SWASTTHIKA TEXTILE INDUSTRIES LTD., v. THANTRIGE DAYARATNE

028-SLLR-SLLR-1993-2-SWASTTHIKA-TEXTILE-INDUSTRIES-LTD.-v.-THANTRIGE-DAYARATNE.pdf


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SWASTHIKA TEXTILE INDUSTRIES LTD.,
, v.
THANTRIGE DAYARATNE
SUPREME COURT.
BANDARANAYAKE, J.,
FERNANDO, J. ANDKULATUNGA, J.
S. C. REFERENCE NO. 7/92H. C. (W. P.) NO. 127/91L. T. NO. 2/347/90OCTOBER 19, 1992.
Jurisdiction of High Court of the Province to hear appeals from orders of LabourTribunals – Section 31D (3) of the Industrial Disputes Act as amended by ActNo. 32 of 1990 (s. 4) – Articles 82(6) 154P, 154P (3) (c) and 138 of theConstitution – High Court of the Provinces (Special Provisions) Act No. 19 of1990 (s. 3).
SC Swasthika Textile Industries Ltd., v. Thantrige Dayaratne (Fernando, J.)349
The following questions were referred to the Supreme Court in terms of Article125 of the Constitution.
Does section 3 of the High Court of the Provinces (Special Provinces)Act No. 19 of 1990 read with Article 154P of the Constitution empower the HighCourt established for the relevant Province under Article 154P, to hear and disposeof Appeals from the orders of the Labour Tribunals, notwithstanding the provisionsof Article 138 of the Constitution?
Does Section 31 (D) (3) of the Industrial Disputes Act as amended byAct No. 32 of 1990, entitle a party aggrieved by an order of a Labour Tribunalto prefer an appeal to the High Court of the relevant province as establishedunder Article 1S4P notwithstanding the provisions of Article 138(1).
Can the High Court of the Provinces (Special Provisions) Act No. 19 of1990 (in particular section 3 thereof), and the Industrial Disputes (amendment)Act No. 32 of 1990 (in particular section 4 thereof) be considered as provisionsof Article 1S4P (3) (c), for the purpose of conferring upon the High Courtestablished under Article 154P jurisdiction to hear and dispose of appealspreferred from orders of Labour Tribunals?
Could the Supreme Court and/or the High Court make order in terms ofArticle 82 (6) of the Constitution that the provisions of the High Court of theProvinces (Special Provisions) Act No. 19 of 1990 (and/or section 3 thereof) andthe Industrial Disputes (Amendment) Act No. 32 of 1990 (and/or section 4 thereof)do not have the force and effect of superseding and nullifying the provisions ofArtcle 138(1) of the Constitution?
Held :
Section 3 of the High Court of the Provinces (Special Provisions) Act No.19 of 1990 read with Articles 111, 138 and 154P (3) (c) conferred concurrentappellate and revisionary jurisdiction on the High Court in respect of orders ofLabour Tribunals; and Section 31D (3) of the Industrial Disputes Act as amendedby Act No. 32 of 1990, made that jurisdiction exclusive (thereby taking awaythe jurisdiction of the Court of Appeal in that respect). Those provisions wereenacted in the exercise of the powers conferred by the Constitution and werenot in any way an amendment of the Constitution, and the question of compliancewith Article 82 did not arise nor were they inconsistent with the Constitution, andthe question of compliance with Article 84 did not arise. There being no incon-sistency between the provisions of those amending Acts and the Constitution,those provisions cannot, by any process of interpretation be treated as inoperativeor ineffective. In so far as the validity of those provisions is concerned, Article80 (3) precludes the Supreme Court from inquiring into, pronouncing upon orin any manner calling in question, the validity of these provisions.
The questions referred are answered as follows
Yes.
Yes.
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No. Those enactments are not * provisions of Article 154P (3)(c) * but have been enacted in pursuance, inter alia, of powersconferred by that Article.
Does not arise, as those provisions are authorised by, and arenot inconsistent with the Constitution.
Reference to the Supreme Court under Article 125 (1) of the Constitution.
S.Somasundaram with A. M. Somapala and D. G. Karunasena for applicant-
respondent.
S.Egalhewa for employer – appellant.
K. C. Kamalasabayason, D. S. G., for the Attorney-General.
cur. adv. vult.
October 27, 1992.
FERNANDO, J.
Being dissatisfied with an order of the Labour Tribunal, the Employer-Appellant filed an appeal on 1.8.91, to the High Court of the WesternProvince, purportedly under section 31D (3) of the Industrial DisputesAct as amended by Act No. 32 of 1990. Under and in terms of Article125 of the Constitution, the High Court of the Western Provincereferred the following questions which arose in that Court in the courseof the proceedings in respect of that appeal :
Does section 3 Of the High Court of the Provinces (SpecialProvisions) Act, No. 19 of 1990, read with Article 154P of theConstitution empower the High Court established for therelevant province under Article 154P, to hear and dispose ofAppeals from the orders of the Labour Tribunals, notwithstand-ing the provisions of Article 138 of the Constitution.
Does section 31D (3) of the Industrial Disputes Act, as amendedby Act No. 32 of 1990, entitle a party aggrieved by an orderof a Labour Tribunal to prefer an appeal to the High Courtof the relevant province as established under Article 154P,notwithstanding the provisions of Article 138 (1).
Can the High Court of the Provinces (Special Provisions) Act,No. 19 of 1990 (in particular section 3 thereof), and the
SC Swasthika Textile Industries Ltd., v. Thantrige Dayaratne (Fernando, J.)351
Industrial Disputes (Amendment) Act, No. 32 of 1990 (inparticular section 4 thereof), be considered as provisions ofArticle 154P (3) (c), for the purpose of conferring upon the HighCourt established under Article 154P jurisdiction to hear anddispose of appeals preferred from orders of Labour Tribunals.
Could the Supreme Court and/or the High Court make orderin terms of Article 82(6) of the Constitution that the provisionsof the High Court of the Provinces (Special Provisions) Act,No. 19 of 1990 (and/or section 3 thereof) and the IndustrialDisputes (Amendment) Act, No. 32 of 1990 (and/or section 4thereof) do not have the force and effect of superseding andnullifying the provisions of Article 138 (1) of the Constitution.
Article 154P (3) of the Constitution provides :
Every such High Court shall –
exercise according to law, the original criminal jurisdiction ofthe High Court of Sri Lanka in respect of offences committedwithin the Province ;
notwithstanding anything in Article 138 and subject to any law,exercise, appellate and revisionary jurisdiction in respect ofconvictions, sentences and orders entered or imposed byMagistrates Courts and Primary Courts within the Province ;
exercise such other jurisdiction and powers as Parliament may,by law provide.
Learned Counsel for the Applicant-Respondent, who had taken theobjection that the High Court had no jurisdiction, submitted to us thatArticle 154P (3) neither conferred, nor authorised Parliament by anordinary law to confer, on the High Court appellate jurisdiction inrespect of Labour Tribunals; that Article 154P (3) (c) empoweredParliament to confer" other jurisdictions ", meaning thereby jurisdic-tions other than the " original criminal jurisdiction (referred to in Article154P (3)) and the “ appellate and revisionary jurisdiction “ (referredto in Article 154P (3) ; that if by the Thirteenth Amendment it wasintended to empower Parliament to confer appellate and revisionaryjurisdiction in respect of Labour Tribunal's, Article 154P (3) (c) would
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have included a reference to " other appellate and revisionaryjurisdiction ; that appellate jurisdiction in respect of Labour Tribunalswas vested in the Court of Appeal under Article 138 (1) and Article154P (3) (c) did not authorise Parliament to take away a jurisdictionconstitutionally vested in the Court of Appeal and to vest it in theHigh Court, otherwise than by a constitutional amendment or an Actpassed with a special majority ; that by virtue of Article 82 (6), Article138 (1) should not be deemed to have been repealed or amendedby Act No. 19 of 1990 or Act No. 32 of 1990 ; and therefore thatthe High Court of the Western Province did not have jurisdiction.
In dealing with The Agrarian Services (Amendment) Bill (SupremeCourt S.D. Nos. 2/91 and 4/91 ; determined on 7.2.91) this Courtreferred to important principles governing the jurisdiction of courtsand tribunals exercising the judicial power of the people, and theinterpretation of Article 154P (3);
Apart from jurisdictions constitutionally vested and entrenched,directly or indirectly, Parliament may, by ordinary legislation,abolish, alter or transfer jurisdictions ; Parliament may createa new jurisdiction or transfer an existing jurisdiction, so longas such jurisdiction is vested in a person or body constitutionallyentitled to exercise the judicial power of the people ;
The appellate and revisionary jurisdiction of the Court of Appealunder Article 138 (1) is not entrenched, as it is " subject tothe provisions of the Constitution or of any law it maytherefore be abolished, amended or transferred. By contrast,its jurisdictions under Articles 140 and 141 are entrenched ;but for the proviso inserted by the First Amendment, its juris-diction under Article 140 cannot be transferred even to theSupreme Court ;
The jurisdiction of the High Court under Article 111, originallyand after the Thirteenth Amendment, was neither defined norentrenched and had to be conferred by Parliament, by ordinarylaw. Article 154P (3) (b) conferred jurisdiction on the High Court" notwithstanding anything in Article 138 ", thus avoiding anypossibility of an argument that these provisions were contra-dictory, and manifesting an intention to confer a concurrentjurisdiction. That jurisdiction was also “ subject to any law ",and therefore (as in the case of Article 138) was not entrenched,and was liable to alteration by Parliament by ordinary law.
SC Swasthika Textile Industries Ltd., v. Thantrige Dayaratne (Fernando, J.)353
Article 111(1) and 138 enabled Parliament by ordinary law, totransfer an existing jurisdiction of the Court of Appeal underArticle 138, to the High Court. Accordingly, there is no justi-fication for adopting a restrictive interpretation of Article 154P(3) (c), inconsistent with those provisions – as, for instance,by requiring a law passed by a special majority ; its plainmeaning and effect is to empower Parliament to confer any" other “ jurisdiction on the High Court, i.e. in addition to the"original criminal jurisdiction ", and the " appellate and revision-ary jurisdiction in respect of convictions, (etc.) by MagistratesCourts and Primary Courts “ appellate and revisionaryjurisdiction in respect of orders made by Labour Tribunals "is " other “ jurisdiction.
It is therefore beyond argument that section 3 of the High Courtof the Provinces (Special Provisions) Act No. 19 of 1990, read withArticles 111, 138 and 154P (3) (c), conferred concurrent appellateand revisionary jurisdiction on the High Court in respect of ordersof Labour Tribunals ; and section 31D (3) of the Industrial DisputesAct, as amended by Act No. 32 of 1990, made that jurisdictionexclusive (thereby taking away the jurisdiction of the Court of Appealin that respect). Those provisions were enacted in the exercise ofthe powers conferred by the Constitution, and were not in any wayan amendment of the Constitution, and the question of compliancewith Article 82 did not arise ; nor were they inconsistent with theConstitution, and the question of compliance with Article 84 did notarise. There being no inconsistency between the provisions of thoseamending Acts, and the Constitution, those provisions cannot, by anyprocess of interpretation, be treated as inoperative or ineffective.Insofar as the validity of those provisions is concerned, Article 80(3) precludes this Court from inquiring into, pronouncing upon, or inany manner calling in question, the validity of those provisions.
The questions referred have therefore to be answered as follows:
Yes.
yes.
No. Thoseenactmentsarenot"provisionsofArticle154P
(3) (c) “, but have been enacted in pursuance, inter alia, ofpowers conferred by that Article.
Does not arise,as thoseprovisionsareauthorised by, andare
not inconsistent with, the Constitution.
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The Employer-Appellant will be entitled to costs, payable by theApplicant-Respondent, in a sum of Rs. 500/-.
BANDARANAYAKE, J. – I agree.
KULATUNGA, J.
I have perused in draft the determination of my brother Fernando
J.on the questions referred to this Court by the High Court of theWestern Province. I am substantially in agreement with the answersto those questions formulated by my brother. I would, however, preferto base the answers entirely on Article 80 (3) of the Constitution whichreads :
“ Where a bill becomes law upon the certificate of the Presidentor the Speaker, as the case may be, being endorsed thereon,no Court or tribunal shall inquire into, pronounce upon or in anymanner call in question, the validity of such Act on any groundwhatsoever "
On the face of Section 3 of the High Court of the Provinces (SpecialProvisions) Act No. 19 of 1990 and Article 31D (3) of the Industrialdisputes Act as amended by Act No. 32 of 1990, the High Courtestablished for any Province has the jurisdiction to hear and determineappeals from the orders of Labour Tribunals within the Province,which jurisdiction is now made exclusive (thereby taking away thejurisdiction of the Court of Appeal in that respect). In view of Article80(3) “ no Court or tribunal shall inquire into, pronounce upon or inany manner call in question “ the validity of the said enactments.Hence the jurisdiction of the High Court and the right of the employer-appellant to review the order appealed from cannot be questioned.
In these proceedings, the applicant-respondent is in effect invokingour constitutional jurisdiction under Article 120 of the Constitutionwhich he may have invoked in terms of Article 121 and the SupremeCourt Rules before the enactments under reference became law. Thishe cannot do. I would, therefore, answer the questions referred tothis Court as follows : 1
1.Yes.
Yes.
No. Those enactments are not" provisions of Article 154P (3)
", but have been enacted by Parliament and confer juris
SC Swasthika Textile Industries Ltd., Thantrige Dayaratne (Fernando, J.)355
diction on the High Court of the Province to hear and determineappeals from an order of a Labour Tribunal.
Does not arise.
Questions referred
answered