036-NLR-NLR-V-71-THE-SUPERINTENDENT-NAKIADENIYA-GROUP-NAKIADENIYA-Appellant-and-B.-A.-CORNE.pdf
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Superintendent, Xukiwlcniyu Group v. Cornelishumy
1968Present: Wijayatllake, J.THE SUPERINTENDENT, NAKIADENIYA GROUP,NAKIADENIYA, Appellant, and B. A. CORNELISHAMY,
Respondent
S. C. 11-68—Labour Tribunal, 2903fG.
Industrial Disputes Act—Labour Tribunal—Application, by workman, for relief—Failure to make a natural or legal person as respondent—Amendment ofpleadings at stage of appeal to Supreme Court—Permissibility.
Jn an application made before e Labour Tribunal, the applicant (a workman)prayed for relief against “ The Superintendent, Nakiadeniya Group, Nakia-deniya ” as the employer, and was awarded a certain sum of money ascompensation.
Held, that, inasmuch as the application failed to name a natural or legalperson as the employer, the order of compensation was not on enforceableorder. Superintendent, Dcexide Estate, Maskeliya v. 1. T. Kazhakam (70 N. L. R.279) followed.
Held f urther, that the designation of the employer could not be amended atthe stage of appeal by the Supreme Court ex metro motu, so as to substitute anatural or legal person retroactively. Manager, Ury Group, Passara t>.Democractic Workers' Congress (71 N. L. R. 47) not followed.
A.PPEAL from an order of the Labour Tribunal, Galle.Lakshtnan Kadirgamar, for the employer-appellant.
P.K. Liyanage, for the applicant-respondent.
143
WTJAV ATTf/AKW, j.—Superintendent, Nakiadeniya Group v.
Comdishamy
August- 31,1968. Wtjayatilake, J.—
This is an appeal from the order of the President, Labour Tribunal,Galle, awarding a sum of Re. 1,800 as compensation to the applicant, alorry driver of Nakiadeniya Group estate.
Mr. Lakshman Kadirgamar, Counsel for the appellant, drawn myattention to the application made before the Labour Tribunal. It wouldappear that B. A. Oomeliahamy, the. applicant, has prayed for reliefagainst the Superintendent, Nakiadeniya Group, Nakiadeniya, as theemployer. In the order made by the President he refers to this fact thatthe application has been filed against the “ Superintendent of NakiadeniyaEstate
The regulations framed under the Industrial Disputes Act, No. 43 of1950, appearing in the Government Gazette of 2nd March, 1959, set. out inthe first schedule, form D showing the form of the application to be madeagainst the employer. The Industrial Disputes Act, as amended by ActNo. 62 of 1957, provides that an “ employer ” means any person whoemploys or on whose behalf any other person employs any workman andincludes a body of employers (whether such body is a firm, company,corporation or trade-union) and any person who on behalf of any otherperson employs any workman. Mr. Kadirgamar accordingly submitsthat in the instant application the applicant has failed to name either anatural person or a legal person. In support of his submission herelies on the case of The Superintendent, Jheside Estate, Maskdiya v. I. T.Kazhakam1 where Siva Supramaniam. J. has held that under theIndustrial Disputes Act the party against vhom_ a Labour Tribunal isbound to make an order must be a natural or legal person, for it is only'against such a person that the order can be enforced. The LabourTribunal had made this order against the Superintendent, Deeside estatedirecting him to re-instate a labourer, whose services had been summarilyterminated and to pay his back wages. It was held that the order wasunenforceable because the Superintendent of Deeside estate was not alegal person ”. A Corporation Sole must be expressly created by Legis-lative Enactment. In the course of his judgment he has relied on theprinciple set out by the Privy Council in the case of Land Commissionerv. Ladamuthupillai2.
Mr. Kadirgamar concedes that this point has not been raised in thepetition of appeal but he submits that he is entitled to do so at this stage.He refers me to the recent judgment in Ike case of Walker Sons <fe Co.Ltd. o. Fry *.
Counsel for the respondent states that- the owners of this estate are theMalay Tea & Rubber Co. Ltd., and he concedes that in view of the judg-ment of Siva Supramaniam, J. there is a technical difficulty which he isunable to surmount. I am inclined to uphold the submission made by
(1968) 70 N. L. It. 279.
* (IS6$) 68 N. L. B. 73.
i
* (I960) 62 N. L. B. 169
i-14VVIJ A Y ATI LAKE, J.—Superintendent, Nakiadeniya Group c-
Comelishamy
Mr. Kadirgaroar that the order made by the President is not an enforce-able order on the authority of the judgment of Siva Supramaniam, J. Thetjuestion does arise as to whether the applicant is barred by prescriptionfrom pursuing this matter before the Labour Tribunal by duly amendingthe designation of the respondent to the application. Mr. Kadirgamarrefers me to the judgment of Weeramantry, J. reported in 74 C. L. W. atpage 81, according to which it would appear that the plea of prescriptionwould not be available to the appellant, in the event of the applicanttiling a fresh application. Moreover, as this application to follow wouldhe tantamount, to a renewal of the application bj7 naming as therespondent the natural person or legal person as contemplated in thejudgment of Siva Supramaniam, J. to enable the President to make anenforceable order, 1 do not think any objection can be taken to it on1 he ground of prescription. Subject to the applicant’s right to renew hisapplication I allow the appeal. The parties shall bear their own costs ofappeal.
Since dictating the above order in Court my attention has been drawnlo a judgment of Samerawickrame. J. in S.C. 184/67, Labour TribunalCase No. B/1869 decided on 7.7.19681 where in an analogous situation,while agreeing with the judgment of Siva Supramaniam, J. referred toabove that an application should be made against a natural or legalperson, he observed that there should not be the same insistence on theproper naming of the respondent as there should be, for example, in thecase of an application made to a Court of Law and if there is such adesignation or description from which the identity of the employer canbe known, it should be sufficient. He thereupon directed an amendmentof the caption in the pleadings and in particular in the order of thePresident by stating the employer to be W Wickremasinghc, TheManager. Ury Group, Passara. It would appear that he has got thisinformation on a perusal of the proxy, filed by the respondent to thisapplication.
With respect I am unable to adopt the course taken by my brotherSamerawickrame, J. No doubt, it would appear to be practical andexpeditious but I do not think where the President has made anunenforceable order this Court in appeal can ex mero motu make anysuch amendment to take effect retroactively. If the respondent to thisapplication consents to such an amendment it would perhaps be different.Furthermore, the definition of the term “ employer ” in the IndustrialDisputes Act catches up different categories of employers and it is theapplicant who should exercise his discretion in selecting one or more ofthem. I do not think the Supreme Court in Appeal is justified indoing so.
I see no reason to vary the order I have already made.
Appeal allowed.
1 {1968) 71 N. L. B. 47.