SRI LANKA BROADCASTING CORPORATION v. DE SILVA

020-SLLR-SLLR-1981-2-SRI-LANKA-BROADCASTING-CORPORATION-v.-DE-SILVA.pdf


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(1981) 2S.LR.
SRI LANKA BROADCASTING CORPORATION
v.OE SILVA
COURT OF APPEAL
VICTOR PERERA. J. AND L H. DE ALWIS, J.C. A. APPLICATION 176/81.
JULY 6.1981.
Labour Tribunal—Application made to revise order of such Tribunal after appealableperiod—Does revision lie—Constitution of Sri Lanka, 1978. Articles 138, 139, 140.145.
The petitioner filed an application to revise an award made by the President of a LabourTribunal. The application was filed several months after the appealable period. Thepreliminary objection was taken that such an order could be called in question onlyby way of appeal on a question of law.
Held
The preliminary objection must be upheld and that the powers of Court of Appealby way of revision did not extend to orders of the Labour Tribunal.
Cases referred to
Mrs. Thameena v. Koch, (1969) 72 N.L.R. 192.
Timber Craft Ltd. v. Peiris, (1981) 2 Sri L.R. 219.
APPLICATION to revise the order of a Labour Tribunal.
Lyn Weerasekera, with Af. Devasagayam. for the petitioner.
K. Shanmugalingam, with K. Thevarajah, for the respondent.
Cur. adv. vult
July 15, 1981.
VICTOR PERERA, J.
This is an application by way of revision filed by the petitioneron the 11th February, 1981, to have an award made by thePresident at a Labour Tribunal dated 31st October, 1980, quashedseveral months after the appealable period.
The respondent-workman had made an application to theLabour Tribunal for relief alleging that his services had beenillegally terminated by the Sri Lanka Broadcasting Corporation,the petitioner. An inquiry was held by the President of the Labour
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Tribunal under the provisions of the Industrial Disputes Act(Chap. 131) as amended by Acts Nos. 14 of 1957, 62 of 1957 and27 of 1966. At the conclusion of the inquiry the President madean order on the 31st October, 1980, that the respondent-workmanshould be re-instated. The petitioner in his affidavit admits havingreceived the order on the 7th November, 1980, but states that thematter had remained in the office unattended to as the officernormally dealing with matters of this nature was on leave. Theappellant admits that he did not appeal against that order for thatreason within the appealable period.
Counsel for the respondent took up the preliminary objectionthat the petitioner-employer had a right of appeal against thatorder within the period of 14 days specified in section 31D. Hesubmitted that under the provisions of section 31D (1) and (2) ofthe Industrial Disputes Act the order could be called in questiononlv bv wav of an appeal on a question of law and that after thelapse of the appealable period when no appeal had been filed, theorder became final and conclusive and could not be called inquestion in any Court. He further contended that the petitionerhaving failed to appeal against the order had been guilty of lachesand having delayed taking any steps instead of making anapplication for a writ of certiorari had sought the intervention ofthis Court by way of revision. He cited the judgment of theSupreme Court in the case of Mrs. Thameena v. Koch (1) whereTennekoon, J. held that the revisionary powers of the SupremeCourt do not extend to revision of orders made by LabourTribunals.
Mr. Lyn Weerasekera, counsel for the petitioner, contendedthat that was a decision in 1969 before the Constitution-of theDemocratic Socialist Republic of Sri Lanka (1978) was proclaimedand was therefore not applicable in respect of such orders after thepromulgation of the Constitution. He relied on Article 138 of theConstitution in support of his contention.
The then Supreme Court's powers in regard to appeal andrevision are contained in section 19 (b) of the Courts Ordinance(Chap. 6) (Revised Legislative Enactments). In dealing with thejurisdiction and powers of the Supreme Court, section 19 (b)
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provided that the Supreme Court shall have and exercise-
lb) an appellate jurisdiction for the correction of all errors ashereinafter specified, which shall be committed by anyoriginal Court, and sole and exclusive cognizance by way ofappeal and revision of all causes, suits, actions, prosecutions,matters and things of which such original Court may havetaken cognizance.
This Article 138 of the Constitution provides that the Court ofAppeal shall have and exercise an appellate jurisdiction for thecorrection of all errors in fact or in law which shall be committedby any Court of First Instance, Tribunal or other institution andsole and exclusive cognizance by way of appeal, revision andrestitutio in integrum of all causes, suits, actions, prosecutions,matters or things of which such Court of First instance, Tribunalor other institution may have taken cognizance, subject to theprovisions of the Constitution or of any law. Though thejurisdiction was extended to cover Tribunals and other institutionsthe exercise of that power was made subject to the provisionsof the Constitution or of any law. The Industrial Disputes Lawhad provided only for an appeal on a question of law but not forapplications for revision. On the other hand the Civil ProcedureCode (Chap. 101) in section 753 provides for applications by wayof revision in addition to the right of appeal in all civil cases in theDistrict Court. Sections 364 and 366 of the Code of CriminalProcedure Act, No. 15 of 1979, has given this Court power to actby way of revision in criminal cases. A consideration of the nextfollowing Articles of the Constitution indicate the correctconstruction and application of the powers referred to in Article138. Article 139 deals with the exercise of the powers of thisCourt in appeals from an order, judgment, sentence of a court ofFirst Instance, Tribunal or other institution. Article 140 hasgranted the Court of Appeal full power and authority to call forand inspect the records of any Court of First Instance or Tribunalor other institution in the exercise of its powers to issue writs.But in regard to the exercise of its revisionary powers, the Courtof Appeal had been given the power to call for and inspect anyrecord of any Court of First Instance only and not the records ofTribunals and other institutions. This would therefore exclude the
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examination of the record in a Labour Tribunal by way of revision.
Mr. Lyn Weerasekera.then sought to rely on Article 145, butthat Article gave powers to this Court to examine and inspectrecords only of a Court of First Instance and make orders in itsexercise of its revisionary powers. This Article thereforelimits the exercise of such powers by this Court to records ofCourts of First Instance only. He referred us also to the case ofTimber Craft Ltd. v. Premasiri Peiris (2), a judgment of Ranasinghe,
J.and Tambiah, J., where this Court had purported to haveentertained an application for revision and made an order, infairness to the said learned Judges who heard that case, it wouldappear that this objection had not been raised before them andtherefore no opportunity afforded to that Bench to consider thisquestion. There has been no pronouncement made in regard to thequestion of jurisdiction and that Bench had proceeded to inspectthe record of the Labour Tribunal and had made order.
I am of the view that the preliminary objection was wellfounded and I therefore uphold it.
The application is dismissed with costs.
H. DE ALWIS, J.-l agree.Application dismissed.