Colombo Apothecaries Co. Ltd. v. Wijesooriya

102-NLR-NLR-V-70-Colombo-Apothecaries-Co.-Ltd.-v.-Wijesooriya.pdf


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Colombo Apothecaries Co. L£d. v. Wijesooriya
1968 Present; H. N. G. Fernando, C.J., T. S. Fernando, J., Abeyesundere, J.,P. A. Silva, J., Siva Supramaniam, J., Samerawickrame, J.,and Tennekoon, J.THE COLOMBO APOTHECARIES CO. LTD.,Petitionerv.E. A. WIJESOORIYA,M. T. MARIKAR BAWA,>1. H. MOHAMED (Minister of Labour),N. L. ABEYWIRA (Commissioner of Labour).W. E. M. ABEYSEKERA (President, Labour Tribunal),Respondents
S. (J. 232(67 (ID(LTfl21 (67)—In the matter of an Application for aMandate in the nature of a Writ of Prohibition under s. 42 of the
Courts Ordinance
Industrial dispute—Termination of a workman's services—Dispute arising therefrombetween the employer and the dismissed workman—Whether it is an “ industrialdispute ”— “ Dispute or difference between an employer and a workman“Employer”—“Workman”—Interpretation Ordinance, s. 2—IndustrialDisputes Act (Cap. 131), as amended by Acts Nos. 25 of 1956, 14 and 62 of 1957,4 of 1962, se. 2, 3, 4, 17, 31A (1), 31B (1), 31B (2) (6), 32 (2), 33 (1) (b),33 (1) (c), 33 (1) (d), 33 (3), 33 (.5), 33 (6), 47C, 48, 49.
The 2nd respondent was employed by the petitioner-Company as on Assistant.On or about 5th April 1965 his services were summarily terminated on theground that he had been “guilty of gross insolence, rudeness, disobedience,dedance of authority and disrespect Subsequently he disputed the legalityand propriety of his dismissal by the Company and brought his dispute withthe Company to the notice of the Commissioner of Labour and, through him, tothe Minister of Labour. The Minister then, claiming to act under section 4(1)of the Industrial Disputes Act, referred the matter in dispute to a LabourTribunal (the 6th respondent). The matter in dispute was whether thetermination of the services of the 2nd respondent was justified and to whatrelief he was entitled.
It was contended on behalf of the petitioner-Company that after the servicesof the 2nd respondent were terminated by the Company, the employer-workmanrelationship between them had ceased to exist at the date of the reference andthat a dispute arising between the ex-employer and the ex-workman asto whether the dismissal was justified was not a dispute between an employerand a workman and could not fall within the definition of “ industrial dispute ”in s. 48 of the Industrial Disputes Act unless it was raised by another workmanwho was still in the employ of the petitioner or by a trade union.
lxx21 & 22
I*—H 15096—2,130(7 OS)
482 H. N. G. FERNANDO, C.J.—£olombo Apothecaries Co. Ltd. v. Wijesooriya
Held, by T. S. Fernando, G. P. A. Selva, Siva Sutramaniam andSamerawickrame, JJ. (H. N. G. Fernando, C.J., Abeyesundere andTennekoon, JJ., dissenting), that the dispute between the petitioner-Companyand the 2nd respondent was an'1 industrial dispute ” within the meaning ofs. 48 of the Industrial Disputes Act and the Minister had the power to referit for settlement by arbitration under s. 4 (1) of the Act. The 5th respondent,-therefore, had jurisdiction to hear and determine the dispute.
A.PPLICATION for a Writ of Prohibition against a LabourTribunal. This application was referred to a Bench of seven Judgesin terms of section 51 of the Courts Ordinance.
H. V. Per era, Q.C., with II. W. Jayewardene, Q.C., Vernon Wijetungeand Ben Eliyatamby, for Petitioner.
Walter Jayawardena, Q.C., Acting Attorney-General, with H. L.de Silva, Crown Counsel, for 1st, 3rd, 4th and 5th Respondents.
N.Satyendra, with S. Ponnambalam, for 2nd Respondent.
Cur. adv. vuU.
February 29, 1968. H. N. G. Fernando, C.J.—
1 must confess that I had much doubt during the course of the argumentof this case, as to the correct answer to the question which arises in thiscase, namely whether a dispute between a single employer and anemployee whom he has dismissed is an “ industrial dispute ” contemplatedin the Act. Because it appeared during the argument that my brothersSamerawickrame and Tennekoon each had fairly definite and opposingviews on the problem, they prepared at my request draft judgmentssetting out those contrary views, and I am sure my other colleagues on thisBench have derived as much assistance as I have from a study of thosedraft judgments, which quite fairly set out the pith of the argumentsaddressed to us by opposing counsel. Having enjoyed the benefit of theassistance to which I have just referred, I find myself now able to acceptthe answer in the negative which my brother Tennekoon gives to thequestion which here arises and to accept also his reasons for that answer.That being so, and also because the judgment of Tennekoon, J., wasprepared earlier and does not refer to some of the points which haveinfluenced the reasoning of Samerawickrame J., my own statement of■opinion has necessarily to take the form of a comment on the latterreasoning. In the circumstances, I trust that it is scarcely necessary forme to disclaim any intention of disparaging that reasoning in the course■of the expression of my disagreement.
When the petitioner in this case summarily dismissed the 2ndrespondent from service, there undoubtedly arose a “ dispute ” betweenthe two parties in the ordinary sense of that term, and that dispute
H. N. G. FERNANDO, C.J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 483
apparently came to the notice of the Minister. At this stage, the questionwhich concerned the Minister would have been whether (if I may stateit this way) he could do anything about the matter. The Minister’sstatutory powers under the Act are set out in s. 4 of the Act, each sub-section of which empowers him to refer an “industrial dispute” forsettlement by arbitration. Thus the particular question which arosewas whether this particular dispute is or is not an industrial dispute, andit seems to me beyond argument that the Minister’s first duty (havingregard to the form and structure of Acts of Parliament) was to seek asolution to the question in the Act’s definition of the expression “ industrialdispute ”. While definitions in our Statutes take various forms, this
particular definition commences thus “ industrial dispute means”,
a formula intended to exclude any meaning other than the meaning whichthe Legislature proposes to assign in the definition itself. The citationfrom Craie’s Statute Law, on which my brother Samerawickrame reliesfor the proposition that a word can be given its ordinary meaning in aparticular context is wholly applicable where a word or expression is notdefined at all, and may also be applicable in other cases, where for instance
the definition of a word or expression commences “ ‘ X ’ includes”.
But where a definition does commence “ ‘ X ’ means”, a Court
cannot in any opinion look for a meaning outside the terms of the definitionsave in extremis, i.e., to avoid manifest absurdity, or to disregard manifesterror in the actual definition.
The dispute which came to the notice of the Minister in this case wasone between a single employer and a person who, though previouslyemployed by that employer, was not so employed at the time when the<lispute arose ; and the dispute related to the termination of the servicesof that person. Taking first the subject-matter of the dispute, there is noquestion but that the subject-matter fell within the scope of the definition :a dispute as to “ the termination of the services of any person ” is expresslymentioned in the concluding part of the definition of “ industrial dispute ”in the Act.
But in relation to each other, the parties to this dispute, at the timewhen it arose, were not an employer and a workman (in the ordinarysense of those words) but an employer, or perhaps an ex-employer, andan ex-workman. Hence I am in entire agreement with my brotherTennekoon that, when one has regard only to the definition of “ industrialdispute ”, there was here no dispute between an employer and a workman.But that is not an end of the matter, for the words “ employer ” and4 ‘ workman ’’are both defined in the Act in what I might term “ compelling ”definitions, because they employ the term means. In order therefore todetermine what the Legislature intended by the word “workman”,the Minister was bound by the definition of that word. AcceptingTennekoon J.’s clear and obvious division of this definition into threeparts, I have no doubt that an ex-workman, i.e., a person whoseemployment has been terminated, is not contemplated in the first part;indeed no argument to the contrary was addressed to us.
484 H. X. G. FERNANDO, C.J.—■Colombo Apothecaries Co. Ltd. v. Wijesooriyn
But the question whether a workman whose services are terminated isnevertheless included in the second part of the definition of •* workman ”is not so easily answered. Had there been no third limb in the definition,the construction that the second part was intended to include anydismissed workman might have been reasonable.
The third limb or part of the definition, when read separately, is“ ‘workman for the purposes of any proceedings under this Act in relationto any industrial dispute, includes any person whose services have beenterminated.” One cannot I fear ignore the apparent intention of theLegislature evidenced in the words which I have just italicized. Whereasthe first two meanings which are assigned can apply whenever the word“ workman ” occurs in the Act, this third meaning can attach only when
the word has to be construed in relation to proceedingsdispute.
Hence it seems to me that, if the Court were to hold that the second limbcontemplates a workman whose services have been terminated, the Courtwould be transgressing the limitation deliberately stated in the thirdlimb of the definition. Indeed, the construction that the second limb ofthe definition of “ workman ” does include a dismissed workman isnegatived by the third limb, in which the Legislature assumes thata dismissed workman is not caught up in the earlier parts of thedefinition.
I am satisfied, on this examination of the definition of “ industrialdispute ”, read as it must be with the first two limbs of the definition of“ workman ”, that a dispute between an employer and his dismissedworkman is not an industrial dispute. I trust I am right in thinking thatSamerawickrame J. is thus far at one with me, because he relies only onthe third limb of the definition of “ workman ” for his conclusion.
The next, and last, matter which arises in the inquiry, whether thedispute in the present case is an “ industrial dispute ” within the definitionof that expression, is to consider whether that definition can properlybe read, together with the third limb of the definition of " workman ”.Expressing the question in another way, is there anything in thatthird limb which has the effect of giving to the word “workman”,when it occurs in the definition of “ industrial dispute ”, the meaning“ ex-workman or dismissed workman ”, I see no alternative but to holdthat the third limb can have no such effect, because the introductorywords of the third limb assign a meaning to the word “ workman ”, notfor all purposes, but only for the purposes of any proceedings under theAct in relation to an industrial dispute.
In my opinion, the proper approach of the Minister to a dispute whichis brought to his notice is the approach which I have myself made, namelyto inquire whether the dispute is one to which the Act applies, that is tosay, an “ industrial dispute ” as defined in the Act. If by that test, aparticular dispute is not an industrial dispute as so defined, then it issomething unaffected by the Act, and the Minister has no statutory
H. X. G. FERNANDO, C.J.—Colombo Apothecaries Co. Ltd. v. Wijesooriyci 485
power to take any action concerning it ; he cannot initiate a proceedingunder the Act except in relation to a dispute which first satisfies thistest.
With much respect, I must express disagreement with the opinion thatthere were in this case any “proceedings under the Act” at any stage beforethe Minister made a reference under s. 4. There is in existence a proceedingunder the Act only when, and after, a reference under s. 4 is made ; andthe third limb of the definition can operate only for the purpose of aproceeding thus in existence. At the stage when the Minister merelyconsiders whether he should make such a reference, he is not exercisingany power or function under the Act. Perhaps the very words of thepreceding sentence convey adequately the distinction between the merecontemplation of the commencement of a proceeding, and the actualcommencement of a proceeding. Perhaps also a valid analogy can bedrawn with the principle of the criminal law that the mere contemplationor intention of doing a criminal act is (save very exceptionally) not acriminal offence. The reason of course is that it is only the doing of theact that the criminal law covers, and not the desire to do it. So also the
proceeding ” which s. 4 of the Industrial Dispute Act covers or authorisesis the making of a reference, and not the idea or intention to make it.Nothing is a statutory proceeding unless it has some legal effect or legalconsequence, and the mere contemplation or intention of the Ministerto make a reference has no legal effect or legal consequence and is nota proceeding under the Act. For these reasons, I am unable to agreewith my brother Sameravvickrame that a dispute between an employerand a dismissed workman can be construed to be an “ industrial dispute ”by calling in aid the third limb of the definition of “ workman ”.
When a Statute contains a definition of a subject or matter towhich the Statute will apply, and especially when the definition uses theword “means ”, the Statute will apply only to such a subject or matteras passes the test that it falls within the description, conditions and otherparticulars specified in that definition. In addition, if any word orexpression which occurs in that definition is itself defined in anotherdefinition, then resort must also be had (in applying the test) to themeaning thus assigned to such a w^ord or expression ; that precisely is thereason why, in this case, it is legitimate and necessary to read the definitionof “industrial dispute” together with the definition of “workman”.But the third limb of the latter definition (unlike its first two limbs),while assigning a third meaning to “workman”, only does so “for thepurposes of any proceedings in relation to any industrial dispute ”. Thethird limb thus pre-supposes the existence of an industrial dispute andenacts some provision concerning it. Hence this third limb cannot formpart of the test to which I have referred, because it pre-supposes that thetest has already been satisfied. In testing the point whether some disputeis an “industrial dispute” as defined, it is inmy opinion contrary, both to
486 H. N. G. FERNANDO, C.J.^-Colombo Apothecaries Co. Ltd. c. Wijesooriya
common sense and to the rules of statutory construction, to call in aida provision which pre-supposes that the case under consideration haspassed that very test.
My opinion, that the third limb of the definition of “ workman ” is notrelevant in a consideration of the question whether a particular disputeis an industrial dispute as defined in the Act, does not have the consequencethat this third limb was enacted without purpose and is tautologous.There are in the Act many provisions, applicable in relation to proceedingsunder the Act, where the word “ workman ” occurs in contexts in which itmight be doubtful whether reference to a dismissed workman is alsointended. The third limb of the definition serves the useful purpose ofavoiding such possible doubts. Statutory provisions of this kind are notuncommon, and indeed are often efficacious.
My brother Siva Supramaniam is of opinion that there was a dispute ordifference between the petitioner and the 2nd respondent which arosebefore the termination of the services of the 2nd respondent, but thestatement of the matter in dispute, namely “ whether the termination ofthe services of the 2nd respondent was justified ”, do not indicate that therewas any industrial dispute prior to that time. If a workman conductshimself in a manner which appears to his employer to constitute grossinefficiency or impertinence, and if the employer immediately dismissesthe workman, there would be no dispute inexistence prior to the dismissal.If thereafter the workman acquiesces in his dismissal there will be nodispute at all; but if the workman questions the propriety of thedismissal then there will arise the dispute whether his dismissal wasjustified. While there may be cases in which dismissal is the culminationof a pre-existing industrial dispute, the present ease has not beenshown to be of such a nature.
I cannot agree that the case of It. v. National ArbitrationTribunal1 relates to facts similar to those of the present case. Thejudgment of Lord Goddard makes it clear that between November194G and March 1947 the Company’s workmen and their Union hadmade demands for changes in wages and in conditions of service, and thatthe Company had always resisted those demands. At the time of thetermination of the services therefore, there was in existence a dispute asto those matters. Immediately after the passage cited by my brotherSiva Supramaniam from the judgment, these observations follow :—
“ It is, in my opinion, quite clear that there was here a trade dispute1existing at any rate down to the date of the dismissal of the Avorkmen
If there was a trade dispute it can, in my opinion, be
referred to the tribunal whether or not the dispute has resulted inworkmen being dismissed or in their having discharged themselves.”
1 {1947) 2 A. E. R. 693.
T. S. FERNANDO, J.—Colombo Apothecaries Co. Ltd. <■. Wijesooriya
487
As I understand it the decision in that case proceeds on the common-senseprinciple that once a dispute has arisen, an employer cannot avoid theoperation of the machinery for settlement by terminating the employmentof his workmen. The reference actually made in that case includedseveral matters regarding conditions of service which had been in disputeprior to the termination. In the instant case, however, the reference toarbitration does not refer to any matter alleged to have been in disputeprior to the termination of the employment of the 2nd respondent.
The conclusion which I reach in this case means that the machinery ofsettlement by arbitration is not available in the case of a dispute betweenan employer and an individual workman whose services are terminatedbefore the dispute arises. That conclusion is unfortunate for the employeein the instant case, because apparently there is not now available to himthe remedy provided in Part IVA of the Act. But that consequence isentirely fortuitous ; it was probably due to the fact that the presentdispute arose at a time when this Court had decided, in the case of WalkerSons & Co., Ltd. v. Fry1, that the provisions of Part IVA of the Act'were ultra vires of the principle of Separation of Powers. Now that ourdecision has been reversed by the Privy Council, there is no longer anydoubt that relief under that Part of the Act can be sought in cases likethe present one. And if an individual’s grievance does become thesubject of a dispute to which a trade union or an actually employedworkman is a party, then the procedure of settlement by arbitrationis also available.
For these reasons, I agree to the order proposed by my brotherTennekoon.
T. S. Fernando, J.—
I agree to the making of the order proposed by Samerawickrame J. and'with the reasons therefor set out by him in his judgment.
Abeyesundere, J.—
The dispute between the 2nd respondent and the petitioner in regardto the termination of the former’s services by the latter was consideredby the 3rd respondent, who was the Minister of Labour, to be an industrialdispute -within the meaning of the Industrial Disputes Act (hereinafterreferred to as the Act). Purporting to exercise the powers under section4 (1) of the Act, the 3rd respondent referred such dispute for settlementby arbitration to the 5th respondent who is the President of a LabourTribunal. The petitioner prays for a writ of this Court prohibiting the5th respondent from continuing the proceedings in relation to the allegedindustrial dispute between the 2nd respondent and the petitioner.
i (1965) 6S N. L. R. 73.
4SR ABEYESUNDKRE, .1. – Colombo Apothecaries Co. Ltd. c. If'ijesoortya
Mr. H. V. Perera, Q.C., who appeared for the petitioner, contendedthat the dispute between the 2nd respondent and the petitioner was notan industrial dispute within the meaning of the Act as the 2nd respondent,haying ceased to be a workman when the dispute arose, was notcompetent to be a party to an industrial dispute, that consequently thereference made by the 3rd respondent to the 5th respondent was invalid,and that therefore the petitioner’s application for a writ of prohibitionshould be allowed. Mr. N. Satyendra, who appeared for the 2nd respond-ent, sought to counter Mr. Perera’s contention with the argument that,by reason of the second part of the definition of “ workman ” in section48 of the Act, the 2nd respondent was a workman for the purposes of theAct despite the termination of his services. Mr. Perera submitted thatthe second part of the definition of “ workman ” was intended to applyto the word “ workman ” in the expression “ trade union consisting ofworkmen ” occurring in the definition of “ industrial dispute ” in the Actand that it did not apply to the 2nd respondent. In connection withthat submission Mr. Perera drew attention to the fact that the expression“ trade union ” was defined in the Act to be any trade union registeredunder the Trade Unions Ordinance and that the meaning of the word“ workman ” as expressed in the second part of the definition of thatword in the Act occurred in the definition of “ workman ” in the TradeUnions Ordinance.
The second part of the definition of “ workman ” in the Act providesthat " workman ” includes any person ordinarily employed under acontract of service with an employer whether such person is or is not inemployment at any particular time. The third part of the definition of“ workman ” in the Act provides that, for the purposes of any proceed-ings under the Act in relation to any industrial dispute, “ workman ”includes any person whose services have been terminated. If, as arguedby Mr. Satyendra, the second part of the definition of “ workman ” hasan unrestricted application in the Act, a person whose services have beenterminated would be a workman within the meaning of the Act andconsequently the third part of the definition of “workman” would beredundant.
Mr. Satyendra submitted that if Mr. Perera’s interpretation of thedefinition of “ workman ” in the Act was correct, that definition wouldnot apply to the word “ Avorkman ” in section 31B of the Act whichprovided that a workman may make an application to a Labour Tribunalfor relief in respect of the termination of his services by his employer.That submission is correct. But the inapplicability of the definition of“ workman ” in the Act to section 31B does not matter as it is clearthat the context of that section requires the word “ workman ” occurringtherein to mean a person whose services have been terminated and thedefinition of “ workman ” in section 48 of the Act is subject to the words“ unless the context otherwise requires ”.
G. P. A. SILVA, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 489
With regard to the third part of the definition of “ workman ” in theAct, Mr. Perera’s submission was that it was necessary as awards andother proceedings under the Act in relation to an industrial dispute weresometimes required to apply to persons whose services had beenterminated. Mr. Perera also examined the question whether the thirdpart of the definition of workman ” in the Act applied to the 2ndrespondent. He submitted that the consideration by the 3rd respondentwhether the dispute between the 2nd respondent and the petitioner was anindustrial dispute was not a proceeding under the Act in relation to anindustrial dispute as there should first be an industrial dispute before anyproceeding in relation thereto under the Act could arise and thattherefore the third part of the definition of “ workman ” in the Act couldnot be relied on to determine the question whether the dispute betweenthe 2nd respondent and the petitioner was an industrial dispute. Iagree with Mr. Perera that such question must be determined withouthaving regard to the third part of the definition of “ workman ”in the Act.
Unlike Mr. Satyendra’s interpretation of the definition of “ workman ”in the Act, Mr. Perera’s interpretation of that definition does not have theeffect of making any part of that definition redundant. I acceptMr. Perera’s interpretation. The dispute between the 2nd respondentand the petitioner is not an industrial dispute within the meaning of theAct because the parties to it are not competent under the Act to be partiesto an industrial dispute as, at the time when the dispute arose, the 2ndrespondent had ceased to be a workman of the petitioner and also thepetitioner had ceased to be the 2nd respondent’s employer.
I hold that, as the dispute between the 2nd respondent and thepetitioner is not an industrial dispute within the meaning of the Act, itsreference by the 3rd respondent to the 5th respondent for settlement byarbitration is invalid and consequently the petitioner is entitled to thewrit of prohibition prayed for by him. He is also entitled to his costs,one half of which shall be paid by the 2nd respondent and the other halfby the 3rd respondent.
G. P. A. Selva, J.—
I have had the advantage of reading the judgments of My Lord theChief Justice and my brothers Samerawickrame and Tennekoon. Inagreeing with the conclusion reached by my brother SamerawickrameI wish to express my own views which have persuaded me to that course.As the facts preceding the application as well as the substance of thearguments advanced by counsel at the hearing have been fully set outin the judgments of my brothers Samerawickrame and Tennekoon,I shall not repeat them.
!•*—H 15008 (7/68)
490
G. P. A. SILVA, J.—Apothecaries Co. Ltd. v. Wijesooriya
In considering the question at issue it is of the utmost importancethat one should always have in the forefront the broad purpose of theIndustrial Disputes Act. It is agreed by all the counsel associated withthe discussion of the legal aspects of this matter—and there can be hardlyany doubt—that the sole object of the Act is the promotion andmaintenance of industrial peace. It is therefore reasonable to assumethat the legislature at least intended that any industrial dispute whichis or is likely to be a threat to industrial peace should be brought withinthe scope of the Act. When I consider the definition of the words“industrial dispute” in the present Act, I cannot help thinking thatit is wide enough to include every serious problem that can arise betweenan employer and employee in relation to the employment. It is not asit were that the Act was silent as regards termination of employmentand one is left to interpret whether that too was in contemplation butthe Act specifically deals with it. Even if the Act was silent, reason andcommon sense would preponderate towards the view, unless there isgood reason to the contrary, that, when less serious matters affectingindustrial peace were brought within the purview of industrial disputesthe subject of termination of employment, which is the most seriousmatter that can affect the relations between an employer and employee,should have been in contemplation. So far as the powers of the Ministerunder section 4 of the Act are concerned, experience has shown toooften that the termination of services of one employee has resulted inconsiderable or complete dislocation of an industry with which he wasassociated. In these circumstances the question suggests itself whether asagacious and prudent Minister, having all the data before him, wouldnot be in the best position to consider whether the termination of servicesof a particular worker is or is not of such a nature as to be likely to leadto unrest in one or more industries and, when he so feels, whether hewould not be justified in setting in motion the machinery contemplatedin section 4 of the Act.
It is in the above background that I desire to consider the presentquestion. In interpreting the provisions of this Act it would not bedesirable to interpret one particular section in isolation and it is necessaryto appreciate the scheme of the Act considered as a whole. At the outset,Part II of this Act deals with the functions of the Commissioner and thepowers of the Minister in regard to industrial disputes. In setting outthe functions of the Commissioner, section 2 requires him, on noticebeing given or otherwise, if he is satisfied that an industrial disputeexists or is apprehended, to take such steps as he may consider necessarywith a view to promoting a settlement of the dispute. It seems to methat this section not only empowers but requires the Commissioner toadopt every means at his disposal, whether such means is specificallyprovided for in the Act or not, in order to promote a settlement of thedispute. As this court is not immediately concerned with the lattermeans, it is sufficient to concentrate on the machinery provided in theAct, namely, the proceedings contemplated in section 3 relating to the
G. P. A. SILVA, J.—Co’ornbo Apothecaries Co. Ltd. v. Wijesooriya
491
powers of the Commissioner. To my mind the words “ that any indus-trial dispute is. .apprehended ” in section 2 (1) and similar words in section3 (1) “where he apprehends an industrial dispute ” have a very importantsignificance in considering the present question. For, an industrialdispute need not exist before he commences to perform his functionsand it is sufficient if he apprehends an industrial dispute. Under thesetwo sections, he would be the final arbiter as to whether there is suchan apprehension or not and that apprehension may well be based onthe dismissal of one workman. Where such an apprehension is entertained,therefore, the dispute which he will have to refer for settlement orendeavour to settle by conciliation will be the dispute as to the dismissaland no other. The only basis on which this dispute can be called anindustrial dispute over which alone the Commissioner can exercise hispowers under section 3 is in terms of the last limb of the definition‘workman’ which includes a person whose services have been terminated,read together, of course, with the definition of ‘ industrial dispute
Although sections 2 and 3 are not the sections which this court iscalled upon to interpret I think their implications have a bearing on theinterpretation of the next section. Having regard to the sequenceof the sections and the general functions of a Minister and a Head of aDapartment under him, it is not unreasonable to think that a disputewill reach Ministerial level only if the Commissioner as the Head of theDepartment fails to settle it by means provided for by the Act or otherwise.In addition to the reasons which I set out below independently for con-sidering that the present dispute is an industrial dispute for the purposes ofsection 4, if the construction which I have placed on the words “ industrialdispute ” in section 3 is correct I feel fortified in giving the same meaningto the words in the next section where the Minister would be havingrecourse to his own powers to settle the dispute after the Commissionerhimself has failed. For, it is fair to assume that in two consecutivesections in the same chapter where the functions and powers of theCommissioner and the Minister respectively in relation to industrialdisputes are dealt with, the legislature intended to give the same meaningto the same words.
When the matter in dispute reaches the Minister, in my view, thereis only one purpose for which he will consider it, namely, for the purpose ofproceedings under section 4 of the Act in relation to the existing dispute.For this purpose he has to satisfy himself first that there is an industrialdispute and, if so, for the purposes of exercising his powers under sub-section (1), to form an opinion as to whether or not it is a minor dispute.In regard to the first matter I think he will be fully justified in decidingthat there is an industrial dispute in this case by reference to the definitionsof the words “ industrial dispute ’’ read with the definition of the word“ workman ” which includes, for the purpose of any proceedings underthe Act in relation to an industrial dispute, a person whose serviceshave been terminated. It seems to me to be an unwarranted restriction
492 G. P. A. SILVA, J.—Colombo+Apothecaries Co. Ltd. v. Wijesooriya
of the meaning of this definition to hold that the Minister should firstconsider whether an industrial dispute in terms of the definition existsindependently of the purpose for which he is indulging in suchconsideration. In my view he has necessarily to consider the meaningof the words, having the purpose of that consideration in the forefront,namely, to take proceedings under section 4. Else there is no occasionfor him to consider whether there is an industrial dispute or not.
On an examination of the various provisions of the Act I thinkthere is a good reason for the limitation which the legislature hasimposed on the meaning of “ workman ” which in turn restricts the mean-ing of the words “industrial dispute” where proceedings under the Actin relation to an industrial dispute are not in contemplation. There areseveral sections in the Act making reference to the word ‘ workman ’which clearly refer to a workman in the service of the employerand in which the concept of a discontinued workman will be quiteinapplicable. A definition had therefore necessarily to be evolved wherea person who was a workman at some stage and whose services had beenterminated before any relevant question arose, had to be excluded. Atthe same time the legislature was anxious to empower the Minister toexercise powers under section 4 in regard to a dispute of such a personwhenever the dispute was one which threatened industrial peace. Thedefinition was, I think, the outcome of these two considerations andthere is no justification in my view for this Court to impose anylimitation on this definition. Indeed such a limitation would defeatthe very object that the definition was intended to achieve and woulddeprive a dismissed worker of the possibility of availing himself of aright which the legislature conferred on him.
It was contended in the course of the argument that the remedy fora dismissed workman was to avail himself of the provisions of Part IVAand to seek redress before a Labour Tribunal which could take cognizanceof an individual workman’s complaint regarding the termination of hisservices by his employer. Instances are not rare where the legislature hasprovided for more than one remedy even in respect of the same grievance.Quite apart from that, as I have already referred to earlier in regardto proceedings under Chapter II by the Commissioner or the Minister,having regard to the possible impact on industrial peace, there may becertain considerations which persuade a Minister in possession of all therelevant material, to take proceedings under section 4 even in a case wherethe workman whose services have been terminated can independentlyhave recourse to a Labour Tribunal. Furthermore, there is nothingin Chapter IVA of the Act, which provides for Labour Tribunals,to suggest that individual grievances relating to termination of servicesshould be exclusively dealt with by such tribunals nor is there anyprovision earlier to exclude such grievances from the purview ofindustrial disputes regarding which the Minister is empowered totake certain proceedings.
SIVA SUPRAMANIAM, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 493
Perhaps the most persuasive provision in the Act in favour of theinterpretation that a termination dispute of an individual workman,which is not taken up by a Trade Union, can form the subject of a referenceby the Minister under section 4 (1) is to be found in section 33 whichsets out some of the decisions that may be contained in an award. Ifit was the intention of the legislature that such a dispute should becognizable only by a Labour Tribunal established under Part IVA, theprovisions of section 33 (1) (b) or (c) or 33 (3), (5) and (6) all of which makepointed reference to dismissal and reinstatement of a workman willcease to have any meaning in the context in which they occur. Theconclusion therefore seems to me unescapable that the Minister’sreference in this case is one which is justifiable in law. The petitioner’sapplication cannot therefore succeed.
Siva Supramahtam, J.—
I have had the opportunity of perusing the judgments of my Lord theChief Justice and my brothers Samerawickrame and Tennekoon.
The facts have been fully set out in the judgment of Tennekoon J.,and it is unnecessary for me to recapitulate them. The question thatarises for decision is whether, on the facts stated, there existed an indus-trial dispute which the Minister had jurisdiction to refer for settlementby arbitration under S. 4 (1) of the Industrial Disputes Act (Cap. 131,as amended by Acts Nos. 25 of 1956, 14 and 62 of 1957 and 4 of 1962,hereinafter referred to as the Act). I am in agreement with the answergiven to that question by Samerawickrame, J.
It has to be borne in mind that although the Legislature had by ActNo. 62 of 1957 introduced Part IVA into the original Act and hadprovided a remedy to a workman whose services had been terminatedby his employer, namely, the right to make an applicationfor relief to a Labour Tribunal, it enlarged the definition of antf industrial dispute ” in 1962 by expressly adding to that definition“ any dispute or difference between an employer and a workman ”.Had this amendment not been effected, it might have been contendedthat the Legislature did not intend that the machinery of settlement byarbitration should be available in the case of a dispute between anemployer and an individual workman whose services had been terminated,on the footing, perhaps, that such a dispute cannot endanger industrialpeace. The amendment, however, made it clear that the Legislatureintended that the machinery should be available to an individual workmanin addition to the remedy provided under Part IVA of the Act. Therelevant sections of the Act should, therefore, be construed in a mannerwhich will give effect to that intention of the Legislature, unless, ofcourse, such a construction is not possible.
494SIVA SU1‘]<AM ANIAM, J.— Colombo Apothecaries Co. Ltd. v. Wijcsoorii/a
The definition of “ workman ”, as it stood before the amendment of1957, included a person ordinarily employed under a contract with anemployer “ whether such person is or is not in employment at any parti-cular time Any dispute or difference between “ employers and work-men ” fell within the definition of an £C industrial dispute The words“employers and workmen” include " an employer and a workman ”(S. 2 of the Interpretation Act). On the plain meaning of the words,therefore, a person, other than a casual employee, who had ceased tobe in the employment of his employer was, nevertheless, a “ workman ”for the purpose c f the Act and could have been a party to an “ industrialdispute ”. Can it be said that the Legislature, when it effected theamendment in 1957, by adding to the definition of “ workman ” thewords “ and for the purpose of any proceedings under this Act in relationto any industrial dispute, include any person whose services have beenterminated,” took away a right to which a workman was already entitled ?In my opinion, the amendment was only intended to make the positionclear since, under the same amending act, “ the termination of the servicesor the reinstatement in service ” of a workman was specifically includedin the definition of “ industrial dispute ” as a subject matter of an“industrial dispute”, although such a dispute was already within theambit of an “ industrial dispute ” by reason of the words “ connectedwith the employment or non-employment ” contained in the earlierdefinition. ( Vide the judgment of the Federal Court of India in Provinceof Bombay v. If'estf India Automobile Association1.)
There was no corresponding amendment in the definition of * employer ’to include a person who had ceased to be an employer. Since the employerwas a person against whom orders for the payment of money or thereinstatement of workmen could be made and enforced, the Legislatureprovided for those matters in respect of a person who had ceased to be anemployer by enacting a new section 47C instead of amending the defini-tion of “ employer ”, as the aforesaid matters cannot be adequatelydealt with by an amendment of the definition.
With great respect, I find it difficult to agree that the provisions ofthis section lead to a necessary inference that a dispute connected withthe termination of services can be referred to an Industrial Court or aLabour Tribunal for settlement only if the dispute arose while therelationship of employer and workman subsisted.
On the facts of the instant case, however, I am of opinion that thedispute which was referred for settlement by arbitration arose when therelationship of employer and workman subsisted between the petitionerand the 2nd respondent. Under S. 48 of the Act, “ industrial dispute ”means, inter alia, “ any dispute or difference between an employer anda workman . . . cor nected with . . . the termination of the services . . .of any person.” ‘ Any person ” will, of course, include the workman
1 A. J .F. 1949 Federal Court, page 111.
SIVA SUPRAMAXIAM, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 495
whose services had been terminated. The “ industrial dispute ” thatwas referred by the Minister for settlement by arbitration was set outas follows :—“ Whether the termination of the services of Mr. M. T.Marikar Bawa is justified and to what relief is he entitled.”
The contention on behalf of the petitioner is that on the date on whichthe dispute arose the relationship of employer and workman had ceasedto exist between the petitioner and the 2nd respondent and consequentlythere was no “ dispute or difference between an employer and a work-man ” which would constitute an “ industrial dispute ” in terms of S. 48in respect of which the Minister could make an order under S. 4 (1) ofthe Act. It was submitted, however, that the dispute as to whether thetermination of the services of the 2nd respondent was justified will fallwithin the definition of “ industrial dispute ” if it was raised by anotherworkman who was still in the employ of the petitioner or by a tradeunion but not by the 2nd respondent himself, although the 2nd respondentwas the person most vitally and directly concerned in the dispute.
It is necessary to examine when the “ dispute or difference ” in connec-tion with the termination of the services of the 2nd respondent arosebetween the parties. What are the differences between the parties whichthe arbitrator will be called upon to consider in connection with thetermination of the services of the 2nd respondent to determine whetherthe termination was justified ? They will necessarily be differences thatarose between the parties which culminated in the termination of theservices and not differences which arose thereafter. Where the proprietyof a summary dismissal is questioned by a workman, the dispute or differ-ence arises at least contemporaneously with the communication of theorder of dismissal. The dispute or difference between the petitionerand the 2nd respondent which formed the subject of the reference there-fore arose before the relationship of employer and workman came to anend. Any dispute or difference that arose between the parties after thetermination of the services of the 2nd respondent will be irrelevant for aconsideration of the question whether the termination was justified.The dispute that existed between the parties which was referred forsettlement by arbitration by the Minister was therefore an “ industrialdispute ” within the meaning of S. 48 of the Act. The fact that at thedate at which the order was made by the Minister under S. 4 (1) of theAct the relationship of employer and workman had ceased to exist cannotaffect the Minister’s power to make an order in respect of the “ industrialdispute ” which had already arisen.
A contention similar to that advanced by the petitioner in this case wasconsidered by the Court of Appeal in England in the case of R. v.National Arbitration Tribunal, Ex jparte Horatio Crowther db Co. Ltd.1The Conditions of Employment and National Arbitration Order, 1940,made under certain Defence Regulations, provided as follows :—Article2 (I) “If any trade dispute exists or is apprehended, that dispute ….may be reported to the Minister.”
1 {1947) 2 A. E. R. 693.
496 SIVA SUPRAMANIAM, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
Article 7.“ Trade dispute means any dispute or difference between
employers and workmen or between workmen and workmen connectedwith the employment or non-employment or the terms of employmentor the conditions of labour of any person. ”
** Workman means any person who has entered into or works under acontract with an employer . . .
A dispute arose between a company and certain workmen in November1946 over the terms and conditions of service. On 4th April 1947 thecompany terminated the services of the workmen after giving themnotice of termination on 28th March 1947. On 14th April 1947 the matterwas reported to the Minister who referred the dispute to the NationalArbitration Tribunal. The validity of the order made by the Tribunalwas attacked on the ground, inter alia, that no dispute existed or wasapprehended on the date on which the dispute was reported to the Ministerand that as the workmen had ceased to be in the employment under theCompany at the date of reference, there was no matter on which thetribunal could arbitrate. The Court (Lord Goddard C. J. and Humphreysand Croom-Johnson JJ.) held that although the contract of servicebetween the Company and the workmen had been terminated at the dateof the report to the Minister, there was nevertheless a trade disputewithin the meaning of Article 7 (supra). In the coarse of his judgment,Lord Goddard said :
“ It was submitted by counsel for the company that as at the dateof the reference due notice had been given to the workmen to terminatetheir employment and their employment had thereby been terminated,there could be no trade dispute to refer, because there could not be adispute or difference on any subject between those employers andworkmen as the workmen were not in the service of the employers, andhe reinforced this argument by reference to the definition of “ workman”which he submitted contemplated an existing contract of service so,as he put it, that there must be some contract on which the referencecould “ bite I cannot agree with that submission. If effect weregiven to it, it would mean that any employer, or, indeed, any workman,could nullify the whole provisions of the Order and the object of theregulation under which it was made by terminating the contract ofservice before a reference was ordered, or even after the matter wasreferred but before the tribunal considered it.” I
I am of opinion that in the instant case there was an “ industrialdispute ” within the meaning of S. 48 of the Act and that the order underS. 4 (1) was properly made by the Minister. In the result, the petitioner’sapplication fails and must be dismissed with costs payable to the2nd and 3rd respondents. I agree to the amounts fixed by my brotherSamerawickrame.
SAMERAW3CKRAME, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 497Sameeawickbame, J.—
The Petitioner, the Colombo Apothecaries Company Limited, has madean application for a mandate in the nature of a writ of prohibition,forbidding the 5th respondent, who is the President of a Labour Tribunal,from hearing, determining and continuing proceedings in respect of adispute referred to him by the 3rd respondent. The matter in disputewas whether the termination of the services of Mr. M. T. Marikar Bawa(who is the 2nd respondent) was justified and to what relief he was entitled.The 3rd respondent, who is the Minister of Labour, referred the matterin dispute to the 5th respondent, claiming to act under Section 4 (1) ofthe Industrial Disputes Act.
Mr. H. V. Perera, Q.C., appearing for the petitioner, supported hisapplication on the ground that the 3rd respondent had no power underthe Statute to refer the dispute for settlement by arbitration, becausethe dispute which had arisen upon the summary dismissal of the 2ndrespondent was one between an employer and a person whose serviceshad been terminated and was, therefore, not a dispute between an*employer and a workman within the relevant provisions of the Act.
The last part of the definition of tc workman ** in Section 48 of theIndustrial Disputes Act is as follows :—“ and, for the purposes of anyproceedings under this Act in relation to any industrial dispute, includesany person whose services have been terminated ”. The term “ Indus-trial Dispute ” has itself been defined in this Section, but appearing as itdoes in the provision defining <c workman ”, it need not be given themeaning set out in the definition in Section 48, for that definition itselfuses the word “ workman ”. Again, it is a rule of construction that thoughthe meaning of a term is defined in the Interpretation clause of an Act,the definition is not necessarily applicable on every occasion where theword interpreted is used in the Act. Vide Craies on Statute Law, 5thedition, page 200. A term should be given its ordinary meaning in thecontext in which it occurs and recourse need be had to the definition inthe interpretation clause only where the meaning is not clear.
It is necessary, therefore, to interpret the words “ for the purposes ofany proceedings under this Act in relation to any industrial dispute ”without reference to the meaning given to the term “ Industrial Dispute ”in Section 48. On an examination of the provisions of the IndustrialDisputes Act, it appears that sections 2 (1), 3 (1), 4 (1) and 4 (2) of theAct provide that proceedings in respect of an industrial dispute may beinitiated or commenced either by the Commissioner or the Minister, inthe circumstances and for the purposes set out in those provisions.
I am, therefore, of the view that the words set out above do no morethan state in compendious form what may be stated at length by thefollowing “ for the purposes of any proceedings that may be initiated orcommenced either by the Commissioner or by the Minister underSections 2 (1) or 3 (1) or 4 (1) or 4 (2) of this Act ”.
498SAMERAWICKRAME, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
It follows that for the purposes of proceedings that may be commencedor initiated by the Minister under Section 4 (1) of the Act, a workmanincludes a person whose services have been terminated. Section 4 (1)of the Act is as follows :—“ The Minister may, if he is of opinion thatan industrial dispute is a minor dispute, refer it, by an order in writingfor settlement by arbitration to an arbitrator appointed by the Ministeror to a Labour Tribunal, notwithstanding that the parties to such disputeor their representatives do not consent to such reference
This provision sets out the first step to be taken in a proceeding inrelation to an industrial dispute : it states that the Minister may, if heis of opinion that an industrial dispute is a minor one, refer it by anorder in writing for settlement by arbitration. Accordingly, as forthe purposes of such a proceeding, a “ workman ” includes a personwhose services have been terminated, the Minister should, in formingan opinion whether a dispute is an industrial dispute, consider whetherthe dispute is between an employer and a workman and/or an employerand a workman whose services have been terminated.
Learned Counsel for the petitioner urged that the object of legislationlike the Industrial Disputes Act was the preservation of industrial peace ;that it has been held that a dispute between an employer and a singleworkman or an employer and a dismissed workman was not an industrialdispute unless the dispute had been taken up by the other workmen,because the absence of support for such disputes from other workmenprevented them from presenting any threat to industrial peace. It maybe that one view is that it is sufficient for the preservation of industrialpeace to provide remedies for disputes which affect or are taken up by anumber of workmen or by a Trade Union. Another view is that industrialpeace is best secured if protection is given to the individual worker byextending legislation relating to industrial disputes to afford remedies for adispute between an employer and a single workman and redress for aworkman whose services have been terminated, whether or not suchmatters are taken up by other workmen. Legislation amending the Indust-rial Disputes Act enacted in 1957 and thereafter have been based on thesecond view. Act No. 4 of 1962 has introduced an amendment whichexpressly makes a dispute between employer and workman an IndustrialDispute. Amending Act No. 62 of 1957 has introduced Part IV A enablinga workman or a Trade Union on behalf of a workman who is a memberof it to make an application for relief or redress to a Labour Tribunalin respect of the termination of his services. I am, therefore, of theview that, at the lowest, there is no ground for assuming that ourLegislature was unlikely to make a dispute between an employer anda dismissed employee an industrial dispute and to provide a remedyfor it on the ground that it presented no threat to industrial peace. I
I have considered the submissions made by learned counsel for thepetitioner on the footing that the object of the Industrial Disputes Actwas the preservation of industrial peace because it cannot be denied
SAMERAWICKRAME, J.—Colombo Apothtrnries Co. Ltd. v. Wijesooriya 499
that whether it is so stated therein or not it must necessarily be theultimate purpose of any legislation similar to that Act. There is, however,substance in the contention of 3Ir. Satyendra, Counsel for the 2ndrespondent, that if one is seeking aid for the interprets ton of theAct: one should look to the preamble of the Act to ascertain its purposes.The preamble to the Industrial Disputes Act does not mention thepreservation of industrial peace and is as follows :—“ An Act toprovide for the prevention, investigation and settlement of industrialdisputes and for matters connected therewith or incidental thereto
Section 31 A (1) provides for the establishment of Labour Tribunals“ for the purposes of the Act If the establishment of a LabourTribunal to receive applications for relief or redress in respect of thetermination of the services of a workman falls within the purposes ofthe Act. it cannot reasonably be said that the settlement by arbitrationof a dispute between an employer and a dismissed workman does notalso fall within those purposes.
The application for relief or redress to Labour Tribunals in respectof termination of services of a workman provided for by Part IV A isan application to he made directly by the workman or his Union on hisbehalf. The workman or those acting as agents for him will be theparty applicant and have control over the conduct and presentationof his case. Where an industrial dispute is referred by the Minister forsettlement by arbitration under Section 4, the arbitrator is required to hearsuch evidence as may be tendered by the parties to the dispute, vide Section17 of the Act. Section 31B (2) (b) requires a Labour Tribunal, if it issatisfied that the subject matter of an application before it forms partof an industrial dispute referred by the Minister for settlement underSection 4, to make order dismissing the application without prejudiceto the rights of parties in the industrial dispute. If the contentionmade on behalf of the petitioner is correct, a workman who has madean application for relief or redress in respect of the termination of hisservices may have his application dismissed if it forms part—perhaps anincidental part—of an industrial dispute which has been referred for settle-ment by arbitration and to which dispute he cannot in law be a party.Consequently, he would be deprived of the opportunity of seeking reliefin proceedings in which he would have control personally or by hisagents over the conduct and presentation of his case and he would bereferred for relief to arbitration proceedings in which the arbitrator isnot required to hear such evidence as he may adduce because he is not aparty to the dispute. I do not think that the Legislature could haveintended a result of this kind and I am of the view that the provision inSection 31 B (2) (6) was made because the Legislature contemplated aworkman whose services have been terminated being a party to anindustrial dispute which may be referred by the Minister for settlementby ’arbitration.
500 SAMERAWICKRAME, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
Learned Counsel for the petitioner raised the question whether ifa dismissed employee could be a party to an industrial dispute, he may,without seeking reinstatement for himself, raise a dispute with regardto the rates of pay and other terms of employment of the other workmen.To fall within the Act a dispute must, in my view, not be merely a theoreticalor academic disagreement. It must be a real dispute between employerand workman or ex-workman and must be connected with the terms ofemployment of a person. A dismissed workman who is not seekingreinstatement for himself is not personally interested in the terms ofemployment nor does he have such interest in or duty towards theworkmen who continue in employment, that he can be a party to adispute in respect of their terms of employment within the meaning ofthe Act, even if there is a disagreement between the employer andhimself in regard to the propriety of such terms. In R. v. IndustrialDisputes Tribunal1 it was held that workers may be parties to a disputethough they are not workers to whom the award will apply, but thejudgment of Devlin J. indicates that they should have some interestin having the dispute resolved. He stated, “ The mere fact that a•person is not materially affected by decisions on the subject-matterof the dispute does not appear to us automatically to prevent him frombeing a party to a dispute. There are all sorts of industrial disputeswhich arise out of a difference between the employer and the employeesin a factory in relation to a claim made merely by one man, cases forexample, where one man is unfairly victimised, or is unfairly victimisedin the estimation of his fellow employees, and his fellow employeesmay make themselves parties to the dispute because they may say :“ Unless this man is treated in the way in which we think that heought to be treated, there is going to be trouble ”. Or there may beother reasons which cause men to be interested and to wish to makethemselves parties to a dispute which concerns only the claim of oneman. Without being materially affected, other people may feel that theirprospects of promotion are injured generally. They may be interestedin the principle of the thing. They may say : f If a person of the lengthof service of Mr. Carreck is not promoted, what is going to happen tous when we get to that stage ? Or there may be, on the facts whichI have recounted, some general principle involved in the dispute onwhich this particular claim happens to be founded which is selected as
a test action, He stated later, <f We think that there is no
reason why persons should not make themselves parties to a disputealthough they are not workers to whom the award applies. For thereasons which we have given, questions of general principles, matters ofsupporting or assisting a fellow worker, make them parties to thedispute although they are not people to whom the award is going toapply. I suppose that somewhat similar considerations apply to theordinary case where a guarantor is interested in the construction of acontract although he need not be strictly a party to whom the contract
i (1957) 2 A. E. R. 776.
TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
501
applies ”. Again, where a Union boycotted a company claiming to actin furtherance of a trade dispute and the Court found that the Unionwas actuated by inter-union rivalry rather than interested in the termsof employment of the workers, an injunction was issued on the groundthat it did not appear that there was any trade dispute, vide
J.T. Stratford & Son Ltd. v. Lindley and another.1
I should state that the learned Acting Attorney-General, who appearedfor the 3rd respondent, submitted that documents before this Courtshowed that the employee had been suspended by the petitioner-Company without any reason being assigned for his suspension; that theemployee requested the petitioner-Company to state the grounds of hissuspension and that he received no reply to his request but was summarilydismissed. He, therefore, contended that the dismissal of the employeewas in consequence of an industrial dispute that had arisen between theparties and he further submitted that if there was in fact an industrialdispute the faulty formulation of the dispute at the time it was referredfor settlement by arbitration did not afford a sufficient basis for theexercise of the powers of this Court to issue a writ of prohibition. LearnedCounsel who appeared for the 2nd respondent, who is the person mostnearly concerned in the success or failure of the application, was contentto have the matter decided on the footing that the dismissal of theemployee, the 2nd respondent, was not consequent upon a prior disputebetween the parties. In view of this and in view of the finding I havemade in regard to the matters argued, it was not necessary to deal withor decide the matters raised by the learned Acting Attorney-General.
Upon a consideration of all the matters set out above, I hold that thedispute between the petitioner-Company, and the 2nd respondent, wasan industrial dispute which the Minister had power to refer for settlementby arbitration and that consequently the 5th respondent has jurisdictionto hear and determine that dispute. The application of the petitioner isaccordingly dismissed with costs payable to the 2nd and 3rd respondents.The amount of costs payable to each of the said respondents is fixedat Rs. 1,050.
Tennekoon, J.—
This is a case in which the petitioner, the Colombo ApothecariesCompany Limited ( hereinafter referred to as Cf the Company ’ ’ ) appliesfor a Mandate in the nature of a Writ of Prohibition on the 5th respondentwho is a Labour Tribunal President forbidding him from entertaining,hearing or determining or continuing the proceedings in relation to anIndustrial Dispute referred to him by the Minister of Labour forsettlement by arbitration under section 4 (1) of the Industrial Disputes.Act (Chapter 131).
*(196i) 3 A. E. E. 102.
502 TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesoorii/a
The Minister’s order was accompanied by a statement prepared by theCommissioner of Labour (4th respondent) setting out, in terms of section16 of the Act, the matter in dispute in the following terms :—
cc In the matter of an industrial dispute
between
Mr. M. T. Marikar Bawa, No. 9, Zaleski Place, Colombo 10, and theColombo Apothecaries Company Ltd, P. O. Box 31, Prince Street,Colombo, is whether the termination of the services of Mr. M. T. MarikarBawa is justified and to what relief he is entitled.
Date at the Office of the Commissioner of Labour Colombo this 12thday of April, 1967.”
The same dispute had earlier been referred to one Mr. E. A. VVijesooriya(1st respondent) who declined jurisdiction on the basis of certain SupremeCourt decisions prevailing at that time. Those decisions of the SupremeCourt were overruled by the decision of the Privy Council in the case*of The United Engineering Workers’ Union v. K. W. Devanayagam1prononunced on March 9, 1967. The Minister’s reference of the samedispute to the 5th respondent was made after the Privy Council’sdecision. The present application to this Court was based on theground inter alia that the 5th respondent had no jurisdiction to dealwith the dispute referred to him for the reason that such of theprovisions of the Industrial Disputes Act which gave power toLabour Tribunals to hear and determine disputes of this naturewere unconstitutional. When this matter was first listed before aBench of two Judges, of whom My Lord the Chief Justice wasone, Counsel for the petitioner indicated that despite the PrivyCouncil decision in The United Engineering Workers Union v. K. W.Devanayagam6 the constitutional attack on the Industrial Disputes Actwas still open to him, as in his submission, any pronouncements madeby their Lordships of the Privy Council on the question arising in thiscase were obiter or at least that the facts relating to the question ofjurisdiction in the Privy Council case were capable of being distinguishedfrom the facts that arise in the instant case. My Lord the Chief Justicebeing of opinion that it was desirable in the public interest that a questionof such a nature should be clearly and finally settled, referred the matterto a Bench of seven Judges. It is in this way that this matter has comeup before the present Bench consisting of that number of Judges.
At the argument, however, Counsel for the petitioner indicated thathaving examined the matter further he found it unnecessary to supporthis case on the ground that so much of the Industrial Disputes Act whichauthorises the Minister to refer a dispute relating to termination of’ theservices of a workman for settlement to a Labour Tribunal was unconsti-tutional and void; he stated that he intended to support the
1 (1967) 69 X. L. R. 289.
503
TENNEKOON, «J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
•
application on a ground which, if it was narrower because it had nothingto do with constitutional law, was equally important, viz. that the 5threspondent’s lack of jurisdiction arose not from any unconstitutionalityin the enabling Act, but for the reason that the dispute referred to the 5threspondent was not an “ industrial dispute ” within the meaning of theIndustrial dispute Act.
It would appear from the affidavit of the petitioner—and these factsare not disputed by any of the respondents—that the 2nd respondentMarikar Bawa was employed by the Compnay as an Assistant ; and thathis services were summarily terminated on or about the 5th of April 1905on the ground that he had been ‘ guilty of gross insolence, rudeness,insubordination, disobedience, defiance of authority and disrespect ’ ;subsequent to the said termination of his services the 2nd respondentdisputed the legality and propriety of his dismissal by the Company andbrought his dispute with the Company to the notice of the Commissionerof Labour, and through him to the Minister of Labour.
It is contended by Counsel for the petitioner that at the time this disputearose the relationship of employer and workman no longer existed betweeifthe Company and the 2nd respondent. It is therefore submitted thatalthough it may be said that there was and is a dispute or differenceconnected with the termination of the services of a person, i.e., the 2ndrespondent, that dispute was not one “ between an employer and aworkman ” within the meaning of that expression as used in thedefinition of the term ‘‘ industrial dispute ” as found in the Act.
The expression “industrial dispute” has been given the followingdefinition in the Act :—
“ In this Act, unless the context otherwise requires—
* industrial dispute ’ means any dispute or difference betweenan employer and a workman or between employers and workmenor between workmen and workmen connected with the employmentor non-employment, or the terms of employment, or with the condi-tions of labour, or the termination of services, or the reinstatementin service, of any person, and for the purpose of this definition‘ workmen ’ includes a trade union consisting of workmen. ”
It is necessary for the purpose of examining the meaning of theexpression “ any dispute or difference between an employer and aworkman ”, in the first instance to look at the meaning attributed tothe words r employer ’ and f w'orkman ’ in the Act. These twro wordsare defined as follows :—
“ Employer ” means any person who employs or on whose behalfany other person employs any workman and includes a body ofemployers (whether such body is a firm, company, corporationor trade union) and any person who on behalf of any other personemploys any workman.
504 TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
“ Workman ” means any person who has entered into or worksunder a contract with an employer in any capacity, whether thecontract is expressed or implied, oral or in writing, and whetherit is a contract of service or of apprenticeship, or a contractpersonally to execute any work or labour, and includes any personordinarily employed under any such contract whether such personis or is not in employment at any particular time, and, for thepurposes of any proceedings under this Act in relation to anyindustrial dispute, includes any person whose services have beenterminated.
Employer ”, one observes at once, is defined by reference to “ work-man ” ; the verb “ employs ” occurring repeatedly in the definition is in thepresent tense ; the grammaticalf object ’ of that verb is c any workman ’ (inthe singular) and not f any workmen * (in the plural ) ; if the plural wasused it would have suggested a continuum of activity as the test foridentifying an “ employer But the contrary is the implication here.It seems to me that a person is an ‘ employer ’ within the meaning ofthis definition only in relation to another or others (i.e., a workman orworkmen) with whom there is a subsisting contract of service. A maybe an employer in relation to X or in relation to X, Y, and Z who areworkmen serving under him, but not in relation to M or M, N and Owho are not employed under any person or who are employed under Bbut not under A.
To turn now to the definition of the word “ workman ” ; it falls intothree parts, the 2nd and 3rd only serving to extend its ordinary meaning :
any person who has entered into or works under a contract withan employer in any capacity, whether the contract is expressedor implied, oral or in writing, and whether it is a contract ofservice or of apprenticeship, or a contract personally to executeany work or labour,
any person ordinarily employed under any such contract whether
such person is or is not in employment at any particular time,
for the purposes of any proceedings under the Act in relation to
any industrial dispute, any person whose services have beenterminated.
The third part is an extension of the meaning to be applied in limitedcircumstances and will be considered later.
The first two parts of the definition are a verbatim reproduction of thedefinition of the word “ workman ” occurring in the Trade UnionsOrdinance. This had necessarily to be so because the expression “ TradeUnion ” occurs repeatedly throughout the Act and is defined as “ ftnytrade union registered under the Trade Unions Ordinance ”.
TEN1STEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 505
The first part of the definition gives the primary meaning of theexpression. What is important to note about it is that it postulates asubsisting contract of service. Thus, under this part, if the contract isat an end there would be no employer (so far as that workman isconcerned) and no workman.
The second part of the definition of * workman * partially overlaps thefirst. It deals with persons who belong to a particular class, i.e., personswho are ordinarily workers whether or not they are under contracts ofservice at any particular given time. This part in so far as it catches upa person who has at any given time a contract of service is tautologousas such a person is already a workman under the first part of thedefinition. The importance of this part however lies in the fact that itbrings within the meaning of the term f workman * persons who arer ordinarily ’ employed under contracts of service but who at any giventime are not employed under such contracts of service. Thus we havethe word ‘ workman ’ catching up within its meaning a person who atany particular given time has no contract of service and no employer.This extension of the meaning of the term ‘ workman ’ is understandablyimportant in Trade Union Law where it is necessary to enable a workmanto remain a member of his trade union notwithstanding the terminationof his contract of service by dismissal, resignation, retrenchment or layingoff. In the Industrial Disputes Act which itself gives such a prominentand significant place to trade unions, the work r workman ’ when usedin relation to trade unions would naturally bear the meaning signifiedin both parts of the definition. Vide such expressions as “a tradeunion of workmen ” or “ a trade union consisting of workmen ” ; buteven a cursory examination of the Act will show that the word c workman ’in other contexts bears only a limited meaning and that too the meaningset out in the first part of the definition : for example, in the expressions“ reinstatement of any workman ”, “ discontinuance of any workman ”and “ workman who was dismissed ” the term ‘ workman 5 means aperson who (immediately prior to termination of his services) was aworkman within the meaning of the first part of the definition ; in theexpression “ no workman shall commence, or continue, or …. a strike ”(section 32 (2)) the word workman means a workman within the firstpart. Thus in many contexts the second part of the definition does notcome into play at all.
If we may now come back to the difinition of the term “ industrialdispute”, this too falls readily into three parts:
there must be a dispute or difference
506 TENNEKOON, J.—Colombo ^Apothecaries Co. Ltd. r. Wijesooriya
the dispute or difference must be between an employer and a
workman or between employers and workmen or betweenworkmen and workmen (the word ‘ workmen ’ being read asalso including a trade union consisting of workmen),
the dispute or difference must be connected with the employment
or non-employment or the terms of employment, or with theconditions of labour or the termination of the services or thereinstatement in service of any person.
The first part refers to the factum of a dispute or difference ; the secondpart to the parties to the dispute and the third to the subject matter ofthe dispute.
* The nature of the submission made by Counsel for the petitioner issuch that it is necessary before examining it to have some regard to thetrue scope and effect of the definition in its wider aspects.
If we look first at the third part of the definition (i.e., the nature of thesubject matter of the dispute) one important feature to be noted is thatwhile in the second part the parties are described by reference to such wordsas “ employers ” and “ workmen”, the legislature in describing the subjectmatter of the dispute did it by reference not to c any workman ’ but byreference to r any person Now it becomes obvious upon a carefulexamination of the definition that the expression ‘ any person ’ is not aswide as it at first sight appears. It cannot include for instance a personin the employment of the Crown or the Government (see section 49 whichprovides that the Act is not to apply to the Crown or the Government orto workmen of the Crown or the Government) ; further limitations on itsmeaning became apparent when one reads it in the various permutationsand combinations of words of which the definition is capable. Forexample when read with the words “ non-employment ” the wordsc of any person * can only mean a candidate for employment under theemployer with whom the dispute or difference has arisen ;. when read with“ the termination of the services or the reinstatement in service”, theexpression “ of any person ” can only refer to a person recently dischargedfrom the service of the employer who is one of the parties to the disputethat has arisen. Thus it would appear that the words f any person ’ referto a person in service, or a person discharged from service or a candidatefor employment. But it is unnecessary, at least for the purposes of thiscase, in which the question does not directly arise for consideration, to
TENXEKOOX, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya 507
give an unduly restricted meaning to the words ‘ any person 1 ; whileprima facie they appear to refer to any person who is in service or has beenrecently discharged from service or who is a candidate for employment,it can also catch up a person in whose employment, non-employment,terms of employment or conditions of labour or in whose termination ofservices or reinstatement in service the workman or workmen raisingthe dispute have a substantial interest or a community of interest.It is in this sense that the words f any person ’ occurring in a somewhatsimilar definition of f industrial dispute ’ ir the Industrial Disputes Act(1947) of India has been understood by the Indian Courts (see the case ofWorkmen D. T. E. v. Management D. T. E.1.) What is important to note,of course, is that the legislature, in using the expression ‘ any person ’instead of the term f workman ’ in that portion of the definition of‘ industrial dispute ’ which relates to the subject matter of the dispute,used an expression wide enough to include a person who is not a de factoor de jure workman in its primary sense and into this class would fall botha person who has never had employment before and also a person wh®having been in service has been discharged.
To turn now to the parties to an industrial dispute : Under thedefinition an industrial dispute can arise only—
between an employer and a workman,
between employers and workmen,
between workmen and workmen.
It should be noted that in (i) the word ' workman ’ can also be read inthe plural and that the word ‘ workmen ’ includes a Trade Union consistingof workmen.
Beiore proceeding to examine the question whether the expressions“ employer ” and “ workman ” as used in the definition of e industrialdispute ’ are subject—if at all—to any contextual limitation, it isnecessary to remind oneself of the scope and objects of the Act. Thelong title of the Act reads :
“ An Act to provide for the Prevention, Investigation and Settlement
of Industrial Disputes, and for matters connected therewith or incidental
thereto.”
It has been said frequently, and quite recently reiterated by theirLordships of the Privy Council that the purpose and object of the Act isthe maintenance and promotion of industrial peace ; and it may be added
1 A. I. R. 1958 S. C. 353.
508
TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
•
that the preservation of industrial peace is directed not to the redress of
private and personal grievances but to the securing of the uninterruptedsupply of goods and services to the public by employers engaged in suchenterprises. The Act takes as the prime danger to industrial peace thatkind of situation which is capable of endangering industrial peace andgiven it the name “ industrial dispute ”. In the definition of industrialdispute the emphasis is thus not on the denial or infringement of a right ofa workman by his employer but on the existence of a dispute or differencebetween given parties connected with the rights not merely of a party tothe dispute but also of third parties. (I use the word f right ’ and f wrong ’in this context not in the sense of legal rights and wrongs but in thelarger sense in which right and wrong may be determined by reference toequitable standards of employment and labour.) The reliefs contem-plated are not mere redress of individual wrongs. The purport and direc-tion of the proceedings in relation to an industrial dispute is settlementof the dispute and the avoidance of a disturbance of industrial peace ;*relief or redress to individual workmen is only incidental to the moreimportant function of restoring peace. It is in this background that onemust examine the meaning and intent of such phrases as ce a dispute ordifference ”, “ between an employer and a workman ” or “ betweenworkmen and workmen ” occurring in the definition of industrial dispute.I am not for a moment suggesting that the words ‘ employer ’ and‘ workman ’ appearing in the definition of “ industrial dispute ” can begiven a meaning outside the sense in which they have been defined.What Counsel for the petitioner submits, and I think correctly submits,is that the words c employer ’ and ‘ workman 5 receive a limitationin their meaning from the context and that, that limited meaning isstill within the definitions.
Take for instance the following collocation of words from the definitionof “ industrial dispute ” :—
<fa dispute or difference between an employer and a workman
connected with the non-employment of a person. ”
In my opinion the phrase “ between an employer and a workman ” canonly mean “ between an employer and one of his workmen ”. This isthe result (i) of the juxtaposition of the word f employer ’ and the word‘ workman ’ each of which is necessary to complete the meaning of theother and (ii) of the concept of an industrial dispute as one which iscapable of disrupting industrial peace and one which must be settled toremove the danger to industrial peace. If A is the employer, B ode of
TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
509
his existing workmen, and C a person who has been discharged and refusedre-employment by A, a dispute or difference between A and B inconnection with A’s non-employment of C would be an industrial dispute,because, granted a community of interest between B and C, B’s disputewith his employer A can snowball into a dispute between A and manymore of his existing workmen resulting in a strike in A’s establishment,and reducing or stopping production. On the other hand a disputebetween employer A and the applicant for employment C who it must beassumed has been unable to find any support among the existingworkmen of A does not contain any danger to industrial peace either inA’s establishment or elsewhere. This would be so even if C is indeed aworkman under another employer E at the time A rejects his applicationfor employment under him.
A similar analysis can be made of the collocation of words “ a dispute ordifference between an employer and a workman connected with thetermination of the services of any person ”. It is only necessary toemphasise that a dispute between the one-time employer and his one-time employee who is unable to find one single workman in the service ofhis former employer to take up his cause, constitutes no danger toindustrial peace. Thus in the context under consideration ‘ employer ’means the person under whom the workman with whom the disputearises has a subsisting contract of service or under whom he is actuallyworking under a contract of service ; and c workman ’ similarly meansa person who has a subsisting contract or works under a subsistingcontract of service with the employer with whom the dispute arises.In short the expression a dispute or difference between an employer anda workman ” means only a dispute or difference between an employer andone of Ms workmen and not between an employer and any person who is aprospective or discharged employee of his or a person who is a workmanunder some other employer.
Even if the plural form of the word f workman ’ is taken the resultis the same. Counsel for the 2nd respondent suggested that it would beanomalous if in a case where an employer dismissed all his workmenthe dismissed ex-workmen could not raise a dispute amounting to anindustrial dispute within the meaning of the Act ; the answer in myopinion is that a dispute between the dismissed workmen and theirformer employer constitutes no danger to industrial peace ; there is nodanger to the community by a possible cessation of production or thesupply of services. The * employer ’ in question may have dismissed allhis nvorkmen ^because he was selling the business, or because he was
510 TEXNEKOOX, J.—Colombo Apothecaries Co. Ltd. v. Wijesoorii/a
employing a whole set of new hands or because he was closing down hisbusiness completely ; in the first two cases production or supply will goon despite the dispute between the ex-employer and ex-workmen, and inthe third case the stoppage of production or supply of services is causednot by reason of the dispute between the two parties but by reasonof the exercise of the ordinary right of an entrepreneur to give up hisbusiness, which is not a matter which the Act as it stands at presentconcerns itself with.
This view of the meaning of the term " workman ” when used in theexpression “ a dispute or difference between an employer and a work-man ” receives support from other parts of the Act. The most importantof these is the last part of the definition of the wrord “ workman ” :
“ and, for the purposes of any proceedings under this Act in relation
to any industrial dispute, includes any person whose services have
been terminated. ”
Now it seems to me that this part of the definition (which w'as intro-duced by an amendment in 1957 (Act No. 62 of 1957) contemporaneouslywith the insertion of the words “ or the termination of the services orthe reinstatement in service ” into the third part of the definition of"industrial dispute ”) only makes explicit what was implicit before. Itis not strange to find the legislature doing this in an Act w'hich givesjudicial (or at least quasi-judicial) functions to lay persons and beforewhom experience has shown, lawyers spend interminable hours splittinghairs on the meaning of wrords. Whatever else it does this amendmentdoes not import any new meaning to the expression ‘ industrial dispute ’as defined in the Act. The amendment does not say that for the purposesof determining whether an industrial dispute exists or has arisenconnected with the termination of the services of any person, the w'ord‘ workman ’ shall include the person wrhose services have beenterminated. There is no need, even were it a proper function ofinterpretation, to take such liberties with the language used by Parlia-ment vThen one has regard to the scope and object of the legislation.Indeed, when one bears in mind the fact that Act No. 62 of 1957 alsobrought in Part IVA into the Act enabling a dismissed workman to seekprivate relief and redress in connection with the termination of hisservices even in eases where such termination has not given rise to anindustrial dispute calling for the intervention of the public authorities,the need for straining the language used by the legislature under a supposedspirit of giving a liberal interpretation to social legislation*does not at all
511
TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
arise. The amendment, to my mind merely, ex abundanti cautela,removed a terminological anomaly of referring to a person no longer inservice as a workman in numerous provisions of the Act dealing withproceedings and powers of various authorities and tribunals in relation toan industrial dispute. If the amendment has done anything it has finallyclosed the door to any suggestion or contention that a person whosecontract of service has been terminated is still a workman for thepurpose of deciding the question whether an industrial dispute connectedwith the termination of services exists between an employer and aworkman ”.
Further indication of the legislative intent is to be found in section47 C which is also a provision that was introduced by Act No. 62 of1957. It reads as follows :—
“ 47 C. Notwithstanding that any person concerned as an employesin any industrial dispute has ceased to be such employer—
(а)such dispute may be referred for settlement to an industrial courtor for settlement by arbitration to an arbitrator and proceedingson such reference may be taken by such court or arbitrator ;
(б)if such dispute was so referred for settlement while such personwas such employer, proceedings on such reference may becommenced or continued and concluded by the industrialcourt or arbitrator to which or whom such reference wasmade, and
in any award made by such court or arbitrator such person maybe ordered to pay to any other person concerned in suchdispute as a workman employed by the first-mentioned personw'hile he was such employer any sum whether as wages inrespect of any period during which such other person wasemployed by the first-mentioned person or as compensationas an alternative to the reinstatement of such person, andsuch order may be enforced against the first-mentioned personin like manner as if he were such employer.”
This section is dealing with a case where the employer-workmanrelationship between one person and another or others contemplated inth^definitior^of the term ‘ employer ’ and in the first part of the definitionof the term c workman ’, has ceased. It is also evident from the wording
512 TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
—«
of the section that the dispute under contemplation had arisen prior
to the cessation of that relationship. It then goes on to provide in sub-paragraph (a) that such a dispute may be referred for settlement to anIndustrial Court or to an arbitrator (which expression includes a LabourTribunal) ; and sub-paragraph (6) further provides that if such disputehad been referred while the employer-workman relationship subsisted,proceedings may be commenced and/or continued by the IndustrialCourt or arbitrator.
This section to my mind completely supports the submissionmade by Counsel for the petitioner that a dispute connected withthe termination of services can be referred to an Industrial Court or aLabour Tribunal for settlement only if the dispute arose while therelationship of employer and workman subsisted ; and on the principleinclusio unius exclusio alterius a dispute on such a matter which arisesbetween an ex-employer and an ex-workman after the employer-workmanrelationship has ceased to exist is not an industrial dispute within themeaning of the Act.
It has been contended by Counsel for the 2nd respondent that the word‘ workman ’ is used in other parts of the Act to include a person who hada contract of service which had been terminated. He referred us to someinstances of which I will take three (i) 31B (1) which enables a workmanto apply to a Labour Tribunal for relief or redress in respect of the termi-nation of his services by his employer ; (ii) section 33 (1) (6) which speaksof the reinstatement in service of his former employer of any ‘ workman ’and (iii) section 33 (1) (d) which speaks of payment by any employer ofcompensation to any e workman Counsel for the 2nd respondent submitsthat in all these cases the legislature was applying the term f workman ’to a person whose contract of service had been terminated and there isno reason why the word f workman * should not be read in that sense inthe definition of “ industrial dispute ”.
What is important to note here is that the legislature is using theword ‘ workman ’ in referring to a person who was once within the firstpart of the definition of the term ‘ worktnan ’ and whose contract has beenterminated ; it is not suggested that a person who had a contract of servicewhich has been terminated is a workman by virtue of the second partof the definition ; indeed such a contention is not possible for the reasonthat, as noted earlier in this judgment, the essence of tha second partof the definition of ‘ workman ’ is the absence of a contract of service
TENNEKOON, J.—Colombo Apothecaries Co. Ltd. v. Wijesooriya
513
and an employer to complete the concept of a workman, whereas in eachof the instances under consideration there is an employer in contemplationwho has terminated the contract of service.
It will now be seen that in sections 3IB (1), 33 (1) (b) and 33 (1) (c)the context, which presupposes a termination of services, requires theattribution of a meaning to the word c workman ’ which is even outsidethe definition given in the Act ; for his contract having been terminatedhe does not fall into the first part of the definition ; nor into the secondpart for the reasons noted above ; nor into the third part unless the questionarises in the course of proceedings in relation to an industrial dispute. Isthere any similar contextual compulsion in the definition of the term* industrial dispute ’ ? It seems to me there is clearly no such compulsionfor here the expressions ‘ termination of services 5 and ‘ reinstatement inservice 5 are coupled not with the expression ‘ of a workman 5 but withthe expression ‘ of a person•
To uphold the contention of Counsel for the 2nd respondent would beto subscribe to the proposition “ once a workman always a workmanIf the contention that a person whose contract of employment has beenterminated still remains a workman for the purposes of the definition of“industrial dispute ” is correct it would mean that such a person couldraise an industrial dispute not only in regard to the termination of hisown services or the reinstatement of himself but also in regard to theemployment, non-employment, terms of employment or condition oflabour of any person other than himself, while he himself remainsunemployed or has become a servant under the Crown or indeed hasturned to business and become an employer himself.
For the reasons stated above I am of opinion that at the time the disputearose neither the company nor the 2nd respondent qualified as * employer ’or c workman ’ respectively within the meaning of those words in thephrase ‘ dispute or difference between an employer and a workman 1occurring in the definition of industrial dispute ; I accordingly hold thatthe Minister's order referring the alleged dispute between the Companyand the 2nd respondent is ziltra vires section 4 (1) of the Act and wouldallow the application for a Mandate of Prohibition on the 5th respondentwith costs payable by the 2nd respondent as to one half and by the 3rdrespondent as to the other.
Application dismissed.