008-NLR-NLR-V-73-P.-DANNY-Appellant-and-J.-K.-P.-WILLIAM-Respondent.pdf
SAMERAWICKRAME, J.—Danny c. William
23
Present : Samerawickrame, J.
P.DANNY, Appellant, and J. K. P. WILLIAM, RespondentS. G. 140/68—Labour Tribunal Case No, Of3887
Labour Tribunal—Date of inquiry—Absence of respondent by reason of accident ormischance—Liability of order of the tribunal to be set aside in appeal.
Where an application before a Labour Tribunal has been concluded in theabsence of tho respondent on tho date of inquiry, the order of the tribunalmay bo formally vacated in appeal if it is shown that the respondent wasprevented by accident from appearing on the inquiry date and that, by reasonof circumstances beyond the control of the tribunal and of the parties, an orderlias been made that is not just and equitable.
A.PPEAL from an order of a Labour Tribunal.
A. G. Nadarajah, for the respondent-appellant.
S. Gunasekera, for the applicant-respondent.
Cur. add. vult.
October 1,1969. Samerawickrame, J.—
The respondent-appellant states that the inquiry into this matterwas fixed for 6th June, 196S, and on the night of the 5th he suffered afracture of the elbow of his left arm. The next morning he went to a
24
SAMER AWJCKRAMK, J.—Danny r. William
specialist aiul had his arm attended to and by the time lie came to theoffice of the Labour Tribunal the inquiry had been concluded. He setout these facts in the petition of appeal. He has also submitted anaffidavit along with a medical certificate from a ayurvedic physicianfrom whom he obtained treatment. Notice of the affidavit had beengiven to the applicant-respondent but the facts stated have not beencontroverted.
Counsel for the applicant-respondent submitted that the respondent-appellant should have in some way informed the tribunal of the factof his inability to appear and the reason for it-. The appellant was notrepresented by a lawyer through whom he could have conveyed thisfact to the tribunal. While it would have been desirable that he shouldhave made some effort to inform the tribunal before the inquiry began,I do not think that in the circumstances he should be shut out fromobtaining relief by his failure to do so.
In a situation which is similar but not identical, Jenkins, L.J. inGrimshaw U. Dunbar 1 stated :—
“ Be that as it may, a party to an action is prima facie entitled tohave it heard in his presence. He is entitled to dispute his opponent’scase and cross-examine his opponent’s witnesses, and he is entitledto call his own witnesses and give his own evidence before the court.If by some mischance or accident a party is shut out from that rightand an order is made in his absence, then common justice demands,so far as it .can be given effect to -without injustice to other parties,that that litigant who is accidentally absent should be allowed tocome to the court and present his case .”
It would appear to follow that the fact that the appellant was deprivedof the rights referred to in this dictum by reason of his absence hasresulted in a finding against him that cannot be regarded as just andequitable. The tribunal is, of course, in no way responsible in that itgave the appellant notice of the hearing and was unaware that theappellant had been prevented by the accident from appearing. It wouldappear therefore that by reason of circumstances bejond the control ofthe tribunal and of the parties an order has been made that was notjust and equitable.
The applicant-respondent is entitled to be compensated for the expensesof the trouble tliat he has in curred in respect of the proceedings that wouldbo rendered abortive if the appeal is allowed. I accordingly order theappellant to pay to the applicant-respondent a sum of Rs. 60 as costs.
I formally, set aside the order of the Labour Tribunal and send thematter for inquiry and adjudication on the application made to it bythe applicant-respondent. There will be no costs of appeal.
Order formally set aside, y1 {1953) 1 A. E. B. 350 at 355.