AISLABY ESTATE LTD., Petitioner, and C. J. WEERASEKERA (President, Labour Tribun

049-NLR-NLR-V-77-AISLABY-ESTATE-LTD.-Petitioner-and-C.-J.-WEERASEKERA-President-Labour-Tribun.pdf


Aislaby Estate Ltd. v. Weerasekera
241
1973 Present : Pathirana, J., and Rajaratnam, J.
AISLABY ESTATE LTD., Petitioner, and C. J. WEERASEKERA(President, Labour Tribunal, Badulla) and others, Respondents
S. C. 231/69—Application -for Mandates in the nature of a Writof Certiorari and a Writ of Prohibition
Industrial dispute—Refusal by Minister to refer the dispute to a LabourTribunal—An administrative act—Right of the Minister to changehis mind subsequently—Collective agreement—Reference, there-under, of a dispute for settlement by a Board of Arbitrators—Termination of the collective agreement pending the arbitrationproceedings—Subsequent reference by Minister for compulsoryarbitration—Validity of such reference—Amplitude of theMinister’s power—Industrial Disputes Act (Cap. 131), ss. 3 to 9.
When there is an industrial dispute within the meaning ofsection 48 of the Industrial Disputes Act, a decision of the Ministernot to refer the dispute for settlement by arbitration to a LabourTribunal under section 4 (1) of the Act is an administrative act andnot a judicial or quasi-judicial act. The Minister can thereforere-examine the question and make a reference under section 4 (1) ifhe is of the opinion on a later date that the dispute should bereferred to a Labour Tribunal for settlement by arbitration. Themere fact that on one occasion he refused to exercise his powerunder section 4 (1) does not mean that he has exhausted his powerand is functus officio.
When an industrial dispute concerning the termination of theservices of a workman is referred, in terms of a Collective Agree-ment between an Employers’ Federation and a trade union, to aBoard of Arbitrators for adjudication, and, pending the proceedingsbefore the Board of Arbitrators, the Employers’ Federation termi-nates the said Collective Agreement under the provisions of section9 of the Industrial Disputes Act, section 4 (1) of the Act enables theMinister, thereafter, to refer the same dispute to a Labour Tribunalfor compulsory arbitration, even if the two parties to the CollectiveAgreement do not want the matter referred to arbitration. In sucha case, even if the Board of Arbitrators continue their sittings, withthe acquiescence of the parties, after the day on which the CollectiveAgreement stands repudiated, it cannot make a legally enforceableand valid award.
APPLICATION for a Writ of Certiorari and a Writ ofProhibition.
S. J. Kadirgamar, with S. C. Crossette-Thambiah, N. S. A.Goonetilleke and V. R. M.Perera, for the petitioner.
N. Satyendra, for the 2nd respondent.
S. Sivarasa, State Counsel, for the 3rd respondent.
Cur. adv. vult.
lxxvh—n
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3?ATHIRANA, J.—Aislaby Estate Ltd. v. Weerasekera
August 31, 1973. Pathirana, J.—
This is an application for a grant and issue of a Mandate inthe nature of a Writ of Certiorari to quash the order of the 1strespondent, the President of the Labour Tribunal (V), Badulla,dated 12th March 1969 and also for the grant and issue of aWrit of Prohibition prohibiting the 1st respondent from enter-taining and hearing or making any inquiries or making anyaward upon the reference made to him by the 3rd respondent,the Minister of Labour and Employment, under Section 4 (1)of the Industrial Dispute Act for a settlement by arbitration ofan industrial dispute between the Petitioner, Aislaby EstateLimited, and the 2nd respondent, the Ceylon Estates Staff Union,regarding the termination of the services of the 4th respondentW. K. Seneviratne, who was the Chief Clerk of the said estate.The 1st respondent had held, on a preliminary point of jurisdic-tion that the order of reference made by the 3rd respondent,the Minister, was not bad in law and that it was a valid reference.
Before I deal with the submissions of Counsel regarding thetwo points raised before us, it will be useful to recite the factsleading to the order of the Minister, the 3rd respondent, thelegality of which has been challenged in these proceedings.
On the 24th of December 1965, the Superintendent of AislabyEstate, which belonged to the Petitioner, terminated the servicesof the 4th respondent, the Chief Clerk of the said estate. ThePetitioner and the 2nd respondent, the Ceylon Estate Staff Union,which is a trade union registered under the provisions of theTrade Union Ordinance—Chapter 138, were bound by the termsof the Collective Agreement No. 1 of 1965, dated 9th March, 1965,entered into between the Ceylon Estate Employers Federationand the 2nd respondent and published in the Government GazetteNo. 14375 of 9th April 1965. The question of the said terminationwas upon a joint application of the Federation and the 2ndrespondent referred for adjudication under clause 7 (a) of thesaid Collective Agreement to a Board of Arbitrators for adjudica-tion on 23.6.1966. The Board of Arbitrators had commenced itsadjudication on 3.10.1966 and thereafter continued its adjudicationat ten sittings up to and including the 22nd of September 1967.By a letter dated 30.10.1966 the Federation gave notice to theCommissioner of Labour in terms of Section 9 of the IndustrialDisputes Act of its decision to repudiate the said CollectiveAgreement, and accordingly the said Collective Agreement stoodterminated and ceased to have effect on 30.11.1966 in terms ofSection 9 (2) (a) of the said Act. The Petitioners, however,had stated in the said notice of repudiation that the Federationacting for/and behalf of its members, including the Petitioner,
PATHTRAXA, J.—Aislaby Estate Ltd. v. tVeercsthera
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undertook that even if the said Collective Agreement ceased tohave effect, to proceed with the adjudication already pendingbefore the Board of Arbitrators constituted under the saidAgreement in the same manner as if the said Collective Agree-ment had full force and effect. The 2nd respondent to whom acopy of the said notice of repudiation had been sent, however,participated in the proceedings which had already commencedin spite of the said repudiation by the Petitioner of the saidCollective Agreement and continued to participate in theproceedings before the Board of Arbitrators till 22.3.1967,according to the Petitioner, “ even if the said CollectiveAgreement ceased to have effect and thus accepted or is deemedto have been accepted the said undertaking.”
On 22.3.1967 the 2nd and 4th respondents withdrew from theproceedings before the Board of Arbitrators and did not takeany further part in the proceedings. According to a letter sentby the 2nd respondent, the Union, to the 3rd respondent, theMinister, dated 23rd April 1967, the Union referred to therepudiation of the Agreement with effect from 30th November1966, and remarked that although the Federation offered thatthe cases of all disputes which were time barred from referenceto the Labour Tribunals shall be continued to the settlement inthe manner outlined in the Collective Agreement, the Union didnot, however, view this offer favourably because the Board ofArbitrators and their award now stood devoid of legality as aresult of the repudiation of the Agreement.
An application was made to the 3rd respondent by the 2ndrespondent to refer the matter in dispute between the Petitionerand the 2nd and 4th respondents in regard to the terminationof the services of the 4th respondent for arbitration underSection 4 of the Act. The 3rd respondent, the Minister, throughhis Permanent Secretary, informed the Union that the Ministerdid not intend to refer under the provisions of Section 4 of theIndustrial Disputes Act the dispute in question 1 ^ compulsoryarbitration. Subsequently, on the 15th of April 1968, the Minister,the 3rd respondent, purporting to act under Section 4(1) of theAct referred the industrial dispute between the Petitioner and the2nd respondent concerning the termination of the services ofthe 4th respondent for settlement by arbitration to LabourTribunal (V). The dispute was whether the termination of theemployment of the 4th respondent by the Management of thesaid Aislaby Estate was justified and to what relief he is entitledto. The President, Labour Tribunal, the 1st respondent,commenced inquiries under Section 17 of the Industrial Dispute"Act on the 20th of August 1968. The Petitioner raised objections
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to the jurisdiction of the 1st respondent to hear the inquiry orto make any award in terms of the order of reference made bythe Minister under Section 4 (1) of the Act.
The two main grounds urged by the Petitioner were asfollows : —
Firstly, the 1st respondent had no jurisdiction to hear thematter referred to him by the 3rd respondent, the Minister, underSection 4 (1) of the Industrial Disputes Act in that the 3rdrespondent having once decided that he would not refer thesaid matter under Section 4 (1) exhausted his power and couldnot thereafter in law alter or revoke his previous decision in theabsence of express statutory provision and/or in the absenceof fresh material brought to his attention and warranting afurther decision thereon.
Secondly, the dispute between the parties was referred, interms of the Collective Agreement, to a Board of Arbitrators,and once this Board commenced to function, it was vested withexclusive jurisdiction over the dispute. The subsequent repudia-tion of the Collective Agreement did not in any way invalidatethe pending arbitration proceedings or terminate the jurisdictionof the Board of Arbitrators and the said Board being thus stilllawfully seized of the ‘ dispute ’ there was no ‘ dispute ’ existingwithin the meaning of that expression in Section 3 or 4 of theIndustrial Dispute Act, enabling the Minister to make acompulsory reference to arbitration under Section 4 (1) of theAct.
The 1st respondent held on 12th March 1969, that the Minister’sorder was valid. The present application challenges this orderof the 1st respondent. I
I shall now deal with the first ground, namely, that the 3rdrespondent, the Minister, having firstly declined to exercise hispower under Section 4 (1) of the Industrial Disputes Act not torefer the matter under Section 4 (1) that he had exhausted hispower and he could not therefore in law alter or revoke his saidprevious decision in the absence of the express statutory provi-sion and in the absence of fresh material brought to his noticeand warranting a further decision thereon.
Section 4 (1) of the Industrial Dispute Act reads as follows : —
“ The Minister may, if he is of the opinion that an indus-trial dispute is a minor dispute, refer it, by an order inwrtiing, for settlement by arbitration to an arbitrator
PATHIRAJNA J.-—Aislaby Estate Eld. v. Weerasekera
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appointed by the Minister or to a labour tribunal, notwith-standing that the parties to such dispute or their representa-tive do not consent to such reference. ”
Mr. Kadirgamar, learned Counsel for the Petitioner, reliedstrongly in support of his argument on the case of GondharaTransport Co. Ltd. v. State of Punjab and others1—1966 A. I. K.Punjab, 354, where the Indian Court had interpreted a sectionalmost similar to Section 4 of the Industrial Disputes Act, butworded differently. Section 10 (1) of the Indian IndustrialDisputes Act (1947), is worded as follows: —
“ Where the appropriate Government is of opinion thatany industrial dispute exists or is apprehended it may atany time by order in writing, (d) refer the dispute or anymatter appearing to be connected with, or relevant to, thedispute, whether it relates to any matter specified in theSecond schedule or the third schedule, to a Tribunal foradjudication.”
In this case, it was conceded that it is settled law that oncethe appropriate Government had exercised its power underSection 10 (1) of the Industrial Disputes Act 1947 and made areference of an Industrial Dispute, it becomes functus officio andhas no jurisdiction to subsequently amend, cancel or supersedethe reference. By a parity of reasoning, it was argued whetherthe same principle did not apply to a case where the Govern-ment once having declared that the industrial dispute did notexist the Government becomes functus officio, and therefore itdid not have the power to refer the dispute to a tribunal foradjudication. Narula J., dealt specially with the use of the word“ at any time ” in Section 10 as a fetter to the power to referthe dispute to adjudication.
At page 360 he observed:'—
“ Considering the scheme, objects and purposes of therelevant provisions of the Act as a whole it appears to beclear that words “ at any time ” in Section 10 (1) of theAct refer to a period which commences with the issue ofdemand notice or with any other legal steps by which theproceedings are initiated for making a reference to a LabourCourt or Tribunal and which period terminates with anOrder of the appropriate Government either making areference or declining to make it for any valid reason. Oncethe Government has arrived at and given out its decisionone way or the other, Section 10 (1) of the Act ceases to exist 1
1 (1966) A. I. R. Punjab 354.
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for that particular dispute or demand and with such adecision of the Government the words “ at any time ”contained in Section 10 (1) of the Act also cease to operate. ”
It is relevant to note at this stage that the words “ at any time ”do not occur in our Section 4 (1) of our Industrial Disputes Act.
I am, therefore, of the view that, even if one grants that somesort of qualification is imposed by the use of the words “ at anytime ” in the Indian Act, any such qualification cannot beimported into Section 4(1) of our Act.
Narula J., further held in this case that in deciding whetheran industrial dispute exists between the parties or not,the appropriate Government does not appear to be exercisingany judicial function. It is not adjudicating on any res or lis. It isonly concerned with taking a preliminary step to enable adjudi-cation of an industrial dispute. However, Narula J., cited thecase of Supreme Court in Newspapers Limited v. State IndustrialTribunal,1 U.P. A.I.R. 1957 S.C. 532 which is as follows : —
“ In spite of the fact that the making of a reference bythe Government under the Industrial Disputes Act is theexercise of its administrative powers, that is not destructiveof the rights of an aggrieved party to show that what wasreferred was not an “ industrial dispute” at all and there-fore the jurisdiction of the Industrial Tribunal to make theaward can be questioned, even though the factual existenceof a dispute may not be subject to a party’s challenge.”
The decision of Narula J., in the Punjab case was not, however,followed in Good Year India Ltd., Jaipur v. Industrial TribunalRajasthana—1969 A.I.R.-Rajasthan 95, where it was held : —
“ A decision under Section 12 (5) not to make a referenceis an administrative act and not a judicial or quasi judicialadjudication and such a decision not having been investedwith stotutory finality by any provision of the Act, theGovernment can re-examine the question and make areference under Section 10(1), if it is of the opinion thatan industrial dispute exists or is apprehended. The earlierdecision by the Government not to make a reference doesnot operate as res judicata.”
1 U.P.A.l.R. 1957 S.O. 532.
* 1969 A.I.R. Rajasthan 95.
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Bhandradi J., however, dealing with the question whether thewords “ at any time ” in the Indian Section imposed the restric-tion or limitation as was held to be made out in the Punjabcase stated at page 105 as follows : —
“ The words “ at any time ” only emphasise that there isno restriction on the power of the appropriate Governmentto refer the industrial dispute provided that it is of opinionthat such dispute exists or is apprehended. There is norestriction or impediment for the appropriate Governmentto form one opinion which may be altogether contrary toits first opinion nor can a Court of law review the decisionof the appropriate Government to refer a dispute even thoughit has material on record that earlier that very Governmenthad refused to make a reference. ”
Bhandradi J., further held that:—
“This power is of purely administrative nature. Theexercise of this power depends entirely on the opinion ofthe Government and such opinion is subjective which cannotbe challenged in a Court of law.”
He further held that the power to make reference at anysubsequent time remains in the appropriate Government andunless there is an expressed prohibition in the exercise of thatpower, it cannot be said that the power is exhausted.
At page 103 he said : —
“ Having carefully considered the matter, my view is thata decision under Section 12(5) not to make a reference isan administrative act and not a judicial or quasi judicialadjudication and such a decision not having been investedwith statutory finality by any provision of the Act, theGovernment can re-examine the question and make areference under Section 10(1) if it is of the opinion that anindustrial dispute exists or is apprehended. The earlierdecision by the Government not to make a reference doesnot operate as res judicata. The fact that the appropriateGovernment had refused to refer an industrial dispute foradjudication could not bar the Government from sub-sequently referring the same dispute for adjudication,provided the conditions mentioned in Section 10(1) aresatisfied.”
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The Punjab case was also not followed in the Western IndiaWatch Co. Ltd. v. The Western India Watch Co. Workers’ Unionand others1—A.I.R. 1970 S.C. 1205, Shelat J., observed that thelegislature has left the question of making or refusing to make areference for adjudication to the discretion of the Government.But the discretion is neither unfettered nor arbitrary for thesection clearly provides that there must exist an industrialdispute as defined by the Act or such a dispute must beapprehended when the Government decides to refer it foradjudication.
At page 1209 Shelat J., after referring to several decided casesobserved : —
“ The reason given in these decisions is that the functionof the Government either under Section 10(1) of the CentralAct or a similar provision in a State Act being administrative,principles such as res judicata applicable to judicial Acts doapply and such a principle cannot be imported for considera-tion when the Government first refuses to refer and laterchanges its mind. In fact, when the Government refuses tomake a reference it does not exercise its power and it isonly when it decides to refer that it exercises its power.Consequently, the power to refer cannot he said to have beenexhausted when it has declined to make a reference at anearlier stage. There is thus a considerable body of judicialopinion according to which so long as an industrial disputeexists or is apprehended and the Government is of theopinion that it is so, the fact that it had earlier refused toexercise its power does not preclude it from exercising itat a later stage. In this view, the mere fact that there hasbeen a lapse of time or that a party to the dispute was, bythe earlier refusal, led to believe that there would be noreference and acts upon such belief, does not affect thejurisdiction of the Government to make the reference. ”
Mr. Kadirgamar submitted that as in the Western India WatchCo. Ltd., case, there was no new material placed before theMinister for him to exercise his power under Section 4 (1), afterhe had earlier declined to exercise his jurisdiction under thesame section. In these circumstances, he submitted that theMinister’s decision was wrong. He cited the following passageat page 1209 : —
“ In the light of the nature of the function of the Govern-ment and the object for which the power is conferred on it>
» A.l.E. 1970. S.C. 1205.
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it would be difficult to hold that once the Government hasrefused to refer, it cannot change its mind on a reconsidera-tion of the matter either because new facts have come tolight or because it had misunderstood the existing facts orjor any other relevant consideration and decide to make thereference.’3
It appears to me that Mr. Kadirgamar toned down his earlierargument that there was an absolute bar for the Minister torefer the matter under Section 4 (1) for compulsory arbitrationto the Labour Tribunal, after he declined to exercise the poweronce, by suggesting that even if the Minister had such a power,he could only do so if new facts had come to his mind or if hehad misunderstood the existing facts or for other relevantconsideration.
It is quite clear that on a reading of the Act, nowhere is itstated that under Section 4 (1) the Minister has to give hisreasons in making a reference or in refusing to make a reference.The discretion is entirely in the Minister whether or not to referthe dispute for settlement by arbitration. The Minister mayhave his own reasons as to why he decided to change his mind.It may be a question of policy, it may be the immediateexigencies of the situation, which demand industrial peace orany such similar circumstances which necessitate the reversalof his earlier decision. However, in this connection, I might referto the Judgment of Mehta J., in Good Year India Ltd., Jaipur v.Industrial Tribunal (Supra) at page 102 where he states : —
“ It has further been observed that it is hardly open todoubt that, as the power under Section 10 (1) has beenconferred upon the Government in the interests of industrialpeace, the amplitude of the power cannot be curtailed bythe importation of other principles unless there is anywarrant for them in the statute itself and that even if atone stage Government had come to the conclusion that noreference is called for in the interests of industrial peace,it may re-examine the matter, whether in the light of freshmaterial or otherwise, and make a reference if it comes tothe conclusion that a reference is justified, in the interestof industrial peace.”
He further observed at page 103 after citing a number of-cases: —
“ In 1963 2 Lab. L.J. 717 (Mys.) it has been held that theearlier decision refusing to refer the matter for adjudicationcould be re-examined in the light of fresh material or
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otherwise. According to this authority, re-examination of thematter was not solely dependent on fresh material. It waspermissible otherwise also.”
The Minister, therefore, being under no obligation to givereasons for his decision when he acts under Section 4 (1) andhis decision being an administrative act, he is the solejudge whether the industrial dispute is one that should bereferred for settlement by arbitration to the Labour Tribunaland this Court cannot objectively review that decision.
I, therefore, hold that subject to the requirement that there isan industrial dispute within the meaning of the Act and as definedin Section 48, the decision of the 3rd respondent, the Minister,,not to refer the dispute for settlement by arbitration to a LabourTribunal under Section 4 (1) of the Act, is an administrative actand not judicial or quasi judicial act, and such decision nothaving been invested with statutory finality by any provisionsof the Act, the Minister can re-examine the question and makea reference under Section 4 (1) of the Act, if he is later of theopinion that the dispute should be referred for settlement byarbitration to a Labour Tribunal. The mere fact that on oneoccasion he refused to exercise his power under Section 4 (1)did not mean that he had exhausted his power and was thereforefunctus officio.
Mr. Kadirgamar’s second submission, briefly, is that once theBoard of Arbitration was appointed in terms of the CollectiveAgreement, it was seized of the “ dispute ”, there was thereforeno “ dispute ” existing enabling the Minister to make acompulsory reference for arbitration under Section 4 (1) of theAct.
In support of his argument Mr. Kadirgamar submitted, firstly,that once the Board of arbitrators commenced the function tohear the dispute, it was vested with an exclusive jurisdictionover the dispute. The answer to this is that there is nothing in .the Act or in the Collective Agreement which states that oncethe Board commenced to function, it was vested with anexclusive jurisdiction over the dispute. The Collectiveagreement, no doubt, has to all intents and purposes statutoryforce by reason of the provisions of Sections 5, 6, 7 and 8 of theAct. There is nothing in the Act which states that if the matteris referred to arbitration, the jurisdiction of the Minister terefer the matter to the Labour Tribunal is thereby ousted. Infact Section 4(1) was introduced into the Act by an
amendment in 1957.
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Secondly, it was submitted that the subsequent repudiationof the Collective Agreement did not in any way invalidate thepending arbitratory proceedings or terminate the jurisdictionof the Board of Arbitrators. It was submitted that Section 9 ofthe Act only dealt with the termination of the CollectiveAgreement ; it says nothing about the effect of such atermination on matters affected by the termination such as inthe instant case of the pending arbitration. It will be-relevantat this stage to refer to the scope, nature and effect of theCollective Agreement in the light of the Industrial DisputesAct.
The Collective Agreement referred to in these proceedings hasbeen published in the Government Gazette No. 14,375 of 9thApril 1965 and has been entered into between the Ceylon EstateEmployers’ Federation on the one part and the Ceylon EstateStaffs Union on the other on the 5th of March 1965 in terms ofSection 6 of the Act and lays down the procedure for theresolution of disputes. The agreement came into force on the15th of April 1965. Clause 7 (a) of the Agreement enables thetwo parties on a joint application to refer the dispute to a Boardof Arbitration for adjudication. Clause 7 (b) states that it shallbe the duty of the Board of Arbitrators upon such reference beingmade to make such inquiries and hear such evidence as it mayconsider necessary and thereafter make an award which shallbe binding on all parties. Clause 7 (e) states that the Chairmanof the Board shall communicate the award of the Board to theSecretaries' of the Federation and the Unions respectively within30 days of the date of which the dispute is referred to the Boardfor adjudication. Section 7 (3) of the Act says where no periodor date is specified in any Collective Agreement as the periodduring which or the date until which the Agreement shallhave effect, the Agreement shall continue in force with effectfrom the date on which it comes into force as provided in sub-section (1) until it ceases to have effect as provided in Section9. Section 9 (1) enables any party to repudiate the Agreementby written notice in the prescribed form sent to the Commissionerand to every other party bound by the Agreement. Section 9 (2)says where a valid notice of repudiation of the CollectiveAgreement is received by the Commissioner, the Agreement towhich such notice relates shall terminate and ceases to haveeffect upon the expiration of the month immediately succeedingthe month in which the notice is so received by theCommissioner. The Collective Agreement in question containsno provisions specifying the period or date until which it shallcontinue to be in force. Therefore, in terms of Section 7 (3)
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read with Section 9 (2), it is agreed that the Collective Agree-ment in question terminated and ceased to have effect on the30th of November 1966.
Section 8 (1) of the Act reads as follows : —
“ Every Collective Agreement which is for the timebeing in force shall, for the purpose of this Act be bind-ing on the parties, Trade Unions, employers and work-men referred to in that agreement in accordance withthe provisions of Section 5 (2) ; and the terms of theAgreement shall be implied terms in the contract ofemployment between the employers and workmenbound by the agreement. ”
As a result of the repudiation of the Collective Agreement bythe Federation in terms of Section 9 (2) (a) of the Act theagreement terminated and ceased to have effect upon theexpiration of the month immediately succeeding the month inwhich the notice is received by the Commissioner—in this case,on 30.11.1966. The sittings of the Board of Arbitration commencedon 3.10.1966 and continued till 22:3.1967 on which date, accordingto the Petitioner the Union withdrew from the proceedings anddid not take any part thereafter. The resulting position, therefore,is that after 30.11.1966 the Board had not made an award interms of clause 7 (b) of the Collective Agreement.
If one takes one’s mind back to Section 8 (1) of the Act thebinding effect of the Collective Agreement on the partieswhereby, the terms of the agreement shall be the impliedterms of the contract of employment between the employers andworkmen, lasts only so long as the Collective Agreement is “ forthe time being in force ”. After 30.11.1966 the CollectiveAgreement terminated and ceased to have effect so that anyaward made in terms of clause 7 (b) by the Board of Directorsis not an award which is binding on the parties under clause7 (b). Once the Collective Agreement had ceased to have effectfrom 30.11.1966, its binding effect had no legal sanction. Thehonouring of the award by either party was purely on thevoluntary basis and was left to the good sense of the parties.
The 2nd respondent, the Union, was therefore correct in statingby its letter dated 27.4.1967 to the Minister that because theFederation unilaterally repudiated the agreement with effectfrom 30.11.1966, “ the undertaking given by the Union to proceedwith the pending arbitration was not favourably viewed by theUnion because the Board of Directors and their award “ nowstand devoid of legality as a result of the repudiation of the
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agreement ”. The circumstance that the Union, the 2nd respon-dent, did participate in the proceedings before the Board ofArbitrators till 22.3.1967 is, therefore, irrelevant.
In the result, even if the Board of Directors could havecontinued the sittings after the day the Collective Agreementstood repudiated, viz., 30.11.1966, it could not make a legallyenforceable and valid award.
Thirdly, it is submitted that the Board being lawfully seizedof the “ dispute ”, there was no dispute existing within themeaning of the expression in Section 4 of the Act enabling theMinister to make a compulsory reference to arbitration underSection 4 (1). Even assuming the correctness of this argumentall that can be said in its favour is that the Board was onlyseized of the dispute up to the 30th of November 1966, that isthe day on which the agreement stood terminated and ceased tohave effect. The Board, therefore, had no power to make anaward which was binding on the parties in terms of Section 8(1) of the Act and clause 7(b) of the Agreement, as the
agreement ceased to have all force on this date.
I, therefore, hold that the Minister acted intra vires his powerunder Section 4 (!) of the Act in referring the dispute to theLabour Tribunal on 15.4.1968 for settlement by arbitration inspite of the fact that the Board of Arbitrators was technicallyseized of the “ dispute ” up to the 30th November 1966. I
I go still further and take the view that Section 4 (1) of theAct vests the Minister with an amplitude of power (subject onlyto the fetter that he is referring an industrial dispute within themeaning of the Act) to order in writing once he is of opinion, thatthe Industrial dispute is a minor dispute for settlement byarbitration to the Labour Tribunal. His opinion, once it has beenformed and his reference of the dispute to the Labour Tribunalcannot be questioned by this Court, as the Minister is actingsolely in an administrative capacity and not judicially orquasi-judicially. The concluding words in Section 4 (1) : —“notwithstanding that the parties to such dispute or theirrepresentatives do not consent to such a reference ”, in fact,highlight the amplitude of power vested by Section 4 in theMinister to refer a dispute to a Labour Tribunal for adjudication.Even if the two parties to the Collective Agreement do not wantthe matter referred to arbitration, the Minister, nevertheless,under Section 4 (1) is vested with the power to refer the matterfor arbitration. To my mind, the legislature has prudently andadvisedly intrusted an amplitude of power in the Minister in thelarger interests of industrial peace. To take an extreme example,
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what if some dishonest set of office bearers of a Trade Unioncome to terms with the employers and team up with them inorder to defeat the legitimate interests of the workmen. In sucha case, industrial peace demands that the Minister must bevested with the power to afford an opportunity to the workmento have their demands referred to another tribunal, in this case,either the Labour Tribunal or an Industrial Court or anarbitrator as contemplated in Section 4. Section 4 thereforeprovides the necessary machinery for such an eventuality.
I, therefore, hold that the Minister’s decision under Section 4(1), in the circumstances of this case and his reference dated 15thApril 1968 to the Labour Tribunal (V) for settlement byarbitration cannot be questioned by the Court, and is a validdecision. In dealing with the power of the Minister to act underSection 4 (1) it will be relevant to quote the observations ofLord Esher in Queen v. The Commissioner for Special Purposesof Income Tax1—(1888) 21 Q.B.D. 313 at 319 : —
“ When an inferior Court or tribunal or body, which hasto exercise the power of deciding facts, is first established byAct of Parliament, the legislature has to consider whatpowers it will give that tribunal or body. It may in effect saythat, if a certain state of facts exists and is shown to suchtribunal or body before it proceeds to do certain things, itshall have jurisdiction to do such things, but not otherwise.There is not for them exclusively to decide whether thatstate of facts exists, and if they exercise the jurisdiction,without its existence, what they do may be questioned, andit will be held that they have acted without jurisdiction. Butthere is another state of things which may exist. TheLegislature may intrust the tribunal or body with ajurisdiction, which includes the jurisdiction, to determinewhether the preliminary state of facts exists as well asjurisdiction, on finding that it does exist, to proceed furtheror do something more. When the legislature is establishingsuch a tribunal or body with limited jurisdiction they alsohave to consider whatever jurisdiction they give them,whether there shall be any appeal from theirdecision, for otherwise there will be none. In thesecond of the two cases I have mentioned it is anerroneous application of formula to say that the tribunalcannot give themselves jurisdiction by wrongly decidingcertain facts to exist, because the legislature gave themjurisdiction to determine all the facts, including the existenceof the preliminary facts on which the further exercise oftheir jurisdiction depends. ”
1 (1888) 21 Q.B.D. 313 at 319.
PATHIRANA J.—Aislaby Estate Ltd. v. Weerasekera
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Mr. Kadirgamar has also cited the Western India Watch Co.Ltd. v. The Western India Watch Co. Workers’ Union and others 1in 1970 A.I.R. 1205 at 1209 (Supra) in support of the propositionthat where there is an agreement or settlement under thecorresponding Indian Act reference cannot be made to aTribunal for adjudication. The relevant passage quoted is atpage 1209 : —
“ No reference is contemplated by the Section when thedispute is not an industrial dispute, or even if it is so, itno longer exists, or is not apprehended, for instance, whereit is already adjudicated or in respect of which there is anagreement or settlement between the parties or where theindustry in question is no longer in existence. ”
He submitted that in the instant case the parties under theCollective Agreement had referred the matter for adjudicationto a Board of arbitrators. Our Section 4, in my opinion, is widerthan the corresponding Indian Section and as I pointed out, evenif the parties do not consent to such reference, the Ministeris empowered to such a reference. The Indian case therefore hasno application to our Section 4 (1) of the Act.
Before I conclude, I will be failing in my duty if I do no(refer to the inordinate delay this case has taken to dispose ofa preliminary point of jurisdiction. The workman was dismissedfrom employment on 21st December 1965 ; the Board ofArbitrators commenced their proceedings on the 3rd of October
and prematurely ended their sittings on the 22nd of March
The Collective Agreement was terminated on the 30thof November 1966. The Minister referred the dispute for theLabour Tribunal for arbitration on the 15th of April 1968 ; andthe President of the Labour Tribunal decided the preliminarypoint of jurisdiction on 12th March 1969. The application to thisCourt praying for a writ was made on the 20th of April 1969.Our order today is merely disposing of the preliminary pointof jurisdiction in favour of the workman, the 4th respondent,and the Union, the 2nd respondent.
Industrial legislation in this country has been enacted in theinterest of both the workers and the employers for the speedy,just and equitable disposal of their grievances. It is a sadcomment that I have to make, that the machinery of the lawfar from adapting itself to the minimum standard of efficiencyin regard to the expeditious disposal of these matters, the speedof disposal of these cases has been slower than the proverbial
1 A.I.R. 1970 S.C. 1205 at 1209.
256
Wijepala v. Samydorai Nadar
snail’s pace. This case stands as a monument to this unsatisfactorystate of affairs. I do hope that the proper authorities will lookinto these matters and see that the necessary legal machineryis provided so that the workers and the employers will be ableto reap the benefits of Industrial Legislation without too muchinsistence on formalized procedure.
The resort to technical objections in a jurisdiction where thetribunal is expected to make all such inquiries and hear evidenceas may be tendered and thereafter make an award which appearsto the tribunal to be just and equitable, far from promotingindustrial peace only serves to perpetuate a state of cold warbetween the worker and his employer. I can, in thecircumstances of this case, only offer the worker, who has yetto go a long way to get his grievances adjusted, the hope thatthis matter will be disposed of expeditiously, and I do hopethat he can look forward to the charity of his employer to co-operate with the administration of justice so that no furthertechnicalities will be placed in the way of the Labour Tribunalin making a just, equitable and expeditious decision.
We are much obliged to Mr. Kadirgamar for the able assistancehe gave us by his exhaustive and useful written submissions.
I dismiss the Petitioner’s application with costs payable ina sum of Rs. 525 to the 2nd respondent and a sum of Rs. 525to the 3rd respondent.
Rajaratnam, J.—I agree.
Application dismissed.