118-NLR-NLR-V-74-UNITED-PLANTATION-WORKER’S-UNION-Appellant-and-THE-SUPERINTENDENT-CRAIG-ESTATE.pdf
H. N. C- FERNANDO, C.J.—Piyascna v. The Queen
499
1971Present: Samerawickrame, J., and Thamotherani, J.
UNITED PLANTATION WORKERS’ UNION, Appellant, and THESUPERINTENDENT, CRAIG ESTATE, BANDARAWELA,
Respondent
,5. C. 47/69 (with S. C. 4S(69)—Labour Tribunal B. 2234
Labour Tribunal—Dale oj order made by it—acquirement of prior notice oj it to theparlies—Failure of Tribunal to comply with such requirement—liesuitingposition if appeal is filed out of lima—Maxim actus curiao nemincm gravabit—Industrial Disputes Act (Cap. 131), ss. 31 C (1) (2), 31 D (3) (4).
Section 31 C (2) of the Industrial Disputes Act, which enables a Labour Tribunalto lay down tlio procedure to be observed by it in the conduct of an inquiry,is wide enough to impose upon it tho obligation to givo the parties nctico of tlioparticular day on which its order or decision will bo made, though it is notnecessary that tho order should bo pronounced in the presence of the parties.Tho day on which order is mode after such notice will determine thocommencement of the appealable period of 14 days specified in section 31 D (3)of tho Act.
When an appeal is filed out of time on account of tho failure of tlio Tribunalto givo prior notice to tho parties about tho date of its order, the appeal willnevertheless bo heard in accordance with the jjrinciplc actus curiae ncminemgravabit.
The Superintendent, Mulana Estate, Makandura v. Jan is Appu Diddcnipota(71 N. L. R. 332) overruled.
.^(PPEAL from an order of a Labour Tribunal.
Miss Suriya Wickremasinghc, for the applicant-appellant-
S. C. Crosselte-Thambiah, with A. M. Coomaraswamy and K. Thevarajah,for the employer-respondent.
(1963) 65 N. L. It. 121.
Cur. adv. vult.
500SAMERAWICKRAME, J.— United Plantation Workers' Union v.
The Superintendent, Craig Estate, Eandarauela
November 16,1971. Samerawickrasie, J.—
Learned counsel for the emploj'er-respondent raised the objectionthat the appeal has been filed out of time. It was common ground thatthe date of the order was 20th March, 1969 and that if time for filingthe appeal ran from that date, the appeal was out of time by one clay'.Learned counsel for the appellant stated, the parties were not givennotice and were unaware that the order was to be made on 20.3.69.A certified copy of the order was posted to the appellant by the Secretaryon 23.3.69 and was received by it on the following day. She submittedthat time for filing the appeal should not run from a date on which herclient was not merely unaware but had no opportunity of ascertainingthat order had been made.
In Superintendent, Mvilana Estate, Makandura v. Jam's Ajypu1— wherethe facts were on all fours with those in this case—De Ivretser J., heldthat the appeal had been filed out of time. He was not unaware that theview he had taken might lead to an unjust result in some cases but hestated that the remedy was an amendment to the relevant pro vision.When this appeal came up before Alles, J., he doubted the correctnessof He Hretser J.’s decision and referred this appeal for decision by aBench of two Judges. The appeal has thus come up before us.
The relevant provisions are ss. 31 C (1) and (2), 31 D (3) and (I) of theIndustrial Disputes Act (Cap. 131) which are as follows :—
“ 31C. (1) Where an application under section 31B is made to a.labour tribunal, it shall be the duty of the tribunal to makeall such inquiries into that application and hear all such evidenceas the tribunal may consider necessary, and thereafter makesuch order as may appear to the tribunal to be just and equitable.
(2) Subject to such regulations as may be made under section39 (1) (ff) in respect of procedure, a labour tribunal conductingan inquiry may lay down the procedure to be observed by it inthe conduct of the inquiry.
31D. (3) Every petition of appeal to the Supreme Court shall bearuncancelled stamps to the value of five rupees and shall befiled in the Supreme Court within a period of fourteen daysreckoned from the date of the order from which the appeal ispreferred.
In computing the time within which an appeal must bepreferred to the Supreme Court the day on which the orderappealed from was made shall be included, but all Sundaysand public holiday's shall be excluded.” I
I think the words “ procedure to be observed by it in the conduct of theinquiry ” in s. 31 C (2) should be given a wide interpretation and mayinclude the giving of notice of the day on which order will be made if"such notice is necessary.
1 (10GS) 71 N. L. R. 332.
SAMERAWTCKRAME. J.— Under! Plantation Workers' Union v. 501
The Superintendent, Craig Estate, Pandarau cla
It may be useful fo consider first what the position is on the provisionsof the Act. apart from any regulations that may have been made. It isobviously necessary that a party adversely affected by an order shouldbe aware of the order for at least two reasons. He has to comply withit; he may bo directed in the order to reinstate the workman forthwith.Again, he has a limited time within which he may aj^peal if ho isdissatisfied with the order. The procedure adopted by the LabourTribunal under s. 31C (2) should, therefore, be such that the parties willbe aware of the making of the order. In respect of parties to an actionin a Court this is done by the requirement that the order should bedeli%rered or pronounced in open court in the presence of parties or afternotice to them. In the absenco of any express provision to that effect-the pronouncing of the order in the presence of parties is not necessaryin respect of orders made on applications to a labour tribunal. Noticeto the j>arties that the order will be made on a particular day will besufficient to afford them, or either of them, the opportunity of ascertainingthe purport of the order. I am therefore of the view that the procedureshould include notice to the parties of the day on which order will bemade. This may appropriately be done by giving a date for the orderat the conclusion of the hearing of evidence or if no date is then givenfor the order or if the order is not made on the date given-then noticemay be given to the parties of the date later fixed for that purjrose.
It is now necessary to consider whether the regulations or any ofthem has altered the position. The relevant regulation 33 of theIndustrial Disputes Regulations, 195S, published in Government GazetteExtraordinary No. 11,6SS of 2nd March, 1959, reads :—
“ Every order or decision of a Labour Tribunal shall be made inwriting. The Secretary shall notify the applicant and the employerof the order or decision by forwarding a certified copy thereof. Acertified copy of such order or decision shall also be sent to theCommissioner by the Secretary.”
Though this regulation does deal with the giving of notice of an order,an examination of it shows that it provides for the communication of theorder which is to be done by sending a certified copy of it. It does notrelate to prior notice of the making of an order. It has been suggestedby the one side and not denied by the other that it is not be3'ond the paleof possibility that in an extreme ease the certified copy of the order mayreach the party affected after the time within which an appeal may befiled has lapsed. Apart from that, in all cases the party adverselyaffected by the order will in fact have less than the 14 days allowed tohim by law within which to prefer an appeal. What is required to bedone by this regulation, therefore, does not obviate the need for noticeto be given to the parties of the proposed making pf the order. It -willbe observed that s. 31C (2) does not say, " until regulations are made ”but “ subject to such regulations as may be made While a labourtribunal has therefore to observe the regulations, it is not absolved from
502
SA3IERAWTCIvRAiIE, J.— United Plantation TPorkers' Union v.
The Superinlen/lent, Craif) Estate, Baruhiraiicla
taking such other steps of procedure ns are necessary. I am, therefore,of the view that the regulations have not altered the position which Ihave arrived at upon a consideration of the relevant provisions of theAct, namely, that a labour tribunal should give the parties notice of theday on which the order will be made though, as I have already indicated,it is not necessary that the order should be pronounced or made in theirpresence.
It is necessary to consider the effect of making an order on a particularday without prior notice to the parties that it will be made on that day.The order will not be void. There is no breach of any express provisionof law but only the adoption of a faulty procedure. [Nevertheless, onthe principle, “ actus curiae nemincm gravabil ”, no obligation ofcompliance with the order will arise and no time for making the appealfrom it will run against a j>arty adversely affected by it till notice hasbeen given to him that the order had been made. On this basis theappeals filed on this matter as well as in the connected matter have notbeen filed out of time.
De Kretser, J., lias referred to North-Western Blue Line Bus Co. Ltd.v. Green Line Omnibus Co. Ltd..1. In that case Sansoni J., had to considerthe effect of certain sections of the Motor Traffic Act, II of 1951. Section211 (1) provided for a decision and notice of the decision in writing tobe given by the Secretary to the parties. Section 212 (2) provided that
“ the petition of appealshall be presented to the tribunal by the
appellant within 21 days after the date of the tribunal’s decision againstwhich the appeal is ^referred There was also in the Act anotherprovision in regard to an appeal from the Commissioner’s decision whichexpressly provided that it should be made within fourteen days of theservice on the appellant of the notice of determination. In view of thedistinction in the two cases he held that time ran in the ease of an appealagainst the decision of the tribunal from the date of the decision itself.There does not appear to have been any provision corresponding tos. 31C. (2). The statutory provisions Sansoni J., had to consider werenot identical and his decision is nob applicable to the matters in theinstant case and is therefore distinguishable. De Kretser J., cited apassage from the judgment of Sansoni J., in that case and consideredthat mutatis mutandis it applied in all respects to the case before him.
' With respect, I am unable to agree. I am therefore not in agreementwith the decision in The Superintendent, Mulana Estate, Makandurav. Janis Appu Diddenipota (supra).
I hold that the appeal in this case as well as the appeal in the connectedcase S.C. IS/’69 have been filed in time. These appeals will now belisted before a single Judge in due course for disposal.
Thamothbium, J.—I agree.
Appeal to be listed in due course for disposal.
1 (1054) 56 N. E. It. 110.