018-NLR-NLR-V-70-S.-E.-FERNANDO-Appellant-and-N.-M.-JINADASA-Respondent.pdf
AXLES, J.—Fernando v. Jinadaea
71
Present : Alles, J.
S. E. FERNANDO, Appellant, and N. M. JTNADASA, Respondent
S. O. 47j1967—Labour Tribunal Case, 2903
Industrial Disputes Act—President of Labour Tribunal—Appointment by thePublic Service Commission—Subsequent appointment by the Judicial ServiceCommission— Validity.
A person appointed by the Public Service Commission as President of aLabour Tribunal continues to have valid and effectual jurisdiction under thatappointment if, while that appointment remained unrevoked, the JudicialService Commission purported to appoint him to the same office subsequentlyin consequence of the decision in Walker Sons & Co. Ltd. v. Fry.
.A. P P E A L from an order of the President of a Labour Tribunal,H. W. Senanayake, for the defendant-appellant.
No appearance for the applicant-respondent.
Cur. adv. vult.
September 9, 1967. Alles, J.—
The point of law raised at the hearing of this appeal by Counsel forthe appellant was that the President of the Labour Tribunal actedwithout jurisdiction when he made the order against his client in viewof the decision of the Privy Council in The United Engineering WorkersUnion v. Devanayagam 1.
The President w'as appointed by the Public Service Commission bynotification in the Government Gazette No. 14,004 of 10.4.64, butsubsequent to the decision of the Divisional Bench of the SupremeCourt in Walker Sons db Co. Ltd v. Fry,2 he was again appointed asPresident by the Judicial Service Commission (vide Government GazettesNos. 14,693 of 29.4.66 and No. 14,732 of 20.1.67). The applicationby the respondent was made on 6.11.66 and the appellant filedanswer on 8.12.66 and the President delivered the order in the instantcase on 12.2.67 at a time when he was appointed by the Judicial ServiceCommission. The majority decision of the Privy Council in the above-mentioned case overruled the majority decision of the Supreme Court inWalker Sons & Co. Ltd. v. Fry and held that the President of a LabourTribunal does not hold judicial office within the meaning of section55 (5) of the Ceylon (Constitution) Order in Council, 1946 and thereforedoes not require to be appointed by the Judicial Service Commission.
1 (J<>67) 69 N. L. R. 289.
* (1965) 68 N. L. R. 73.
72
ALL.ES, J.—Fernando v. Jinadasa
It has been submitted on behalf of the appellant that the subsequentappointment of the President by the Judicial Service Commission makesinvalid the prior appointment of the President by the Public ServiceCommission in that pending the appeal to the Privy Council Presidentsof Labour Tribunals ceased to carry out the duties and obligations oftheir office as Presidents. I am unable to agree. The appointment ofthe President by the Public Service Commission was never revoked bythat body and the appointment of the President by that body continuedto be valid and effectual notwithstanding the purported re-appointmentby another body in the exercise of their powers under the Constitution.The fact that the Presidents did not exercise their powers as Presidentssubsequent to the decision in Walker Sons db Co. Ltd. v. Fry was out ofan abundance of caution in the event of the Privy Council upholdingthe decision of the Divisional Bench and cannot affect any orders properlymade by them in the exercise of their powers since they were alwaysproperly appointed by the appropriate authority. I am therefore unableto subscribe to the view put forward by learned Counsel for the appellantthat the President in the instant case acted without jurisdiction. Theappeal is therefore dismissed.
Appeal dismissed.