008-NLR-NLR-V-65-V.-W.-VIDYQASAGARA-Appellant-and-THE-QUEEN-Respondent.pdf
LORD GUEST—Vidyasagara v. The Queen
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[In the Privy Council]
1983Present: The Lord Chancellor, Lord Evershed,
Lord Jenkins, Lord Guest, and Sir Malcolm Hilbery
V. W. VXD Y AS AGAR A, Appellant, and THE QUEEN,
Respondent
Privy Council Appeal No. 35 of 1961
In the matter of a Rule issued in terms of Section 40A (4) of the IndustrialDisputes Act, No. 43 of 1950, as amended by Act No. 62 of 1957
Industrial Disputes (Amendment) Act, 1950-57—Section 40A (I)—Offence of contemptagainst an Industrial Court—Quantum of evidence.
The Minister of Labour had referred to an Industrial Court for settlementan industrial dispute between a trade union and an employer. At a hearingbefore the Industrial Court the appellant, who was appearing as Advocaterepresenting the Union, read out from a typewritten document in the followingterms:—
"… In the circumstances, the Union having felt that this courtby it3 order had indicated that an impartial inquiry could not be bad beforeit, has appealed to the Minister to intervene in the matter. The Union istherefore compelled to withdraw from these proceedings and will not consideritself bound by any Order made ex parte which the UnioQ submits would becontrary to the letter and spirit of the Industrial Disputes Aot ..
He then withdrew from the case.
Held, that the appellant was guilty of contempt of Court under seotion40A (1) of the Industrial Disputes (Amendment) Act.
Appeal by special leave from a judgment of the Supreme Courtreported in {I960) 62 N. L. R. 388.
F. N. Gratiaen,Q.G., with Dick Taveme and Q. A. Nonis, for theappellant.
Kenneth Potter, with T. 0. KettocJc, for the Crown.
Cur. adv. mil.
April 1,1963. [Delivered by Lord Guest]—
This is an appeal by special leave from a judgment and decree of theSupreme Court of Ceylon whereby the appellant was found guilty ofcontempt against or in disrespect of the authority of the IndustrialCourt under Section 40A (1) of the Industrial Disputes (Amendment)Act, 1950-57 and whereby the appellant was ordered to pay a fine of500 rupees and in default of payment to undergo fi months rigorousimprisonment.
2—LXV
2—It 10531—(8/63)
26LO&D—PvJya&spara v.
The jjffen.ce was alleged to have been committed by the appellant inmaking a statement to an Industrial Court before which he was appearingas Advocate representing the Petroleum Service Station Workers’ Union.
It is necessary to refer briefly to the history of the case antecedentto the appellant receiving instructions to appear as counsel for the
Union. On 2nd September, 1959, the Minister of Labour referred to theIndustrial Court for settlement an industrial dispute between the Unionand P. R. Perera. The matter in dispute related to the refusal byPerera to employ certain workmen who were members of the Union.Mr. H. S. Roberts was selected by the Minister of Labour from a panelto form the Industrial Court under the provisions of the IndustrialDisputes Act, 1950. The Court fixed the hearing for 30th October 1959.At the hearing on that date the Union was not represented and noexplanation was afforded for their non-appearance. The Court proceededto hoar the matter ex parte and fixed 19th November, 1959, as the datefor the award. On 2nd November 1959 the Union applied to the Courtfor permission to place its case before the Court. The Court grantedthe application and the Court fixed 21st November 1959 for the hearinginter partes.
On 15th November 1959 the Union applied to the Registrar of theCourt for a postponement of the hearing to a date three weeks from15th November 1959 on the ground of the illness of their advocate. TheUnion was ordered to support the application for a postponement at thehearing on 21st November 1959. At the hearing before the Court on21st November the General Secretary renewed the Union’s applicationfor an adjournment on th6 ground of the continued illness of their counsel.This application was opposed by Perera’s counsel. In the meantimethere had occurred a sympathetic boycott of Perera by the All CeylonOil Company Workers’ Union. This boycott was alleged by Perera’scounsel to have resulted in bis being kept out of business for the lastfive months. He also stated that the Union had sufficient time toretain other counsel. The Court made an Order in the following terms :—
“ I am willing to allow another date provided the Union instructsthe All Ceylon Oil Companies Workers’ Union to Lift the boycottimmediately. I put the case off for the 28th instant. If the boycottis lifted before then the case shall proceed to inquiry ; if not, theex parte trial shall stand.”
Subsequent to this Order the Secretary of the Union wrote a letter,dated 25fch November 1959, to the Minister of Labour in which he statedthat the condition imposed on the Union of obtaining a release of theboycott could not be justified and that the Order reflected a positivedegree of prejudioe on the part of the Court against the two Unions.He further stated that the Union was of the view that an impartialinquiry could not be had into the matter at the hands of a tribunal whichhad made an order of this nature. He finally requested the Ministerto have the Court reconstituted in order that the dispute might beheard de novo and determined by another member of the Panel.
LORD GUEST—Vidyasagara v. The Queen
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A tearing took place before the Industrial Court on 28th November.At this date the sympathetic boycott by members of the All Ceylon OilCompanies Workers’ Union had not been lifted. Mr. S. J. Kadirgamarappeared for Perera and the appellant appeared on the instructions ofthe Union. He read out from a typewritten document in the followingterms:—
“ … In the circumstances, the Union having felt that thiscourt by its order had indicated that an impartial inquiry could notbe had before it, has appealed to the Minister to intervene in thematter. The Union is therefore compelled to withdraw from theseproceedings and will not consider itself bound by any Order madeear parte which the Union submits would be contrary to the letter andspirit of the Industrial Disputes Act …”
He then withdrew from the case.
Following upon this hearing, Mr. Roberts submitted a complaint tothe Chief Justice dated 3rd December 1959 in which he submitted thatthe words used by the appellant at the hearing before the Court on 28thNovember, quoted above constituted a contempt of the Court beingcalculated to bring the Industrial Court into disrepute. The Chief Justiceacting under the provisions of section 40A (4) of the Act issued a rulenisi on the appellant to show cause why he should not be punished forcontempt in respect of the remarks above quoted. The case wa3 heardbefore the Supreme Court and on 20th May 1960 the Court foundthe appellant guilty of contempt. They made the rule absolute andimposed a fine of Rs. 500 and in default of payment sis months rigorousimprisonment.
Section 40A (1) of the Act provides :—
“ Where any person—
without sufficient reason publishes any statement or does any
other act that brings any arbitrator, Industrial Court orLabour Tribunal or any member of such Court into disreputeduring the progress or after the conclusion of any inquiryconducted by such arbitrator, Court or Tribunal; or
interferes with the lawful process of such arbitrator, Court or
Tribunal,
such person shall be deemed to commit the offence of contemptagainst or in disrespect of the authority of such Arbitrator, Courtor Tribunal.”
The questions, therefore, which were before the Supreme Court were(1) whether the statement made by the appellant at the hearing beforethe Industrial Court on 28th November 1959 brought the Court into dis-repute and (2) if so, whether the statement was made without sufficientreason. The Supreme Court held that the statement was an act calcu-lated to bring the Industrial Court into disrepute. Counsel for the
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LORD €HHST~VityaMfitmav. Ths Qmm
— … ——. i——t
appellant bad difficulty in resisting the conclusion that suoih a findingwas warranted. The words in the first sentenoe of the statement thatthe Union felt that the Court by its Order indicated that an impartialinquiry could not be had before it clearly suggested that the Court wasprejudiced against the Union and could not be trusted to give impartialconsideration to the inquiry. Their Lordships agree with the conclusionreached by the Supreme Court upon this matter. In regard to tbesecond question whether tbe statement was made without sufficientreason, oounsel for the appellant argued that as the appellant acted ingood faith and in accordance with what he believed to be his professionalduty in bringing to the notice of the Court that his client had appliedto the Minister of Labour to have the Court reconstituted, the statementwas made with sufficient reason. It was not and could not be contendedthat because the appellant was acting on instructions he was entitledto any special privilege. In reading from the typewritten document heaccepted responsibility for its contents. While there might have beenjustification for informing tbe Court of the fact of the Union’s applicationto the Minister and the fact of their withdrawal from the proceedings,there was really no call for any statement at all on behalf of the Union.Tbe matter had been submitted by the Union to the Minister of Labouron 25th November. The Court Order of 21st November made it clearthat if the boycott was not lifted before 2Sth November, the hearingwould be ex parte. It was only if the boycott was lifted before thatdate that the inquiry would be inter partes. As the boycott had notbeen lifted, there was no necessity for any representation on behalf ofthe Union. But whether the appellant’s appearance for the Unionwas in order or not, their Lordships consider that there was no justificationat all for his statement that on impartial inquiry could not be expectedbefore the Industrial Court. This was the sting in the contempt andit was deliberate and quite unnecessary in the circumstances. Counselfor the appellant argued that it could not be contempt for counsel toallege partiality of a Court as this would unduly restrict counsel’s argu-ments on. a bearing in certiorari proceedings. But different considerationsapply when an attack is made in a Court of review on the impartialityof a lower Court. It may be necessary in certain cases for counsel incompliance with his duty to his client to allege partiality of the lowerCourt. But where the allegation of partiality is inadv in the circum-stances under which, the appellant’s statement was made their Lordshipsconsider that no adequate justification exists.
In their Lordships’ opinion the Supreme Court were entitled to findthe appellant guilty of contempt and they will humbly advise HerMajesty that the appeal be dismissed.
The respondent did not ask for costs. There will, therefore, be noorder for oosta.
Appeal distniseed.