K. NAGALINGAM, Petitioner and LAKSHM AN DE MEL (Commissioner of Labour) and

031-NLR-NLR-V-78-K.-NAGALINGAM-Petitioner-and-LAKSHM-AN-DE-MEL-Commissioner-of-Labour-and-.pdf


8HARVANANDA. J.—Nagalingam v. hakshman de Mel,
Corn/nuuitoner uj Labour
231
1975 Present: Tennekoon, C. J., Sharvananda, J., and
Gunasekera, J.
K.NAGALINGAM, Petitioner and LAKSHMAN DE MED(Commissioner of Labour) and 2 others, Respondents.
SC- 650/74—Application ;n the nature of a Writ of Certiorariunder Section 12 of the Administration of Justice Law No. 44 of
1973
termination nf Emnloyment of Workmen (Sr>e''ial Provision*) ArtNn. 45 1971—Order under Section 2—Validity of Order made btfCommissioner on the recommendation of his Assistant—Whether
232
SHARVANANDA, J.— Nagalingam v. Lakshman de Mel,
Comrnuunoner of Labour
provisions of Section 2(2) (c) are mandatory or directory—Participation in proceedings without raising objection tojurisdiction—waiver.
Where an application is made under Section 2 of theTermination ol' Employment of Workmen (Special Provisions)Act No. 45 of 1971 to terminate the employment of a workman, itis lawful for the Commissioner of Labour to delegate to anAssistant Commissioner of Labour th" fun^ion of ho'Hing theinquiry into such application. It is open to the Commissioner o£Labour to make the order under Section 2 on the recommendationmade by the Assistant Commissioner who held the inquiry.
Non-compli:i"c» v.’Ph the time limit stipulated by Section2(2) (c) of the said Act does not render the Order of thaCommissioner of Labour void.
“ Further the Petitioner, having participated in the nroiongedproceedings without any objection and having taken the chanceof the final outcome of th~ proceedings, is precluded from raisingany objection to the jurisdiction of the Commisiion^r of T,->hnuito make a valid Order after the zero hour. The jurisdictionaldefect, if anv, has been cured by the Petitioner’s consent and!acquiescence.”
APPLICATION for a Writ of Certiorari,
H. W. Jayawardena, with N. Satyendra, Chula de Silva, andP. Suntharalingam for the Petitioner.
K. M. M. B. Kulatvnge, Deputy Solicitor General, with G. E. Mde Silva, State Counsel, for the 1st and 2nd Respondents.
H. L. de SHva, with Mark Fernando and John Kitto for the3rd Respondent.
Cur. adv. vult.
December 10, 1975. Sharvananda, J.—
This is an application for a Writ of Certiorari to quash theorder dated 28.3.74 whereby, :n terms of sect:on 2 of the Ter-mination of Employment of Workmen (Special Provis:ons) ActNo. 45 of 1971. the Comm'ssioner of Labour has granted writtenapproval to the 3rd respondent-employer to terminate theemployment of the petitioner.
The petitioner joined the Department of Labour in 1946, andin November, 1962, was in the service of the Department as theAssistant Commissioner of Labour. While holding that post, heapplied to join the service of the Employers Federation of Ceylon,the 3rd respondent. On 29th November, 1962, he was apoointedto the post of Assistant Secretary under the 3rd respondent. Uponreceipt of the said appointment, the petitioner retired fromGovernment Serivce on the language issue with a pension andjoined the service of the 3rd respondent with effect from 1stJanuary, 1963. At the time of his appointment, the petitioner was
SHARVANANDA, J.— Nagalingam v. Ln.k/t'wnan de Mel,
Ctmminsioner of Labour
238
48 years old. The letter of appointment did not stipulate anyyet ring age. By letter dated 16th March, 1973, the 3rd respondentintimated to him that he had reached the age ot sixty on 10th. February, 1973, and that according to the policy of the Federation,he should have retired at the end of February, 1973, and that theBoard of Trustees of the Federation had decided to give himone year’s notice of retirement to expire on 31st March, 1974.As the petitioner did not consent to the retirement, the3rd respondent made application on the 18th of September,
to the Labour Commissioner under the provisions of section2 of the Termination of Employment of Workmen (Special Provi-sions) Act (hereinafter referred to as the Act) for his writtenapproval to terminate the employment of the petitioner from 31stMarch, 1974, on the retirement age. The aforesaid applicationwas inquired into by the 2nd respondent, who was at that timethe Assistant Commissioner of Labour. The petitioner resistedthe application on the ground that since no age of retirement wasspecified in his letter of appointment, he could serve as longas he was physically fit and his service was satisfactory. The2nd respondent gave the parties an opportunity to state theircase and make their submissions. The oral hearing before the2nd respondent commenced on the 14th of December, 1973, andwas concluded on the 28th of February, 1974. Both parties, with-out any protest or objection, participated in the inquiry. Theywere represented at the inquiry by counsel and all acquiescedin the inquiry dragging on till the end of February
The parties thereafter made written submissionsto the 2nd respondent. The copy of the written submissions filedon behalf of the petitioner is dated 14th March, 1974. On therecommendation of the 2nd respondent, the Commissioner ofLabour, by his letter dated 28th March, 1974, gave to the 3rdrespondent his written approval, in terms of section 2 of the Act,for the termination of the emoloyment of the petitioner witheffect from 31st March, 1974. The 3rd respondent has accordinglyterminated the petitioner’s services from 31st March, 1974.
By his present application dated 19th June, 1974, the petitionerhas moved this Court to quash the entire proceedings held bythe 2nd respondent and the order dated 28th March, 1974, madeby the 1st respondent, the Commissioner of Labour.
Mr. Jayawardena, appearing for the petitioner, urged twogrounds in support of his application.
One ground was that the inquiry into the 3rd respondent’sapplication under section 2 of the Act was conducted by the 2ndrespondent and that in the premisrs the 1st respondent hadno jurisdict:on to make theor^er complamed of. Section 12 of theAct provides that the Commissioner shall have power to hold
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8HARVANAXDA, J.—Nagilingnm v. Lakshman de Mel,
Oornrni-eioner Labour
such inquiries as he may consider necessary for the purposes of!the Act. Section 11(2) author ses the Commissioner to delegateto any officer of the Labour Department any power, function orduty conferred or imposed on him under the Act. Hence, itwas lawful for the Commissioner to have delegated to his assis-tant, the 2nd respondent, the function of holding the inquiry intothe 3rd respondent’s application. The ultimate order dated 23thMarch, 1974, (P12), though it has gone under the hand of the 1strespondent, was in fact, as a perusal of the original record dis-closed, made on the recommendation of the 2nd respondent. Inthe circumstances, there is no substance in this objection. Infact, Counsel for the petitioner, when it was pointed out to himthat the order only embodied the decision of the 2nd respondent,did not press the matter further.
The other ground which formed the main plank of Counsel’sargument was that the 1st respondent had admittedly made theorder P12 after the expiry of 3 months from the date of thereceipt of the application made by the 3rd respondent and thatthe order was in breach of the provisions of section 2(2) (c) of theAct and hence is ultra vires the powers of the Commissionerof Labour and is null and void. Counsel submitted that no validapproval could be given in terms of section 2 of the Act outsidethe 3 months from the date of receipt of the application madeby the employer that the Commissioner’s jurisdiction to grantapproval was conditioned by this time limit and that the provision!as to time was mandatory. His argument was that the delay,even if attributable to the parties, pso facto divested the Com-missioner of his jurisdiction to grant the approval and renderedinvalid his decision.
For a proper appreciation of the contention of Counsel, anexamination of the following provisions of the Act is necessary:—■
Sec. 2
No employer shall terminate the scheduled employment
of any workman without—
the prior consent in writing of the workman ;
the prior written approval of the Commissioner.
The following provisions shall apply in the case of the
exercise of the powers conferred on the Commissionerto grant or refuse his approval to an employer toterminate the scheduled employment of any workman :
such approval may be granted nr refused on appli-
cation in that behalf made by such employer ;
the Commissioner may. in his abso’ute rhscretion
decide to grant or refuse such approval;
ShARVANANDA. J.-—Nagalingan, v. Lakshman de Mel,
Commissioner of Labour
235
the Conmiss oner shall grant or refuse such approvalwithin three months from the date of receipt ofapplication in that behalf made by such employer ;
the Commissioner shall give notice in writing of
his decision on the application to both the employerand the workman ;
the Commissioner may, in his absolute discretion,
decide the terms and conditions subject to whichhis approval should be granted, including anyparticular terms and conditions relating to thepayment by such employer to the workman of agratuity or compensation for the termination ofsuch employment; and
(/) any decision made by the Commissioner under thepreced ng provisions of this sub-section shall befinal and conclusive and shall not be called inquestion in any Court, whether by way of writor otherwise.
Sec. 12
The Commissioner shall have power to hold such inqui-
ries as he may consider necessary for the purposes ofthis Act.
The Commissioner shall, for the purposes of any inquiry
under this Act, have all the powers of a DistrictCourt—
to summon and compel the attendance of witnesses;
to compel the production of documents.
Sec. 17
The proceedings at any inquiry held by the Commissionerfor the purposes of this Act may be conducted by theCommissioner in any manner not inconsistent withthe principles of natural justice which to the Commis-sioner may seem best adapted to elicit proof orinformation concerning matters that arise at suchinquiry.
The scheme of the Act thus provides for the holding of a fairand sufficient inquiry to precede the grant or refusal of thewritten approval referred to in section 2 of the Act. In the natureof things, this inquiry is bound to be spread out and to take time.The examination of witnesses and documents may go on for anumber of days. Witnesses may not turn up when summoned.Coercive processes may have to be employed to ensure theattendance of witnesses and the production of documents.Counsel appearing for parties will have to be heard. The inquiry
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SHARVANAXDA, J.-— Nagalingam v. Lakshman da Mel,
Commissioner oj Labour
must exhibit all the indicia of a fair trial. Through necessity ordefault of the inquirer, whether culpable or not, the inquirymay not be concluded within the period. With all these contin-gencies, did the Legislature postulate that the inquiry should becompleted and order thereon given within 3 months from thedate of the receipt of the aplication with an implied nullificationof all the proceedings for any disregard of the time limit ? Thereis no express provision in the Act indicative of the Legislature’sintention regarding the effect of any non-compliance. As isstated in Maxwell’s Interpretation of Statutes filth Ed. at page362) : “ When a statute requires that something shall be done, ordone in a particular manner, or form without express, y dee.aringwhat shall be the consequence of non-compliance, the questionoften arises: What intention is to be attributed by nference tothe Legislature ? Where indeed the whole aim and object of theLegislature would be plainly defeated if the command to do thething in a particular manner did not imply a prohibition to doit in any other, no doubt can be entertained as to the intention. ”It is trite law that it is the duty of the Court, in construing astatute, to ascertain and implement the intention of Parliamentas can be gathered therein. When Parliament prescribes themanner or form in which a duty is to be performed, or a powerexercised, it seldom lays down what will be the legal consequ-ences of failure to observe its prescriptions. The Courts musttherefore formulate their own criteria for determiningwhether the pocedural rules are to be regarded as mandatory,in which case disobedience will render void or voidable what hasbeen done, or as directory, in which case disobedience will betreated as an irregularity not affecting the validity of what hasbeen done. Judges have often stressed the impracticability ofspecifying exact rules for the assignment of a procedural provi-sion to the appropriate category. The whole scope and purposeof the enactment must be considered, and one must assess “ theimportance of the provis on that has been disregarded and therelation of that provision to the general object intended to besecured by the Act”—Smith Judicial Review of AdministrativeAction (2nd Ed. at page 126).
“ Where the prescriptions of a statute relate to the performanceof a public duty, and where invalidation of acts done in neglectof them would work serious general inconvenience or injusticeto persons who have no control over those entrusted with the dutyyet not promote the essential aims of the Legislature, suchprescriptions seem to be generally understood as mere instruc-tions for the giiidance and government of those on whom theduty is imnosed, or, in other words, as directory onTv. Theneglect of them may be penal, indeed, hut it does not affe"+ thevalidity of the act done in disregard of them. It has often been
81IAKVANAKDA, J.—Nagalirujam c. Lake ft man do Aid,Vomrms&iouer oj Labour
237
held, for instance, when an Act ordered a thing to be done by apublic body or public officers and pointed out the specific timewhen it was to be done, then the Act was directory only andmight be complied with after the prescribed time. ”
(Maxwell—11th Ed. at page 369).
To hold that non-compliance with the time limit stipulated bysection 2 (2) (c) renders the Commissioner’s order of approvalor refusal void will cause grave hardship to innocent parties.Parties who have done all that the statute requires of themshould not lose the benefit of the order because it was madeafter the final hour had struck with the passage of the 3 months.On the argument of Counsel for the petitioner, if the order wasmade on the last terminal date of the 3 months, the order is avalid order, but, if, for any unavoidable reason, the order couldnot, or was not given by that time, the entire proceeding was auseless exercise. In my view, Parliament is to be presumed notto have intended such an inequitable result.
“ When the provisions of a statute relate to the performance ofa public duty and the case is such that to hold null and void actsdone in neglect of this duty would work serious general incon-venience or injustice to persons who have no control over thoseentrusted with the duty and at the same time would not promotethe main object of the legislature, it has been the practice tohold such provisions to be directory only, the neglect of them,though punishable, not affecting the validity of the acts done. ”—per Sir Arthur Channell in Montreal Street Ry. Co. vs. Normandin(1917 A.C. 170 at 175).
The object of the provision relating to time limit in section
(2) (c) is to discourage bureaucratic delay. That provision is aninjunction on the Commissioner to give his decision within the
months and not to keep parties in suspense. Both the employerand the employee should, without undue delay, know the fateof the application made by the employer. But the delay shouldnot render null and void the proceedings and prejudicially affectthe parties, as the parties have no control over the proceedings. Itcould not have been intended that the delay should cause a lossof the jurisdiction that the Commissioner had, to give an effectiveorder of approval or refusal. In my view, a failure to complyliterally with the aforesaid provision does not affect the efficacyor finality of the Commissioner’s order made thereunder. Had itbeen the intention of Parliament to avoid such orders, nothingwould have been simpler than to have so stipulated.
Further, the petitioner, having participated in the prolongedproceedings without any objection and having taken the chanceof the final outcome of the proceedings, is precluded from raisingany objection to the jurisdiction of the Commissioner of Labour
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SHARVANANDA, J.—Nagnlingam v. Lakshman de Mel,
Outnm issiuner J Labour
to make a valid order after the zero hour. The jurisdictionaldefect, if any, has been cured by the petitioner’s consent andacquiescence. The petitioner had approbated the act of the 2ndrespondent in continuing to hold the inquiry after 18th December,1973. The right to impugn the proceedings has been iost by hiaacquiescence. “ Where nothing more is ihvolved than a mereirregularity of procedure, or (e.g.) non-compliance with statutoryconditions precedent to the validity of a step in the litigation ofsuch a character that if one of the parties be allowed to waivethe defect, or by conduct or inaction to be estopped from settingit up, no new jur sfiction is thereby i.npheiiy created and noexisting jurisdiction impliedly exiendei beyond its existingboundaries, the estoppel will be maintained and the affirmativeanswer of illegality will fail (Spencer Bower—Estoppel byRepresentation (2nd Ed.), section 142 at page 136) “Where ju-risdiction over the subject matter exists requiring only to beinvoked in the right way, the party who has invited or allowedthe Court to exercise it in a wrong way cannot afterwards turnround to challenge the legality of proceedings due to his owninvitation or negligence.”—Alagappa C'xitty vs. ArumugamChitty (2 C. L. Rep. 202). In the present case, the 1st respondenthad jurisdiction to enter upon the inquiry and give his order.The consent or lack of objection prevents the petitioner fromrelying on the irregularity and from complaining that the juris-d ction of the Commissioner was ousted by the time-bar. Had thepetitioner objected to the proceedings continuing after 18thDecember, 1973, the 3rd respondent might have made a newapplication which would have supplied a further 3 months' periodto complete the inquiry. But, the petitioner sensibly and realisti-cally represented “ Of course, that is not necessary ” andencouraged the 2nd and 3rd respondents to proceed with theinquiry beyond that date by refraining from objecting to thefurther proceeding. “ If a person having a right and seeing anotherperson about to commit, or in the course of committing an actinfringing upon that right, stands by in such a manner as reallyto induce the person committing the act, and who might other-wise have abstained from it, to believe that he assents to itsbeing committed, he cannot afterwards be heard to complainof the act.”.—per Thesiger L. J. in De Busache vs. Alt (1878)8 ch. D. 286 at 314. The petitioner’s right, if any, to certiorari has,in the circumstances, been lost by his acquiescence or impliedwaiver.
Though the petitioner has thus lost his right to impugn theproceedings held by the 1st and 2nd respondents, the conductof these respondents in not endeavouring to conform to the lawand failing to grant or refuse the approval within the 3 months asrequired by section 2 (2) (c) of the Act cannot be condoned.
Perera v. People's Bank
239
No explanation for the delay has been ever attempted. Publicofficials should seek to comply with the law. The 2nd respondentwas in charge of the proceedings. No reason has been adducedas to why the hearing of the inquiry commenced only on the14th December, 1973, when the application was made on 18thSeptember, 1973. One wonders as to how the Commissionerthought he would be able to complete the inquiry and give orrefuse his approval by 18th December, 1973, in terms of section.2(2) (c) having commenced his inquiry so late as on 14thDecember, 1973.
The petitioner’s application accordingly is refused with costsfixed at Rs. 500 payable to the 3rd respondent. The 1st and 2ndrespondents will not, in the circumstances, be entitled to anycosts.
Tennekoon, C.J.—I agree.
Gunasekera, J.—I agree.
Application refused.