upon to consider the by-laws of publicrepresentative bodies clothed with the ample authorit3' which I havedescribed, and exercising that authority accompanied by the checksand safeguards which have been mentioned, I think tho considerationof such by-laws ought to be approached from a different standpoint.They ought to bo supported if possible. They ought to be, as hasbeen said, ‘ benevolently ’ interpreted, and credit ought to bo givento those who have to administer them that they will bo reasonablyadministered. This involves the introduction of no new canon ofconstruction. But, further, looking to the character of the body
(1S9S} 2 Q. B. 91.
H. -NT. G. FERXAKDO, C. J.—Biver Valleys Development Board v. Sheriff 500
legislating under the delegated authority of Parliament, to theBubject-matter of such legislation, and to the nature and extent of theauthority given t-o deal with matters which concern them, and inthe manner which to them shall seem meet, I think courts of justiceought to bo slow to condemn as invalid any by-law, so made undersuch conditions, on the ground of supposed unreasonableness.Notwithstanding what Cockburn C.J. said in Bailey v. Williamson,an analogous case, I do not mean to say that there may not becases in which it would be the duty of the Court to condemn by-laws,made under such authority as these were made, as invalid becauseunreasonable. But uJireasonable in what sense ? If, for instance,they were found to be partial and unequal in their operation as betweendifferent classes ; if they were manifestly unjust; if they disclosedbad faith ; if they involved such oppressive or gratuitous interferencewith the rights of those subject to them as could find no justificationin the minds of reasonable men, the court might well say : ' Parliamentnever intended to give authority to make such rules ; they areunreasonable and ultra vires'. But it is in this sense, and in thissense only, as I conceive, that the question of unreasonableness canproperly be regarded. A by-law is not unreasonable merely because aparticular Judge may think that it goes further than is prudent ornecessary or convenient, or because it is not accompanied by aqualification or an exception which some Judges may think oughtto be there. ”
These observations were cited with approval b}' Scott L. J. in Sparks v.
Edward Ash, Ltd.1 who also made the following comment:—
“ If it is the duty of the courts to recognise and trust the discretionof local authorities, ;nuch more must it be so in the case of a ministerdirectly responsible to Parliament and ent rusted by the constitutionwith tiie function of administering the department to which the relevantfield of national activity is remitted. Over and above these groundsfor trusting t-o that minister’s constitutional discretion is the furtherconsideration that these regulations have to be laid on the table ofboth Houses. "
The Industrial Disputes Regulations, tho validity of one of which hasbeen challenged, were made by a Minister directly responsible toParliament; under sub-section (2) of s. 39 they were not merely 1 aidon the tablo of both Houses, but wero in fact approved expressly by avote of both Houses of our Parliament. Thus in this case we are invitedto hold that Regulation 16 was not necessary for the purpose of carryingout the provisions of the principal Act, despite the fact that Parliament,which had provided for the establishment of Labour Tribunals, hadapproved this regulation and thus permitted it to have legal effect.
In the language of Lord Russell, I am satisfied that “ credit ought to begiven ” to tho Minister who made this Regulation and to Parliament
1”K 102*3 (2/72)
(1943) 1 K. B. 223.
610SAMERAWICK.RAAIE, J.—River Valleys Development Board v. Sheriff
which approve it. that the Regulation was made and approved becauseit was necessary – jr the purposes set out in paragraph(A) of Section 39 (1).For this reason the validity of the regulation “ ought to bo supported ifpossible ” and I feel bound accordingly to uphold its validity as being“ necessary for carrying out the provisions of this Act
True it is that it is tho function of the Court, and not of Parliament,to interpret laws. Bub where, as in this case, Parliament has itselfapproved a Regulation, that is a matter which has to be taken intoaccount in considering whether Parliament intended that such aRegulation may bo " necessary for carrying out the provisions of thoAct or giving effect to its principles
Having regard to tho conclusion which I have reached, there is nonecessity in this case to review the correctness of the opinion expressedin the judgment in Ram Banda’s case that “ it is within tho competenceof tho Court to subject regulations to tho ultra vires test ”, despite thoprovisions of sub-section (2) of s. 39 of tho Act, and despite the factthat these regulations wore approved by Parliament. I restrict myselfto just one observation : while there have been criticisms of tho dicta ofLord Herschell in Lockwood's case, there has apparently not been duringthe succeeding 75 years any instance in which an English Court hasruled to bo ultra vires any7 subsidiary legislation made by7 a Ministerwhich has been duly laid before Parliament, or which (as in the instantcase) has been actually approved by- Parliament.
In the result I would set aside the order of the President of tho LabourTribunal dated 27th October 1969 and dismiss tho application made tothe Tribunal by the applicant-respondent.
SiBDiAJfE, J.—I agree.
Sastebawickrame, J.—
In this matter I have the misfortune to disagree with tho view takenby7 My Lord, tho Chief Justice and Sirimane, J. As the appeal was setdown for hearing before us to review' a decision of this Court and istherefore of some importance I proposo to stato tho grounds of mydissent.
Tho matter for consideration was whether tho decision in Ram Bandav. River Valleys Development Board 1 correctly7 held Regulation 16 oftho Industrial Disputes Regulations, 195S, to be ultra vires. It is to benoted that a workman does not have a pre-existing right by7 virtue ofsome other rule of law which he seeks to cnforco by7 bis application to aLabour Tribunal. Ho differs in this respect from a party to anaction who seeks to cnforco a right to which ho claims ho is
(1968) 71 N. L. B 25.
S A M E RAWICKRAME, J.—Iiivcr Valleys Development Board v. Sheriff 511
already entitled. Tlie relief or redress obtained from a labour tribunalis not refcrablo to a prior legal right but is granted by tho order andcomes into oxistenco on tho making of the order. The order and the orderalono is in law tho fons cl origo of tho entitlement to relief or redressawarded by it. Beforo the relief is spelled out in tho order no legalright to it exists. Accordingly in point of law tho right which the work-man has is the right to obtain an order which is just and equitable on anapplication to a labour tribunal and in tho circumstances that rightapjjears to me to be in tho nature of a substantivo right.
By its very naturo that right is not wider than tho right or power ofthe workman to make an application to tho labour tribunal. Anylimitation of time within which such an application may bo made willoperate to restrict that right. The Act contains no express provisionsetting a time limit for an application. Tho requirement that the ordormade shall bo just and equitable will however indirectly havo the effectof precluding tho grant of relief on stale applications. Only in anexceptional case, for example, will it be just and equitable to orderreinstatement where there has been delay in making tho application.It is a general rulo that whero tho question of tho grant of equitablerelief is in question, laches may bar tho grant of relief. It is not delayby itself but delay which having regard to the circumstances of thoparticular matter renders tho grant of relief harsh or unfair that-constitutes laches. Tho position under and in terms of the provisionsof tho Act is that delay should be considered with reference to the factsof a particular caso and would operate to defeat an application only incircumstances where tho lapse of time has rendered tho grant of reliefnot equitable. An arbitr iry time limit applicable to each and everyapplication that may bo made and which precludes the grant of reliefon an application mado outsido that time limit without any referenceto the facts and circumstances of the caso is the antithesis of the positionunder the Act.
Regulation 16 which provides a time limit of tkreo months for thomaking of an application is therefore, in my opinion, fundamentallyopposed both to tho provisions of the Act and tho principles underlyingthem. Section 39 (1) (b) authorises the making of regulation “ in respectof all mattors necessary for carrying out the provisions of the Act orgiving effect to the principles thorcof ”. Regulation 16 appears to moneithor to carry out tho provisions of tho Act nor to give offect to thoprinciples of such provision or of tho Act and is therefore -ultra viresand inoperative.
Tho last provision in s. 39 is :—
" Evory regulation so approved shall be as valid and effectual asthough it were herein enacted. ”
612
Thangavelu v. The Queen
I am of the view that this provision only applies to a regulation dulymade within the rule making power. I am not deterred from takingthis view by the dictum of Lord Herschell in Institute of Patent Agents v.Lockwood.1. Griffith and Sheet: Principles of Administrative Law(2nd edition) states, “ Much discussion haB followed Lockwood’s case andthe Committee on Ministers Powers (Cmd. 4060 p. 40) thought thatMinister of Health v. The King (on the prosecution of Yaffe)—1931A.C. 494—had made clear that Lord Horschell’s dicta were not to befollowed On this point I agree with respect with the observationsof Weeramantry, J., in Ram Banda’s case.
I am therefore of the view that Ram Banda v. River Valleys DevelopmentBoard was correctly decided. On the finding at which I have arrivedit will be necessary to hear further argument on the other matters raisedin the appeal.
Appeal allowed.