Benbros Motors Tanganyika Ltd., v. Ramanlal Haribhai Patel, Civ. App. 19-D-67, -/11/67, Hamlyn J

Benbros Motors Tanganyika Ltd., v. Ramanlal Haribhai Patel, Civ. App. 19-D-67, -/11/67, Hamlyn J

In July, 1964, a transaction occurred between the plaintiff and his employer, the defendant, which is the subject of this action. In his action, filed in District Court on 11 February, 1965, plaintiff claimed Shs. 1500/- “severance allowed.”

On appeal, however, in resisting the defendant-appellant’s allegation that the District Court lacked jurisdiction, he argued that his action was based upon a “suspension from labour,” and not upon a “dismissal.” The Security of Employment Act, which had come into operation on 5 January, 1965, provided (with exceptions not material here) that no suit or other civil proceeding could be maintained in an civil court “with regard to the summary dismissal or proposed summary dismissal” of an employee, such cases being within the exclusive jurisdiction of the Conciliation Board.

            Prior to the passage of the Act, it would have been clear that the plaintiff had a period of 3 years to bring his claim. [Indian Limitation Act of 1908, Art. 7.] Cases to which the Act applies, however, must be brought within 7 days of the dismissal or proposed dismissal. Plaintiff argues that to apply the Act to his claim is to extinguish his cause of action, because of this provision. He contends that the Act is “substantive,” and that it cannot be so applied because the Act contains no express indication that it should be applied to caused of action accruing before its effective date.

            Held: (1) The action here must be taken to be one based upon a “dismissal,” within the meaning of the Act. The claim is for “severance” allowance, which term implies “ a complete and permanent cessation from employment.” A suspension” would be temporary, “pending some other event usually an investigation into some act on the part of the employee ---“ after which reinstatement might be had; The complaint here contains “no hint of such claim …… either for investigation or for reinstatement.” (2) When a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away; but when it deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, “whether commenced before or after the passing of the Act.” [Citing Wright v. Hale (1860) 6 H. & N. 227; and the Ydun (1898) P.D. 236.] (3) The Security of Employment Act is, in this connection, “a matter of procedure and not one of substance, in that it merely substitutes one tribunal for another in a particular class of cases. It does not affect an alteration in the law governing the relation of master and servant, but merely provides an alternative venue for the settlement of disputes.” Thus, where the plaintiff’s claim accrued before the effective date of the Act, and his action was instituted after that date, the Act must apply to the case. (4) The District Court, therefore, lacked jurisdiction to entertain the plaintiff’s action.