Jayasmghe v. Kiribindu and Others (Wadugodapitiya, J.)
TOPA SPORTING GOODS (PVT) LTD.
THE COMMISSIONER OF LABOUR AND THREE OTHERS
G. P. S. DE SILVA. C.J.,
RAMANATHAN, J. ANDDR. BANDARANAYAKE, J.
S.C. APPEAL NO. 48/96.
C.A. NO. 3/96.
FEBRUARY 17 AND MARCH 26, 1997.
Certiorari – Termination of Employment of Workman (Special Provisions) Act, No.51 of 1988 – Order to pay compensation – Rejection of application on ground oflaches and delay.
Ordinarily a court should be very slow to dismiss an application without issuingnotice on the respondents on the ground of delay of a short period of six monthsunless there are compelling circumstances such as grave and substantialprejudice caused to a party by reason of such delay. To refuse certiorari solely onthe ground of delay may undermine the rule of law particularly where the decisionis sought to be quashed on the basis of want of jurisdiction.
Case referred to:
Sebastian Fernando v. Katana Multi-Purpose Co-operative Society Ltd., andOthers  1 Sri.L.R. 342.
APPEAL from the order of Court of Appeal.
Sanjeewa Jayawardena for the petitioner-appellant.
S. Sinnathamby tor the 4th respondent-respondent.
U. Egalahewa, S.C. for the 1-3rd respondents-respondents.
Cur. adv. vult.
Sri Lanka Law Reports
(1997] 2 Sri L.R.
P. S. DE SILVA, C.J.
The petitioner-appellant, a private limited liability companyengaged in the principal business of the manufacture of tennisrackets for export moved the Court of Appeal by way of a writ ofcertiorari to quash the order made by the 1st respondent (theCommissioner of Labour) in terms of section 6A (1) of the Terminationof Employment of Workman (Special Provisions) Act. The order (P27)dated 18.6.95 required the petitioner-appellant to pay certain sums ofmoney as compensation to the workmen whose names were set outin the schedule to P27. The appellant company was ordered to paythe money on or before 31.7.95. The application for the writ ofcertiorari was filed on 2.01.96. The Court of Appeal took the view thatthe delay of six months was fatal to the application and dismissed itsummarily without issuing notice on the respondents. It is right to addthat the Court of Appeal observed that the reason given in thepetition for the delay was false.
It was averred inter alia, in the petition that P27 was illegal, nulland void inasmuch as it failed to take into account “relevantcircumstances" and was “totally arbitrary" for the reason that therewas “no rational basis of computation of the compensation."
Special leave to appeal to this court was allowed on the questionwhether the Court of Appeal erred in holding that the petitionerappellant was guilty of laches and whether summary dismissal wasjustified.
Several decisions have dealt with the question whether delayper se is fatal to an application for a writ of certiorari. Some of thesedecisions are referred to in Sebastian Fernando v. Katana Multi-Purpose Co-operative Society Ltd., and Othersand reference tothat case would suffice for present purposes. Fernando J., observed,“Although the court has a discretion, in appropriate circumstances, torefuse certiorari and mandamus on the ground of delay, that pleainvolves equitable considerations…. (at page 345) Kulatunga, J., in
Topa Sporting Goods (Pvt) Ltd. v.
SC The Commissioner of Labour and Three Others (G. P. S. de Silva, C.J.)97
a separate judgment citing S. A. de Smith, Judicial Review ofAdministrative Action, 4th Edition, p. 423-424 said, “Even where (asin England) time for making an application is provided by rules, delayby itself would not defeat an application. It is only a discretionary barto be applied, having regard to the conduct of parties, the issuesinvolved and substantial prejudice which may result in varying theimpugned order." (at page 352).
Ordinarily a court would be very slow to dismiss an applicationwithout issuing notice on the respondents on the ground of delay of ashort period of six months unless there are compelling circumstancessuch as grave and substantial prejudice caused to a party by reasonof such delay. To refuse certiorari solely on the ground of delay mayundermine the rule of law particularly where the decision is sought tobe quashed on the basis of want of jurisdiction. It seems to me thatthis was eminently a case where the court should have issued noticeand left it to the respondents to take the plea in their objections, if soadvised. I
I accordingly allow the appeal, set aside the judgment of the Courtof Appeal and direct the Court of Appeal to issue notice on therespondents and hear and determine the application.
There will be no costs.
RAMANATHAN, J. -1 agree.
BANDARANAYAKE, J. -1 agree.
TOPA SPORTING GOODS (PVT) LTD V. THE COMMISSIONER OF LABOUR AND THREE