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NLR - Vol.77- P167

NLR - Vol.77, Page No - 167

1971 Present: H. N. G. Fernando, C. J., and Sirimane, J.

G. E. PITTER, Petitioner, and D. DAHANAYAKE(President, Labour Tribunal) and 3 others, Respondents

S.C. 859/70-Application for a Mandate in the nature of a Writ
of Certiorari and/or Mandamus

Industrial Disputes Act-Application under s. 31 B-Service of notice to a party-Procedure when notice sent by registeredpost
is not served-Industrial Disputes Regulations, Regulation 18.

Where an application for relief under section 31B of the Industrial Disputes Act was dismissed by the Labour Tribunal onthe
ground that the applicant was not present on the day of inquiry, after a notice sent byregisteredposttotheapplicant
about the date of inquiry had been returned undelivered to the office of the Tribunal-

Held, that, when a notice sent to a person by registered post is not delivered, the Secretary oftheTribunalhasaduty
under Regulation 36 of the Industrial Disputes Regulations to cause thenoticetobeaffixedattheentrancetothat
person's last known place of abode. It is only if a person fails to appear after notice is effected by that method, thatthe
Tribunal may be entitled to deal with his matter in his absence.

APPLICATION for a Writ of Certiorari and/or Mandamus.
W. E. M. Abeysekera, with M. W. Amerasinghe, for the petitioner.
K. P. V. Karunaratne, Crown Counsel, for the 2nd respondent.

June 13, 1971. H. N. G. Fernando, C. J.-

The present petitioner had made an application to the Labour Tribunal under Section 31 (b) of theIndustrialDisputesAct.
The matter Was apparently taken up for inquiry, and the Tribunal thereafter made the following Order : -

" The notice sent to the Applicant not being served it has been returned to the office. On the day of InquirytheApplicant
was not present before the Tribunal.

The application is dismissed."

As stated in the Order itself, it would appear that notice of the date fixed for hearing of the Petitioner's applicationhad
not in fact been served on the Petitioner. The file of the Tribunal shows that anoticesentbyregisteredposttothe
Petitioner had been returned undelivered to the office of the Tribunal.

The relevant provision as to the service of such notices is contained in Regulation 36 oftheregulationsmadeunderthe
Act. Regulation 36 provides that the service on a person of any notice,summons......................................under
the Act shall beeffectedbyhandorbyregisteredpostorbyaffixingsuchnotice,
summons...................................... at the entrance to his last known place of abode.

The third method of service prescribed in Regulation 36 is one which is prescribed in several other contexts instatutelaw
as an alternative to direct service, in cases where direct service is not possible. It seems to us that whenanoticesent
by registered post is not delivered, the Secretary of the Tribunal has a duty to cause the notice to be served by thisthird
method. It is only if a person fails to appear after service is effected by that method, that the Tribunalmaybeentitled
to deal with the matter in the absence of that person.

The Order dismissing the Petitioner's application is set aside. The Tribunal will take necessarystepstofixadateof
hearing, after notice to the proper parties, and to inquire into the Petitioner's original application.

Sirimane, J.-I agree.

Order set aside:

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