FULLG J.—Samelis v. Civilian Labour Administrative Officer
1955Present: Pulle J. and Weerasoorlya J.
T. K. SARNELIS, Appellant, and CIVILIAN LABOURADMINISTRATIVE OFFICER, Respondent
S. C. 962—Workmen’s Compensation C. 30/9,807 j50
Workmen’s Compensation Ordinance—Appeal—Form of petition of appeal—Sections48 (1), 49 (1), 51— Criminal Procedure Code, e. 340 (2).
A point of law stated in a petition of appeal filed under section 48 (1) of tlioWorkmen's Compensation. Ordinance need not bo certified by an advocate orproctor in terms of section 340 (2) of the Criminal Procedure Code.
Thomas v. Ceylon Wharfage Co., Ltd. (1948) 49 N. L. R. 397, overruled.
J.HIS was a preliminary objection taken against an appeal preferredunder the Workmen’s Compensation Ordinance. The matter was referredto a Bench of two Judges.
No appearance for the appellant.-
iS'. •/. Kadirgamar, with P. Somatilakam, for the respondent.
Mervyn Fernando, Crown Counsel, as amicus curiae..
Cur. adv. vuU.
March 30, 1955. Tulle J.—
This matter which has been referred to a Bench of two Judges raises apoint of procedure in regard to appeals to this court under the Workmen’sCompensation Ordinance. –
The appellant claimed compensation against the Civilian LabourAdministrative Officer, Royal Air Force, Katunayake, for injury sufferedas the result of an accident which occurred on the 1st April, 1950. Anorder was made dismissing his claim on the ground that he was not a“ workman ” as that word is defined in section 2 (1) of the Ordinance.He appealed from that order. The question we have to decide is whetherthe appeal should be rejected on the preliminary objection taken by theemployer that the petition does not bear a certificate by an advocate orproctor that the matter of law on which the appeal is taken is afit question for adjudication by this Court. The objection is supportedon the authority of Thomas v. Ceylon Wharfage Co., Ltd.1 and TheAdditional Controller of Establishments v. Lewis 2. The appellant didnot appear nor was he represented and we are indebted to learned CrownCounsel for appearing as amicus curiae.
The right of a party aggrieved tc appeal oh a point of law is conferredby section 48 (1) of the Ordinance which is the first of the sections inPart X dealing with appeals. The appeal must be by way of petitionwhich shall, by section 49 (1), “ bear uncancelled stamps to the value of
2 (1949) 40 C. L. II'. 3.
(1948) 49 N. L. R. 397.
PULLE J.—Samelia v. Civilian Labour Administrative Officer
five rupees and shall be filed in the Supreme Court within a period ofthirty days reckoned from the date of the order againsft which the appealis preferred The next stage of the appeal is its hearing and disposaland that is provided for in section 51 which reads,
“ SubjecAto the provisions of this Part the provisions of ChapterXXX of the Criminal: JEt^ocedujpe Code shall apply mutatis mutandisin regard to all matters connected with the hearing and disposal of anappeal preferred under section 48 and, for such purpose, the order ofthe Commissioner shall be deemed to be the order of a court. ”
In my view the qualifying phrase “ subject to the provisions of thisPart ” means that if any Scatter pertaining to the hearing and disposalof an appeal is specifically provided for in Part X such a matter wouldnot attract the provisions of Chapter X XX of the Criminal ProcedureCode. On this line of reasoning, even if it can be maintained that theexpression in section 51 “ all matters connected with the hearing and dis-posal of an appeal ” is wide enough to embrace the appeal itself,including, therefore, the form of that appeal, the qualifying phrase withwhich section 51 opens will exclude the petition of appeal from the ambitof Chapter XXX of the Criminal Procedure Code. In other words,sections 48 and 40 of the Ordinance deal expressly with the conditionsnecessary to constitute an “ appeal ” and one is not called upon, oncethose conditions are satisfied, to invoke Chapter XXX for the purposeof determining its true form.
With all respect to the learned Judge who decided the two cases reliedon by the respondent to support the preliminary objection, I am unableto agree that, giving the words “ in regard to all matters connected withthe hearing and disposal ofsn appeal ” even a connotation of the widestamplitude, the provisions of section 340 of the Criminal Procedure Codegovern the form of an appeal under the Workmen’s Compensation Ordin-ance. The matter becomes clear to me when sections 48 to 51 areexamined in two stages. Section 48 confers the substantive right ofappeal (vide Colonial Sugar Refining Co. v. Irving *) and section 40regulates the conditions pre-requisite to the exercise of that right. Oncethat right is exercised only the steps taken for the adjudication of thequestions ruised by the appeal and the adjudication itself can be regardedas “ all matters connected With the hearing and disposal of the appeal ”within the meaning of section 51. The corresponding stages, namely,the exercise of the substantive right of appeal from a judgment or finalorder pronounced by a Magistrate’s Court or District Court (vide sections338 and 340) and the procedure thereafter (vide sections 343, 344, 345 and347) are equally well marked.
In the case of University Motors v. Barrington 2 referred to in Thomasv. Ceylon Wharfage Co., Ltd. 3 Clauson, L. J., stated,
"The phrase ‘a hearing’ is somewhat vague, and is susceptibleof different meanings in various contexts. Perhaps the best examplethat can be given to show that that is so is the case which was cited
1.4. C. 369.2 (1039) / All tl. R. 630.
»(19'48) 49 N. L. R. 39 7.
368 WEKKASOORIYA J.—Samelis v. Civilian Labour Administrative Officer
in the House of Lords, which it is unnecessary to go into at length.Green v. Penzance (Lord) 1, where in a particular context, the verbto hear ’ was decided, to cover, not only the occasion on which thejudicial officer in that case dealt1 with the case (if I may use that ex-pression), but also all occasions on which he was performing the judicialfunctions vested in him under the particular statutein question.It is material to this case only as showing that it is impossible to cometo a sound conclusion as to the meaning of the word ‘ hearing 1 in itsapplication unless the particular circumstances of each case are givencareful consideration
Bearing in mind the caution in the last sentence of the passage citedI think it is a legitimate observation to make in the present case thatunless and until the appeal was filed there was not called into operationthe performance of any judicial functions or the taking of any stepsconnected therewith.
In my opinion a petition of appeal filed under the Workmen’s Com-pensation Ordinance need not bear a certificate in terms of section 340 (2)of the Criminal Procedure Code and the preliminary objection must beoverruled. The appeal will, therefore, be set down for hearing in theordinary course.
I agree.' '•
Section 51 of the Workmen’s Compensation Ordinance expresslyrefers to “ an appeal preferred under section 48 ”. In my opinion thereis “ an appeal preferred under section48 ” when (inacase where an appeallies) a petition of appeal bearing the requisite stamp or stamps is filedby the aggrieved party in the Supreme Court within the specified time.
It seems to me that the line is clearly drawn by the use of the wordsquoted above and that it is only in regard to all matters connected withthe hearing and disposal of such an appeal that the provisions of ChapterXXX of the Criminal Procedure Code would apply. One may, however,then be faced with the argument that the words “ all matters connectedwith ” in section 51 are a superfluity and that the same result wouldhave been achieved even if those words had been omitted from thecontext, but this argument appears to be met by the consideration thatthose words somewhat enlarge the expression “ the hearing and disposal ”so as to bring within its scope (in a case of doubt) such matters as, forexample, the giving of notice of appeal, the listing of the appeal and thecommunication of the result of the appeal to the Commissioner, in regardto each of which there is no provision in Part X of the Workmen’s Com-pensation Ordinance whereas specific provision in that behalf is containedin sections 342, 343 and 350 of the Criminal Procedure Code.
’ Preliminary objection overruled.1 L. R. 6 -4pp. Can. 657
T. K. SARNELIS , Appellant, and CIVILIAN LABOUR ADMINISTRATIVE OFFICER, Responde