012-SLLR-SLLR-1981-1-ALBERT-v.-VEERIAHPILLAI.pdf
110
Sri Lanka Law Reports
(1981) 1S.L.R.
ALBERT
v.VEERIAHPILLAI
SUPREME COURT.
SAMARAKOON, C. J., SHARVANANDA, J. AND WANASUNDERA, J.
S.C. APPEAL 73/80—C.A. 1644/79 REV.- L. T. HATTON K/4330.
SEPTEMBER 2,1981.
Labour Tribunal- Vacation of earlier order made without jurisdiction—inherentjurisdiction of Tribunal to vacate such order-Naturai justice—Subsequent orderdirecting reinstatement of applicant—Appeal therefrom dismissed for want ofappearance—Effect-Power of Supreme Court to allow grounds of appeal not set outin application for leave to appeal—Circumstances when that power will be exercised—Articles 118 and 127 of the Constitution.
The Labour Tribunal on 12th December, 1966, vacated an ex-parte order made by itearlier and in so doing it purported to exercise jurisdiction under regulation 29 madeunder the Industrial Disputes Act. This regulation however enabled the Tribunal onlyto correct clerical errors and mistakes specified therein. The order vacated was one bywhich the applicant’s application to the Tribunal was dismissed for want of appearanceand the reason for vacating it was that the applicant had subsequently satisfied theTribunal that the reason for his default was that he had no notice of the hearing.
On a subsequent date the applicant was present but the respondent though he hadnotice of the date was absent and the inquiry proceeded ex-parte. The Labour Tribunalthen made order directing the reinstatement of the applicant. The respondent appealedfrom the said order to the Supreme Court (as formerly constituted) but this appeal wasdismissed for want of appearance.
Held
The authority to vacate an earlier order is attributable to the inherent jurisdiction ofthe Tribunal to set aside such order if it had been made without jurisdiction in as much asthe breach of principles of natural justice goes to jurisdiction and renders an order ordetermination made in proceedings of which the person against whom the order ordetermination was made has had no notice, void.
Further, the appeal preferred by the respondent to the Supreme Court having beendismissed* the Supreme Court must be deemed to have rejected the respondent'sargument canvassing the Tribunal's order of 12th December, 1966 whereby it vacatedits earlier ex-parte order and to have affirmed the validity of the said order of theTribunal. The respondent being bound by the said judgment of the Supreme Courtis precluded from reagitating the question of authority of the Tribunal to vacate theex -parte order of dismissal made by it.
Held further
The cumulative effect of Articles 118 and 127 of the Constitution enables the SupremeCourt to allow an appellant to urge before it grounds of appeal other than the one onthe basis of which the Court of Appeal granted leave, if the material on record warrantsthe determination of the same, subject however to the limitation that it may not permita party to raise a new point if the other party has had no proper notice of the newground, or would suffer grave prejudice by the belated stage at which it is raised.
sc
Albert v. Veeriahpillai (Sharvananda, J.)
777
Casas referred to
Sri Lanka Ports Authority v. Peiris 17981) 1 Sri L.R. 107,
Craig v. Kanseen, 11943) 1 All E.R. 108
Kofi Forfie v. Seifah, (1958) A.C. 59; (1958) 2 W.L.R. 52; (1958) 1 All E.R. 289n.(4I Pi;iris v. The Commissioner of Inland Revenue, (1963) 65 N.L.R. 457.
(5) Nagalingam v. Ledchumipillai, (1951) 54 N.L.R. 28.
APPEAL from a judgment of the Court of Appeal.
N. R. M. Daluwatte, for the applicant-appellant.
V. S. A. Pullenayagam, with R. Manickavasagar and Miss Mangalam Kanapathipillai, forthe respondent.
Cur. adv. vu/t.
September 23, 1981.
SHARVANANDA, J.
By his application dated 6th July, 1965, the applicant-appellantapplied to the Labour Tribunal for relief against the terminationof his services by the employer-respondent. The application wastaken up for inquiry on 2nd October, 1966. On that date therespondent wfis present, but the applicant was absent. TheTribunal, by its order dated 31st October, 1966, dismissed theapplication for want of appearance. The applicant, however, laterappeared before the Tribunal and satisfied the Tribunal that thereason for his default was that he had had no notice of the hearingon 2nd October, 1966. On it being so satisfied, the Tribunal madeorder dated 12th December, 1966, vacating its earlier order ofdismissal of the application and restored the application to the rollof pending inquiries. The hearing of the application was put offon a number of dates as the respondent was away in India and wasunable to appear. Finally, on 3rd August, 1970, the matter wastaken up for inquiry. On that date the applicant was present, butthe respondent, though he had notice of the date, was absent. Theinquiry proceeded ex-parte. By its order dated 10th September,1970, the President, Labour Tribunal, directed, inter alia,there-instatement of the applicant. The respondent thereuponpreferred an appeal to the Supreme Court from the said order. Theappeal came up for hearing before the Supreme Court on 25thJanuary, 1972. Neither party was present and the appeal wasdismissed. The respondent did not give up. By making frivolousapplications to the Tribunal and appealing to the Supreme Courtfrom the orders of the Tribunal, the respondent has, to date,succeeded in stalling the enforcement of the order of the Tribunal
112
Sri Lanka Law Reports
(1981} 1S.L.R.
dated 10th September, 1970. In 1979 his ingenuity suggested anew course.
By his application dated 13th August, 1979, the respondentmoved the Court of Appeal to revise the aforesaid orders of theTribunal dated 12th December, 1966 and 10th September, 1970.He succeeded in persuading that Court to hold with him. TheCourt of Appeal, by its judgment dated 5th November, 1980, heldthat the order dated 12th December, 1966, by which the Tribunalvacated its earlier order dated 31st October, 1966, entered fordefault of appearance was null and void, as having been madewithout jurisdiction inasmuch as Regulation 29 of the IndustrialDisputes Act under which the President, Labour Tribunal,purported to vacate his earlier order did not give jurisdiction tothe Labour Tribunal to vacate such an order. The Court of Appealwas of the view that since the order dated 12th December, 1966,was made without jurisdiction, the subsequent order made on10th September, 1970, was also made without jurisdiction andwas therefore void. The applicant appellant has now, with theleave of the Court of Appeal, preferred this appeal to this Courtfrom the order allowing the employer-respondent's revisionapplication.t
At the outset of the hearing of this appeal, counsel for therespondent stated that he was constrained to raise a preliminaryobjection to the hearing of the appeal. He submitted that theCourt of Appeal had granted leave to Appeal under Article 128(1)of the Constitution as "there was a substantial question of lawinvolved, inasmuch as whether the Labour Tribunal had thejurisdiction to vacate an order that it had made on the ground ofdefault of appearance of any particular party concerned". Hecontended that it is not open to the appellant to agitate any otherquestion of law than the one which, in the view of the Court ofAppeal, was involved in the appeal. He also submitted that theappellate jurisdiction of this Court is confined to the adjudicationof the question of law stated by the Court of Appeal and that theappellant cannot canvass any other question. He argued that if thisCourt hears new contentions or points of law other than thatwhich, in the view of the Court of Appeal, warranted leave toappeal and sets aside the judgment appealed from on those newgrounds, it would, in effect, be exercising powers of revisioninf excess of the jurisdiction vested in it by the Constitution. Inmy view this objection of counsel for the respondent is without
CA
Albert v. VeeriahpUlai {Sharvananda, J.)
113
merit. Articles 118 of the constitution provides that "the SupremeCourt shall be the highest and final court of record in the Republicand shall, subject to the provisions of the Constitution, exercise,inter alia, final appellate jurisdiction." Appellate jurisdiction maybe exercised by way of appeal or revision. Article 128 of theConstitution prescribes how the appellate jurisdiction of thisCourt is invoked by way of appeal. The leave of this Court or ofthe Court of Appeal is a sine qua non for a party to come to thisCourt by way of appeal. But once leave is granted, on whateverground it be, the appeal is before this court and this Court is seisedof the appeal. Its appellate jurisdiction extends to the correctionof all errors in fact or in law which shall be committed by theCourt of Appeal or any Court of First Instance (vide Art. 127 ofthe Constitution). Therefore, it is competent for this Court topermit parties to bring to its notice errors of law or of fact andraise new contentions or new points of law, or suo motu to raisethem if there is proper foundation for them in the record. Thus,this Court will allow an appellant to urge before it groundsof appeal not set out in the application for leave if the materialon record warrants the determination of same. This Court is nothamstrung by the fact that the Court of Appeal had not grantedleave to appeal on the ground urged before the Supreme Court.This Court however, doing justice between the parties, may notpermit a party to raise a new point if the other party has had noproper notice of the new ground, or would suffer grave prejudiceby the belated stage at which it is raised. The appellate jurisdictionof this Court is very wide in its amplitude, as it should be, it beingthe final Court of Appeal. The narrow construction contended forby Counsel erodes its width and usefulness. What I stated inSri Lanka Ports Authority v. Peiris (1) is apposite in this context:
"Leave to appeal is the key which unlocks the door to theSupreme Court, and once the litigant has passed through that,door, he is free to invoke the appellate jurisdiction of this Courtfor the correction of all errors in fact and/or in law which have.been committed by the Court of Appeal or any Court of FirstInstance. This Court, however, has the discretion to impose■reasonable limits to that freedom.”
In my view the Court of Appeal has misdirected itself on thequestion of the jurisdiction of the Labour Tribunal to set aside itsorder dated 31st October, 1966. According to its judgment, theTribunal's jurisdiction to alter orders made by it rested only on
114
Sri Lanka Law Raports
(1981) 1S.LR.
Regulation 29 of the Industrial Disputes Act and the Tribunal hadno power other than the power conferred on it by that Regulationto alter or vacate its orders. This Regulation 29 enables a LabourTribunal only to correct clerical errors and mistakes specifiedtherein. This regulation does not vest any jurisdiction on a LabourTribunal to make an order vacating an earlier order made by it.But that does not mean that the Tribunal has no jurisdiction todo so. The Court of Appeal has not addressed its mind to theinherent jurisdiction of the Tribunal to set aside the order ofdismissal for default of appearance on the part of the applicantwhen the applicant had no notice of the hearing. Breach ofprinciples of natural justice goes to jurisdiction and renders anorder or determination made in proceedings of which the personagainst whom the order or determination was made has had nonotice, void. As the applicant had no notice of the hearing on 2ndOctober, 1966, the proceedings of that date are a nullity, and theTribunal had, in the circumstances, no jurisdiction to make anorder dismissing the application of the applicant. Hence the orderof dismissal dated 31st October, 1966, was made withoutjurisdiction and the Labour Tribunal had the inherent jurisdictionto set aside that order, on it being satisfied that the applicant hashad no notice of the hearing. A Tribunal has inherent jurisdictionto set aside a judgment or order which it had delivered withoutjurisdiction. As stated by Lord Greene M. R. in Craig v. Kanseen (2):
"A person who is affected by an order which can properlybe described as a nullity is entitled, ex debito justitae to haveit set aside. So far as the procedure is concerned, it seems to methat the Court in its inherent jurisdiction can set aside its ownorder and that it is not necessary to appeal from it."
The above statement of the law was quoted with approval by thePrivy Council in Kofi Forfie v. Seifah (3).
•
The Tribunal thus had the inherent power to declare theproceedings of 2nd October, 1966, a nullity. The fact that theTribunal'had incorrectly referred to Regulation 29 of the IndustrialDisputes Act for its jurisdiction to make the order of vacationdoes not vitiate the order.The authority to vacate its earlier order,which was a nullity, is attributable to another source, viz., theinherent jurisdiction of the Tribunal to set aside an order madewithout jurisdiction. By virtue of this authority the Tribunal hadthe power to do the thing that it did. The exercise of a power will
CA
Albert k Veeriahpillai (Sharvananda, JJ
ns
be referable to a jurisdiction which confers validity upon it andnot to a jurisdiction under which it will be nugatory. (Peiris v.The Commissioner of Inland Revenue (4)). In my view the Courtof Appeal was in error in holding that the order of 12th December,1966, was made without jurisdiction.
The Court of Appeal has further overlooked the fact that therespondent had preferred an appeal to the Supreme Court fromthe final order made by thfe Labour Tribunal on 10th September,1970, and that the appeal was dismissed by the Supreme Court.The Court of Appeal has not appreciated the legal significance ofthis dismissal. When an appeal is dismissed, there being noappearance for the appellant, the dismissal of the appeal must beregarded as involving the rejection of all the arguments which mighthave been raised at the hearing of the appeal. The absent partymust bear the consequences of his own laches (videNagalingam v.Ledchumipil/ai (5).) The effect of the Supreme Court judgmentdismissing the respondent's appeal was that the Supreme Court,should be deemed to have rejected the respondent's'argumentcanvassing the Tribunal's order of 12th December, 1966, and tohave affirmed the validity of that order.
The respondent is bound by the judgment of the SupremeCourt dated 25th January, 1972, affirming the order of theLabour Tribunal dated 10th September, 1970, which proceededon the basis that the order of 12th December, 1966, was a valid .order. In the circumstances, the respondent is precluded fromre-agitating the question of the authority of the Tribunal tovacate the ex-parte order of dismissal made by it.
I allow the appeal, set aside the judgment of the Court ofAppeal and dismiss the respondent's revision application. Therespondent shall pay the applicant-appellant the costs of thisappeal and of the revision application in the Court of Appeal.
There has been undue delay in the enforcement of the orderof the Labour Tribunal dated'10th September, 1970. I directthat steps be taken to enforce the said order without anyfurther delay.
SAMARAKOON, C. J.-l agree.
WANASUNDERA, J.-l agree.
Appeal allowed.
J. P. de Almeida,Attorney-at-Law!