Timber Cnft Ltd. v. Pieris
TIMBER CRAFT LTD.
COURT OF APPEAL.
RANASINGHE, J. AND TAMBIAH, J.
C. A. APPLICATION 2210/80DECEMBER 11,1980.
Labour Tribunal— Ex-parte order against employer—Application in revision madeto Court of Appeal—Non-compliance with Regulation 28 of Regulations made underIndustrial Disputes Act—Material before Court of Appeal to show that order not justand equitable-Circumstances in which relief should be granted.
The petitioner filed this application invoking the powers of the Court of Appeal byway of revision to have an ex-parte order made by the Labour Tribunal against itin favour of the applicant-respondent set aside and for the direction that an inquirybe held de novo. The said petition also contained averments together with exhibitsannexed in support showing that the ex-parte evidence of the applicant-respondenton which the order of the Tribunal was based did not stand close scrutiny and thatin the result the order of the Tribunal was not a just and equitable order.
Regulation 28 of the Regulations framed under section 39 of the Industrial DisputesAct provided that the President of the Labour Tribunal was only entitled to proceedwith an inquiry ex-parte if he was satisfied that no sufficient cause for his absencehad been shown by a party in default. The consideration of the ex-parte order in thepresent case and the proceedings of the said date did not show that the learnedPresident had given his mind to the provisions of this regulation before he decidedto proceed with the inquiry ex-parte.
The material placed before the Court of Appeal in the averments of the petitionfiled in revision together with the exhibits annexed thereto showed that several ofthe grounds set out in the said ex-parte order based as it was on the evidence of theapplicant-respondent given ex-parte did not stand close scrutiny. There was materialwhich gave strength to the petitioner-Company's assertion that that there had been notermination of the applicant-respondent's services and the learned President had not hadthe opportunity of considering all these documents at the time he made his order.
In the circumstances, even though the petitioner had not, after it defaulted inappearance, gone before the Labour Tribunal and sought the opportunity to cure itsdefault, it would be very difficult to accept an order made without considering thematerial placed before the Court of Appeal by the petitioner-Company as a just andequitable order. This was a circumstance which weighed very heavily in decidingwhether relief by way of revision should be granted to the petitioner and accordinglythe order of the Tribunal should be vacated and the application refixed for inquirysubject, however, to an order for costs in favour of the applicant-respondent.
Case refer red to
Bata Shoe Company of Ceylon Ltd. v. Sirisena, (1970) 74N.L.R. 94.
Sri Lanka Lam Reports
(198V 2 S.L.R.
APPLICATION to revise an order of the Labour Tribunal.
Lyn Wirasekera, for the respondent-petitioner.
SidatSri Nandalochana, with W. G. Deen, for the applicant-respondent.
January 13,1981.Cur. adv. vutt.
The applicant-respondent, who was an employee of thepetitioner-Company, complained to the Labour Tribunal thathis services have been unjustifiably terminated by the petitionerwith effect from 2.12.79, and prayed for re-instatement withback wages. The application had been taken up for inquiry on21.2.80. On that date an officer of the petitioner-Companyhad appeared on behalf of the petitioner-Company; and theparties had been informed that the inquiry would commenceon 2.4.80. On that date however the petitioner-Company hadnot been present. Thereafter this matter had come up for inquiryon 30.6.80. On that date too the petitioner- Company had beenabsent and also unrepresented. The applicant-respondent hadbeen present; and upon an application made by the applicant-respondent for an ex-parte hearing, the Labour Tribunal hadproceeded to hear the application ex-parte and had made anorder in favour of the applicant-respondent.
The petitioner-Company has now moved this Court by wayof revision to have the said ex-parte order revised and for adirection to the Labour Tribunal to hold an inquiry de novoat which the petitioner-Company could be present and berepresented.
A perusal of the aforementioned ex-parte order made on
by the learned President of the Labour Tribunal showsthat, after the inquiry was postponed on 2.4.80 to 30.6.80,the petitioner-Company “was informed under registered coverthat in the event of his absence on that date, the inquiry wouldbe proceeded with ex-parte". The said order however does notstate the exact date on which the petitioner-Company had beenso informed. Nor does it state that the notice so sent underregistered cover had in fact been served on the petitioner-Company.
The petitioner-Company has, in paragraph 10 of the petition,set out why the petitioner-Company failed to appear on 2.4.80.
Timber Craft Ltd. v. Pieris (Ranasinghe, J.)
There is, however, no averment with regard to it having thereaftergone before the Labour Tribunal and seeking to purge suchdefault.
As was set out in the case of Bata Shoe Company of CeylonLtd. v. Sirisena (1), Regulation 28 of the Regulations framedunder section 39 of the Industrial Disputes Act provides thatthe President is only entitled to proceed with an inquiryex-parte if he is satisfied that no sufficient cause for a party'sabsence has been shown by the party in default. A considerationof the aforesaid ex-parte order and the proceedings of 30.6.80do not show that the learned President in this case too has givenhis mind to the provisions of this Regulation before he decidedto proceed with the inquiry ex-parte on 30.6.80.
Furthermore, a consideration of the averments set out in thepetition together with the exhibits annexed thereto, in myopinion shows that several of the grounds, set out in the saidex-parte order and upon which the applicant-respondent hassucceeded in obtaining relief, do not stand close scrutiny somuch so that the said order does not appear to be a just andequitable order.
The said order proceeds, based as it is on the ex-parte evidenceof the applicant-respondent, on the footing that the applicant-respondent had been re-instated, after his earlier dismissal, uponan order made by the Commissioner of Labour: that, after suchre-instatement, the applicant-respondent had been transferred bythe petitionerCompany to its branch at Meegoda with effect from
12.79: that on the same day (1.12.79) the services of theapplicant-respondent was terminated by the petitioner-Companyin such an unlawful and unjustifiable manner that it amounted toan unconscionable act on the part of the petitioner-Company.
A perusal of the exhibits "B" and "C" annexed to the petition,however, shows that: the re-instatement of the applicant-respondent had actually been based upon a settlement arrived atbetween the applicant-respondent and the petitioner-Company(of which "B" is a copy), and not upon an order made by theCommissioner of Labour without the consent of the petitioner-company: that the "transfer" of the applicant-respondent toMeegoda was something done in terms of the said settlement "B".Furthermore the documents "D" and "F 1" to "F16” do give
Sri Lanka Lm Reports
(1981) 2 S.L.R.
strength to the petitioner-company's assertion that there hasbeen no termination of the applicant-respondent's services by thepetitioner-Company as maintained by the applicant-respondent.The learned President has not had the opportunity of consideringthese documents in making the order he did make on 30.6.80in the absence of the petitioner-Company.
Even thereafter, as indicated earlier, the petitioner-Companyhas not, after 2.4.80 gone before the Labour Tribunal and soughtan opportunity to cure its default and the explanation set outin paragraph 10 of the petition itself does not sound veryconvincing, yet it seems to me that the fact it would be verydifficult to accept an order made without taking into considerationthe abovementioned documents marked "B","C", "D''f and
"F1" to "F16", relied on by the petitioner-Company, as an orderwhich is just and equitable is a very strong circumstance whichshould weigh very heavily in deciding whether or not this Courtshould grant the petitioner-Company the relief prayed for by thepetitioner- Company.
In this view of the matter, it seems to me that any hardship,which may be caused to the applicant-respondent by relief beinggranted at this stage to the petitioner-Company by this Court,could be alleviated by an appropriate order for costs, in respect ofthe proceedings had so far, in favour of the applicant respondent. I
I therefore make order that the petitioner-Company do depositwith the Secretary of the Labour Tribunal a sum of Rs. 525 ascosts of the applicant-respondent (which said sum the applicant-respondent will be entitled to withdraw) within three weeks fromthe date of the receipt of a notice from the Labour Tribunal,and that, if the said sum is so deposited the President of theLabour Tribunal should vacate the ex-parte order made on
and refix the applicant-respondent's application forinquiry at which said inquiry the petitioner-Company wouldbe entitled to appear and participate. If, however, thepetitioner-Company does not so deposit the said sum as directedabove, the petitioner-Company's application will stand dismissed,and the aforesaid ex-parte order made on 30.6.80 will remainoperative. The learned President of the Labour Tribunal isdirected to issue forthwith a notice on the applicant- respondentas set out above.
Stats Distiihries Corporation k Mary Nona
The Registrar of this Court is directed to communicate thisorder forthwith to the learned President of the Labour Tribunai.
TAMBIAH, J.—I agree..
TIMBER CRAFT LTD. v. PIERIS