Legal Services and Laws of Sri Lanka

SLR-1981 Vol.1-P350

SLR - 1981 Vol.1, Page No - 350







S. C. APPEAL NO. 79/80


L. T. NO. 13/6716 - 25/97

OCTOBER 28,1981
Writ of Certiorari - Writ Jurisdiction - order refusing writ to quash order permitting amendment - is an order refusingwrit
a final order or intericoutory order? -Articles 128 (1) and (2) and 140 of the Constitution.

The power to issue writs like Certiorari vested by Article 140 of' the Constitution in the Court of Appeal isasupervisory
power and not an appellate jurisdiction. The jurisdiction in respect of writs is anexceptionaloneandthegrantingor
refusal of writ is a final order within the meaning of Article 128(11 of the Constitution and not an inter-.locutoryorder
in respect of which leave to appeal is granted under Article 128(2) by the Supreme Court.

Preliminary objection to appeal from judgment and Order of. Court of Appeal
K. Kanag - lsvaran for Petitioner-appellant.
S.Mahenthiran for 2nd Respondent-Respondent.
November 13, 1981
The second Respondent, the Ceylon General and Industrial Workers' Union (hereinafter referred to as the Union)presented10
applications on behalf of its members to the LabourTribunalNo.13allegingwrongfulandunjustifiedterminationof
employment. The Respondent to each application was the "Tamil University Movement" of No. 16, FountainHouseLane,Colombo
10. The Secretary of the Movement filed answer pleading inter alia that "the application cannotbemaintainedagainstthe
Tamil University Movement and it has been filed against the wrong party". At the. inquiry the Secretarycontendedthatthe
Movement was neither a juristic nor a natural person and therefore the application could not be maintained in law. TheUnion
then moved to amend the Caption to the applications andthePresidentgrantedtheUniontwoweekstimetomakethe

After a long delay -amended applications were filed in which the Appellant, the Board of TrusteesoftheTamilUniversity
Movementwas named as the Respondent. The Appellant objected to this amendment andmovedthattheoriginalapplications
and' the amended applications be dismissed. The President, by his order of4thApril,1979,allowedtheamendment.The
Appellant thereupon applied to the Court of Appeal for a Writ ofCertioraritoquashtheOrderoftheTribunal.This
application was refused by the Court of Appeal. It also made a further order allowing the amendment. Leave to appeal tothis
Court was sought from and allowed by the Court of Appeal. This appears to have been done in terms of Article128(1)ofthe
Constitution. Counsel for the Union has taken an objection in limine to the hearing of thisappeal.Hecontendsthatthe
Order of the Court of. Appeal is an interlocutory Order which could not be the subjectofanapplicationororderunder
Article 128(1) but an interlocutory Order in respect of which leave to appeal could only have been made in termsofArticle
128(2) and leave granted by the Supreme Court.

We have heard a lengthy and interesting argument by opposing Counsel on theinterpretationoftheprovisionsofArticle
128(1) and (2) of the Constitution. Counsel for the Union argued that this order was not a "final order orjudgment"within
the meaning of Article 128(1). He contends that in arriving at a decision as to whether an order isfinalorinterlocutory
recourse must be had td the nature of the original order made by the Labour Tribunal. He states that the Order of theLabour
Tribunal was an incidental one which did not finally decide 'the dispute between the parties forthepurposeofresolving
which the application was made by V Union. He called in aid decisions of the. former Supreme Court in respect ofappealsto
the Privy Council. These are not helpful in deciding this matter because Rule 1(a) of theScheduletotheAppeals(Privy
Council) Ordinance (Chapter 100) makes the final order referable to the matter in, dispute between the parties ortheclaim
in respect of the property or civil right pleaded. The nature of the order has therefore to begarneredfromtheoriginal
action itself. However I do not need to make a decision on this aspect of the matter in view of the opinion I have formed.

The Writ was applied for in terms of Article 140 of the Constitution which reads thus:
"140. Subject to the provisions, of the Constitution, the Court of Appeal shall have full power and authority to inspectand
examine the records of any Court of First Instance or tribunal or other' institution, and grant and issue, according tolaw,
orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warrantoagainstthejudgeofany
Court of First Instance or tribunal or other institution or any other person."

This is a supervisory power and not an appellate jurisdiction. The matter has not come up to the Court of Appealbywayof
appeal from the Order of the Labour Tribunal, but it has originated in the Court of Appeal itself by virtue ofwhatmaybe
termed an original jurisdiction of that Court. In respect of applications for Writs of HabeasCorpusorQuoWarrantofor
instance there need not be any prior proceedings in a Court or Tribunal. A final Order is made. In thecaseofaWritof
Certiorari, if a Writ is allowed the Order complained, of is quashed and that is final. Refusal is equally final. Asfaras
the Court of Appeal is concerned its order ends the dispute which is the subject oftheapplication.Thejurisdictionin
respect of Writs is an exceptional one and the granting or refusal of a Writ is a final order within the meaningofArticle
128(1) of the Constitution. I would therefore reject the objection taken by Counsel for the Union andtheappealmustnow
proceed to be heard. Costs will abide the final decision in the appeal.
ISMAIL, J. - I agree.
WANASUNDERA, J. - I agree.
WIMALARATNE, J. - I agree.
VICTOR PERERA, J. - I agree.
Preliminary objection overruled.

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