HBS MOTORS (PVT) LTD

HBS MOTORS (PVT) LTD
Vs.
HEENKENDA

SUPREME COURT
B.ALUWIHARE P.C..J.
A.GOONERATNE J.
H.N.G.PERERA J.
SC APPEAL NO. 100/15
SC SPL. LA HC 254/14
HIGH COURT NO. 96/2014/ PC/ HCCA/ KY/RA
KANDY LT NO. LT/88/2013
23.06.2016

The Industrial Disputes Act - Industrial Disputes Special Provisions Act, No. 13 of 2013-Company's Act, No. 7 of 2007. Who could represent a Company when an Attorney at Law appears for the Company-Locus Standi-Revision -Section 3 of the Industrial Disputes Act - Revision - Shocks conscience of court - When should court exercise such powers- Natural person - legal person - Juristic person.

The Applicant- Respondent being an employee of the Employer filed an application in the Labour Tribunal urging unjust termination of employment. Labour Tribunal commenced the inquiry on 22.01.2014. The employer as well as the employee were represented by their respective Attorneys-at- Law. On 02.10.2014 an Attorney- at- Law appeared for the employer and one Wipularatne Banda (Respondent- Respondent to the instant application) represented the employee. Objection raised by Attorney- at- Law for Applicant that the said Wipularatne Banda was not a proper to represent the Employer. Labour Tribunal upheld the objection. Having moved in revision to the Civil Appellate High Court, the High Court did not exercise its revisionary jurisdiction.

On leave been granted,

Held:

1. Section 46 of the Industrial Disputes Act confers on trade union officials, employer representatives and other para- professionals, an equal right of representation along with licensed practitioners. If that be the case, when the employer is represented by a lawyer, the contention that a person nominated by the employer cannot present himself at the inquiry to assist the counsel on behalf of the employer is illogical.

Per Buvaneka Aluvihare P. C, J.

"In the instant case, the counsel who represented the employer had submitted that the employer is a juristic person. He had submitted further that Wipularatne is representing the company sequel to a Board resolution passed by the Board of Directors of the Employer Company (P13). It was brought to the notice of the learned President of the Labour Tribunal that Wipularatne had been granted with written authority to represent the Employer before the Labour Tribunal.

In terms of Section 186 of the Companies Act No. 7 of 2007 a Board of a company is empowered to delegate powers to a person and this person need not be an employee or a person who has some connection to the company."

Held further:

2. The criteria to be observed when a court exercises revisionary jurisdiction is, the legality of the order. When the order in question was clearly illegal, it is incomprehensible why the learned judge of the High Court did not exercise that jurisdiction and revise it. The reason given that exceptional circumstances are required, is specious at best and tantamount to refusal and reluctance to exercise its jurisdiction, whereas the order in question should have shocked the conscience of the court.

3. It is unfortunate that the President of the Labour Tribunal herself has lost sight of the provisions of the Industrial Disputes (Hearing and Determination of Proceedings) Special Provisions Act No. 13 of 2013.

The above Act had been enacted as the Legislature had noted the inordinate delay in disposing of applications made to Labour Tribunals and had thought it fit to enact a law to ensure expeditious disposal of such applications.

Held further:

4. It is trite law that "revision" being a discretionary remedy, a court exercising revisionary jurisdiction need not rectify every illegality to which the attention of the Court is drawn, in the order that is being canvassed before the court.

However, if the order that is being canvassed had been made in total disregard of the applicable statutory provisions, then the court must exercise its

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