011-SLLR-SLLR-1997-2-BEST-FOOTWEAR-PVT-LTD.-AND-TWO-OTHERS-v.-ABOOSALLY-FORMER-MINISTER-OF.pdf
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Best Footwear (Pvt) Ltd., and Two Others v. Aboosatty,
Former Minister of Labour & Vocational Training and Others
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BEST FOOTWEAR (PVT) LTD., AND TWO OTHERS
v.
ABOOSALLY, FORMER MINISTER OF LABOUR &VOCATIONAL TRAINING AND OTHERS
COURT OF APPEAL.
F. N. D. JAYASURIYA, J.
C.A. NO. 577/95.
ARBITRATION CASE NOS. A2376 TO A2378.
NOVEMBER 06. 1996 AND JANUARY 22. 1997.
FEBRUARY 06 AND MARCH 07.1997.
Industrial Dispute – Certiorari – Reference to arbitration under section 4( 1) of theIndustrial Disputes Act on issue of non-offer to a part of the workforce when entireworkforce went on strike – Award – Relevance of issue of justification of the striketo the terms of reference – Vacation of post – Back wages – Considerationsrelevant to issue of back wages – Emergency Regulations Nos. 563/16 and 786/7of 25.9.93 – Certiorari distinguished from appeals.
Where out of a total of 169 workers that went on strike, there was a non-offer ofwork to 54 workmen and the rest were permitted to resume work the issue ofjustification of the strike is not relevant to the question of non-offer referred toarbitration under section 4(1) of the Industrial Disputes Act. An employercompany is not entitled to blow hot and cold, approbate the strike with regard tosome of the strikers and to reprobate the strike with regard to the 54 workmenwhose claims form the subject of the arbitration proceedings. The action andconduct of the management by offering work to a part of the striking workers isopen to be attacked as being tainted with the vice of discrimination, victimisationand therefore constituting an unfair labour practice.
The contention that the strike was illegal and unlawful as the workmen in questionwere engaged in manufacture of export commodities is not supportable as nocogent evidence was adduced on the point.
The contention that the trade union had not given 14 days notice of the strike tothe Commissioner of Labour as required by Regulation 2B framed under section 5of the Public Security Ordinance and therefore the strike was illegal and unlawfulwould be unsustainable and untenable on account of the operation of theretroactive provisions of Emergency Regulation No. 786/7 of 25.9.93. TheEmergency Regulation No. 1 of 1993 published in the Gazette ExtraordinaryNo. 771/16 of June, 1993 was amended by Emergency Regulation published inGazette Extraordinary No. 786/7 of 25.9.93 and as a result, even if 14 days noticeof a strike has not been given to the Commissioner of Labour and to the employerof the workmen, such omission is not deemed to be a contravention of theaforesaid regulation.
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Relief by way of certiorari in relation to an award made by an arbitrator will beavailable only if the arbitrator wholly or in part assumes a jurisdiction which hedoes not have or exceeds that which he has or acts contrary to principles ofnatural justice or pronounces an award which is eminently unreasonable orirrational or is guilty of a substantial error of law. The remedy by way of certioraricannot be made use of to correct errors or to substitute a correct order for awrong order. Judicial review is radically different from appeals. When hearing anappeal the Court is concerned with the merits of the decision under appeal. Injudicial review the court is concerned with its legality. On appeal the question isright or wrong. On review, the question is lawful or unlawful. Instead of substitutingits own decision for that of some other body as happens when an appeal isallowed, a court on review is concerned only with the question whether the act ororder under attack should be allowed to stand or not.
Per Jayasuriya, J: "In evaluating the evidence of a witness a court or tribunal isnot entitled to reject testimony and arrive at an adverse finding in regard totestimonial trustworthiness and credibility on the mere proof of contradiction or theexistence of a discrepancy. The deciding authority must weigh and evaluate thediscrepancy and ascertain whether the discrepancy does go to the root of thematter and shake the basic version of the witness. If it does not, suchdiscrepancies cannot be given too much importance … Before arriving at anadverse finding in regard to testimonial trustworthiness the Judge must carefullygive his mind to the contradictions marked and consider whether they arematerial or not and the witness should be given an opportunity of explaining thosecontradictions that matter … Witnesses should not be disbelieved on account oftrivial discrepancies and omissions and the Court should look at the entirety andtotality of the material placed before it in ascertaining whether the contradiction isweighty or is trivial”.
“The workers had a right conferred on them to launch a legitimate strike. Theright to strike has been recognized by necessary implication in the industriallegislation in Sri Lanka and there are numerous express statutory provisionsproviding for the regulation of strikes. It is, thus a recognised weapon of theworkmen to be resorted to by them for asserting their bargaining power andfor promoting their collective demands upon an unwilling employee".
The strike weapon is to be used as a last resort.
Though the workmen physically kept away from work during the period aftercessation of the strike, it is the background and the circumstances that inducedthem to keep away from the work place. There was no mental element to deserttheir employment imputable to the workmen in the proved circumstances of thecase.The plea of vacation of post is wholly untenable and unsustainable in law.
Generally an order for reinstatement carries with it an order for back wages fromthe date claimed by the successful applicant. However both the arbitrator and the
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Court of Appeal have a discretion in the award of back wages and the decidingauthority would scrupulously look at the conduct of the trade union and itsmembers who are the workers in exercising its discretion. In awarding backwages the deciding authority, in regard to the quantum of back wages, is requiredto make a just and equitable order which would have necessarily to reckon withthe impact of such an order on the financial stability and continued viability of theemployer company. If the cessation of work with its consequent loss in productionand financial detriment is due to the hasty, rash and precipitate action of the tradeunion, its officials and its membership, this is a matter to be taken into account.The conduct of the employer and misuse of the strike weapon are also relevant.
Cases referred to:
Barwada Boginbhai Hirjibhai v. State ofGujerat AIR 1983, 753, 755.
Attorney-General v. Visuvalingam 47 N.L.R. 286.
Uttar Pradesh v. Anthony MR 1985, S.C. 48.
Stanley Perera v. Yoosoof-Sah 65 N.L.R. 193,194.
M. M. K. Samson v. Provincial Transport Board, Kandy C. A. No. 28/87.
W. Nelson G. de Silva v. Sri Lanka State Engineering Corporation C.A.No. 21/89, C.A. Minutes of 26.6.96.
Somaratne v. Pullamaden Chetty & Sons Ltd., S.C. Appeal No. 160/7 – S.C.Minutes of 7.6.72.
APPEAL from award of arbitrator appointed under section 4(1) of the IndustrialDisputes Act.
V. C. Motilal Nehru, PC. with Mrs. N. P. Joseph for petitioner.
Gomin Dayasiri with Manouri Jinadasa for 4th respondent.
No appearance for 1 A, 1B, 2A, 2B and 3rd respondents.
Cur. adv. vult.
April 04, 1995.
N. D. JAYASURIYA, J.
The third respondent has pronounced his awards in the arbitrationCase Nos. A2376, A2377 and A2378 on the 5th of December, 1994and on the 9th of January 1995 and copies of these awards havebeen annexed to the petition marked A. B and C.
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The Minister of Labour and Vocational Training, by virtue ofthe powers vested in him in terms of section 4(1) of the IndustrialDisputes Act (as amended) had appointed the third respondentas arbitrator by the Minister’s order dated 10.1.94 and had referredthe disputes to be mentioned below to the third respondentfor settlement by arbitration. The second respondent, who isthe Commissioner of Labour, has drawn up the Terms of Reference(T7/41/92(1)) and forwarded such reference to the third respondentsetting out the matters in dispute between the parties as follows:“Whether the non-offer of work to 54 workers with effect from the2nd of March, 1992 by the Management of Best Footwear (Private)Limited and allied Companies after calling off the strike at itsfactory at Elaka, Ja-ela is justified and, if not, to what relief each ofthem is entitled.” The terms of reference expressly named theaforesaid 21, (award A2376), 15, (award A2377) and 18, (awardA2378) workers, respectively aggregating to a total number of 54workers who were the subject-matter of this arbitration inquiry. Theinquiry commenced before the arbitrator on the 17th of February,1994 and was concluded on the 21st of October, 1994 and his awardwas pronounced on the 5th of December, 1994 and on the 9thof January 1995.
Learned President's Counsel appearing for the petitionerimpugned the said award on two principal grounds. It was contendedinitially that the award was illegal, in that the learned Arbitratorhad misdirected himself when he came to the conclusion thatalthough much evidence was tendered before him at the arbitrationinquiry to the effect that the strike launched by the workers wasunjustified, yet the unjustifiability of the strike was not germane to thematter in dispute, which essentially concerned the issue whether thenon-offer of work to those workmen, after they had called off thestrike, was justified. It was strenuously argued on behalf ofthe petitioner that the crucial position taken up by the employercompany at the arbitration inquiry was that the strike in question wasunjustified and that the Arbitrator committed a grave error in law andgrievously misdirected himself in holding that the unjustifiabilityof the strike was not germane to the matter in dispute in thearbitration proceedings.
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Out of the workforce employed at the employer company'sworkplace, 169 workmen in the three distinct companies went onstrike. Out of the workmen who took part in the aforesaid strike, 101workmen were initially permitted to resume work and were offeredcontinued work by the employer after the cessation of the strike. Theevidence discloses that 54 workmen were refused work and theirclaims formed the subject-matter of the arbitration proceedings. Outof these 54 workers, 10 workers were alleged to have been refusedwork because they failed to comply with the two conditionsprecedent imposed by the employer. The arbitration inquiry, thus,related to the alleged non-offer of work to 54 workmen, of whom, it isalleged 44 workmen were not permitted to resume work at all,whereas 10 other workmen were required to signify an assent tocertain conditions and when they refused to comply with theconditions, they were also refused work. Thus, it is an admitted factthat out of the total of 169 workers who went on strike, there was analleged non-offer of work to 54 workmen but the rest of theworkmen who went on strike were permitted to resume workafter the strike. This factual background is a crucially importantfeature in the attendant circumstances of this application. It is in viewof those curious attendant circumstances that the terms of referencewere advisedly drawn up in the aforementioned manner. The issuebefore the Arbitrator was whether the non-offer of work to 54specified workers with effect from the 2nd of March, 1992 by themanagement, after calling off the strike, is justified. Certain workerswho took part in the strike have been permitted by the managementto resume work. To that extent it was argued that there wascondonation of the strike by the employer company – that theemployer company is not entitled to blow hot and cold, approbate thestrike with regard to some of the strikers and to reprobate the strikewith regard to the fifty four workmen whose claims form the subject ofthe arbitration proceedings. The action and conduct of themanagement by offering work to a part of the striking workers, it iscontended, is tainted with the vice of discrimination, victimisation andtherefore constituted an unfair labour practice. That was apredominant issue that was raised as a matter in dispute between theparties and the said terms of reference were advisedly drawn up toraise the aforesaid issue clearly for adjudication by arbitration. In
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view of the specific terms in which the reference was drafted, thequestion arises whether the learned counsel is justified in hisaforesaid impugnment of the awards. The Arbitrator, having correctlyconceived of the matter in dispute before him in this light heldlogically and analytically that the justifiability of the strike is notgermane to the matter in dispute before him, which is specificallywhether the non-offer of work to the aforesaid 54 workmen, after theyhad called off the strike was justified.
Learned President's Counsel appearing for the petitionercontended that the strike launched by the Ceylon Mercantile,Industrial and General Workers' Union (fourth respondent) on behalfof the workmen at the premises of Best Footwear (Pvt.) Ltd., VinylProducts (Pvt.) Ltd. and Lanka Vinyl Ltd. was illegal and unlawful inview of the provisions of the subsidiary legislation which governs theparticular issue as the workmen in question were engaged in themanufacture of export commodities. Vide the contents of the Gazettedated 24.6.1989 which was produced marked as X1. This identicalissue relating to the illegality and the unlawfulness of a strike onidentical media was raised before me in the case of Simca GarmentsLimited v. Ceylon Mercantile, Industrial and General Workers’ Union,C.A. Application No. 735/96, Arbitration Case No. A 2404, C.A.minutes of 13.11.96. The illegality and unlawfulness of the strike bothin the instant application and in the application which came beforethe Court of Appeal in the decision in Simca Garments Limited wasbased on the application of the Emergency Regulations bearingNo. 563/16 (marked as X1) which have been promulgated in terms ofthe Emergency Regulations of 1989, as amended. This particularEmergency Regulation does not become operative to both theaforesaid applications in view of the enactment of the subsequentEmergency Regulation No. 786/7 dated 25.9.93. The effect of thesubsequent Emergency Regulation is retroactive in character and itsets out that for all purposes the workmen are deemed not to havevacated their posts and their services are deemed not to have beenterminated and their strike is not illegal by reason of anything set outin the earlier gazetted regulations. Equally, a strike which waslaunched without giving sufficient time as prescribed in the law isdeemed by the operation of the retroactive provisions of the
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Emergency Regulation No. 786/7 dated 25.9.93 to be, nevertheless,lawful and legal. The basis and foundation on which the contentionsin regard to the unlawfulness and illegality of the strike which wereadvanced by learned President’s Counsel has been effectivelyremoved by an enactment of the subsequent Emergency RegulationNo. 786/7 dated 25.9.93. When this point was brought to the notice oflearned President’s Counsel in the course of the argument and hisattention specifically drawn to the decision in Simca GarmentsLimited application, he stated that in view of that judgment he is notpressing the point raised by him in regard to the illegality andunlawfulness of the aforesaid strike. Hence, the contention placedbefore this court that the trade union in question, that is the fourthrespondent trade union, had not given 14 days’ notice of the strike tothe Commissioner of Labour as required by Regulation 2B framedunder section 5 of the Public Security Ordinance and therefore thestrike was illegal and unlawful, would be unsustainable anduntenable on account of the operation of the retroactive provisions ofEmergency Regulation No. 786/7 dated 25.9.93. The EmergencyRegulation No. 1 of 1993 published in the Gazette ExtraordinaryNo. 771/16 of 17th June, 1993 was amended by EmergencyRegulation published in Gazette Extraordinary No. 786/7 of 25.9.93and as a result, even if 14 days’ notice of a strike to be commencedby a trade union has not been given to the Commissioner of Labourand to the employer of the workmen, such omission shall be deemednot to be a contravention of the provisions of the aforesaid regulation.The subsequent regulation bearing No. 786/7 dated 25.9.93 hasretroactive and retrospective operation and, therefore, is theregulation which is applicable to the issue raised by the learnedPresident’s Counsel.
Further, in regard to the stand taken by the employer company thatthe strike was illegal, the employer company failed to place cogentmaterial and evidence before the Arbitrator that any part of themanufactured products of the employer company was in factexported. The employer called a witness by the name of WilsonPerera and his evidence was to the mere effect that part of the goodsproduced was meant for local and foreign markets. It was thebounden duty of the employer company to have produced evidence
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before the Arbitrator that the products manufactured by the employerwere in fact exported and this fact could have been established bythe production of the registers maintained at the CustomsDepartment and other official documents emanating from propercustody. This fact could have been easily established if that was theactual position. However, the employer company failed to dischargethat onus. In the circumstances, the Arbitrator has very correctly heldthat no acceptable evidence has been tendered by the employercompany that the workmen concerned were “engaged in services,work or labour of any description, necessary or required to be donein connection with the export of commodities, garments or otherexport products” as stipulated by the regulation relied upon bylearned counsel for the employer company.
In considering and in evaluating the contentions and submissionsadvanced by learned President’s Counsel before this Court, I muststress that this court must necessarily have in the forefront of its mindthat it is exercising in this instance a very limited jurisdiction quitedistinct from the exercise of appellate jurisdiction. Relief by way ofcertiorari in relation to an award made by an arbitrator will beavailable to quash such an award only if the arbitrator wholly or inpart assumes a jurisdiction which he does not have or exceeds thatwhich he has or acts contrary to principles of natural justice orpronounces an award which is eminently unreasonable or irrational oris guilty of a substantial error of law. The remedy by way of certioraricannot be made use of to correct errors or to substitute a correctorder for a wrong order and if the arbitrator’s award was not set asidein whole or in part it had to be allowed to stand unreversed. I refer toa passage in the treatise on Administrative Law written by Prof. H. W.R. Wade (12th edition) at pages 34 and 35 which reads thus:“Judicial review is radically different from the system of appeals.When hearing an appeal the Court is concerned with the merits of thedecision under appeal… but in judicial review the court is concernedwith its legality. On appeal, the question is right or wrong? On review,the question is lawful or unlawful?… Judicial review is afundamentally different operation. Instead of substituting its owndecision fof that of some other body, as happens when an appeal isallowed, a court on review is concerned only with the question
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whether the act or order under attack should be allowed to stand ornot." Thus, the object of this Court upon judicial review in thisapplication is to strictly consider whether the whole or part of theaward of the Arbitrator is lawful or unlawful. This Court ought not toexercise its appellate powers and jurisdiction when engaged in theexercise of supervisory jurisdiction and judicial review over the awardof the Arbitrator.
Having considered carefully the two principal grounds raised bylearned President's Counsel in his impugnment of the Arbitrator’saward, I hold, for the reasons enumerated by me, that there is nounlawfulness and/or illegality in the award in these respects and theaward is lawful.
In regard to the issue of "non-offer of work” which is specificallyraised in the terms of reference, when the workers concernedreported for duty on the 2nd of March, 1992 after calling off the strike,the position of the trade union and the workers is that when theworkmen did report for work on the 2nd of March, 1992, theManagement had made arrangements to offer work only to thoseworkers who agreed to assent to two conditions. Firstly, that theworkers should resign from the trade union; and, secondly, that theybe taken in and given employment as new entrants. WorkmanM. Siripala has given evidence and stated in his oral evidence thatthey reported for work on the 2nd of March, 1992 and these twoconditions were wrongfully imposed and Siripala and many otherworkmen refused to accede to these two conditions and then theManagement refused to offer them work. Witness Siripala wassubjected to cross-examination and in the course of the cross-examination he was confronted with the contents of documents A22.A22A and A22B. Particularly in document A22B, which has beensigned by U. R. S. Manawasinghe and the witness M. Siripala, thesignatories to this written communication state that after ending thestrike on the 2nd of March, 1992, they had reported for work at 8 a.m.at the work place of the employer and on that occasion the officerson duty at the entry security point stationed at the work place, hadinformed the signatories that on the instructions of the Managementthat the signatories were required not to be permitted to enter thework place. Contents of these three documents and in particular
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A22B have been made use of by learned counsel for the employer toassail the credibility of witness Siripala. The Arbitrator has consideredthis contradiction and discrepancy between the oral evidence ofSiripala and the contents of document A22B and has arrived at theconclusion that this contradiction and discrepancy is not of suchgreat import. On a consideration of the contents of documents A22,A22A and A22B, it is clear that these letters have been written as aprotest by the general body to the Management. They are generalletters written by the workers as a whole, whereas document A23, incontract, is a specific letter written by another workman named.
A. Nimal Nandasena. In that letter there is a reference to theimposition of the condition that the worker is required to resign fromthe aforesaid trade union if he is to be offered employment. No suchcondition is set forth in documents A22, A22A and A22B. It is thisconsideration which has induced the Arbitrator to hold that thediscrepancy and contradiction is not of such great import. Inevaluating the evidence of a witness a court or a tribunal is notentitled to reject testimony and arrive at an adverse finding in regardto testimonial trustworthiness and credibility on the mere proof ofcontradiction or the existence of a discrepancy. The decidingauthority must weigh and evaluate the discrepancy and ascertainwhether the discrepancy does go to the root of the matter and shakethe basic version of the witness. If it does not, such discrepanciescannot be given too much importance. Vide the decision in BarwadaBoginbhai Hirjibhai v. State of Gujerat<n. Justice Canon was at painsto point out that before arriving at an adverse finding in regard totestimonial trustworthiness the Judge must carefully give his mind tothe contradictions marked and consider whether they are material ornot and the witness should be given an opportunity of explainingthose contradictions that matter – Attorney-General v. Visuvalingama).The Indian Supreme Court emphasized the important considerationthat witnesses should not be disbelieved on account of trivialdiscrepancies and omissions and the Court should look at theentirety and totality of the material placed before it inascertaining whether the contradiction is weighty or is trivial.See the case of State of Uttar Pradesh v. Anthony{3). The evaluation ofevidence is a matter for the deciding authority who is sitting as acourt of first instance. It is quite manifest that the Arbitrator has given
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his mind to the contradiction and discrepancy highlighted by learnedcounsel who appeared for the employer and has arrived at thefinding of fact having had the benefit of the demeanour anddeportment of witness M. Siripala that the discrepancy andcontradiction spotlighted is not of such great import. In thecircumstances, he has arrived at the following finding and stated: “Iaccept the evidence of the above quoted documents that theseworkmen did report for work on the 2nd of March, 1992 and that theywere not offered work as they were not agreeable to the conditionslaid down". It was elicited in evidence that in the letter issued toworker A. Seetha Dulcie, which was produced marked A28, that shewas offered re-employment as a new entrant. In the circumstances,having considered the totality of the evidence before him, theArbitrator holds “with regard to the other condition, namely, that theseworkers should resign from the union, there is no reason for theArbitrator to reject the evidence of the witnesses of the union that theworkers were given the draft of a letter imposing two conditions whichthey were to sign and hand over to the Management before they wereoffered work and only those who had done so were re-employed. Thelaying down of these two pre-conditions for the offer of work can beconsidered to be tantamount to an unfair labour practice. Theworkers mentioned in the reference had refused to do so and had notbeen offered work. On a consideration of all the evidence tenderedand the inquiries made by me, I have no hesitation in holding that thenon-offer of work to the workmen named in the terms of referencewas not justified.” In regard to this finding, it is clear that there hasbeen no misdirection in point of fact or law, there has been no failureto take into account the effect of the totality of the evidence placedbefore the Arbitrator and there is no improper evaluation of evidence.Hence, there is no error of law on the face of the record and certainlythe findings are all lawful and legal.
The employer company, in its statement of its case filed on the30th of January, 1994, has taken up the position that the workers,when they failed to report for work on the 10th of January, 1992 afterreceiving the letter issued by the employer company dated 4thJanuary, 1992 had vacated their posts and employment and, by acommunication dated 6th of February, 1992 the employer company
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had informed the workers, that by failing to report for work asdirected, they had vacated their employment. Document marked asR20 written by Lanka Vinyl Ltd. to the workers, communicates thedetermination of the employer that the workers had vacated theirposts. There is no position set up in that letter that the strike isunlawful, Illegal, unjustified or unreasonable. The workers had a rightconferred on them to launch a legitimate strike. The right to strikehas been recognised by necessary implication in the industriallegislation in Sri Lanka and there are numerous express statutoryprovisions providing for the regulation of strikes. It is, thus, arecognised weapon of the workmen to be resorted to by them forasserting their bargaining power and for promoting their collectivedemands upon an unwilling employer. Vide the judgment of ChiefJustice Basnayake in Stanley Perera v. Yoosoof-Sahw where thelearned Judge reproduces a part of the award of P. O. FernandoArbitrator and Judge in Industrial Dispute between UnitedEngineering Workers' Union and Taos Limited.
It is in evidence that the strike commenced on the 28th ofNovember, 1991 and after cessation of the strike that the workmenreported for work on the 2nd of March, 1992. Though the workmenphysically kept away from work during this period, having regard tothe background events and the circumstances which induced themto keep away from the work place, {Vide judgment in Stanley Pererav. Yoosoot-Sahw – per Industrial Court Judge P. O. Fernando) nomental element to desert their employment could be imputed to theworkmen in the proved attendant circumstances of this case. I referto the principles laid down in the decision in M. M. K. Samson v.Provincial Transport Board, Kandy5' and the decision in W. Nelson G.de Silva v. Sri Lanka State Engineering Corporation™ where all thesignificant decisions on the law relating to vacation of post have beencollated and reviewed by the Court of Appeal. Thus, the plea ofvacation of post set forth in the aforesaid statement of case andwhich was sought to be substantiated before this Court at the hearingof this application is wholly untenable and unsustainable in law.
The Arbitrator has finally arrived at the finding that he had nohesitation in holding that the non-offer of work to the workmen
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mentioned in the three references was not justified. In regard to therelief to which the workmen are entitled, he has held as follows: “Iwould therefore consider it just and equitable that these workmen bere-employed with back wages less statutory deductions, if any, fromJanuary, 1994. The employer company is hereby directed toimplement the terms of this award within one month of its publicationin the Gazette." The award was made and pronounced on the 9thday of January, 1995. The trade union had claimed that the workmenbe reinstated with back wages from the 2nd of March, 1992.However, the trade union was unable to explain the reasons for theinordinate delay in this dispute coming up for arbitration before theArbitrator as late as January, 1994. The award of the Arbitratorhas been published on the 1st of March, 1995. The employercompany has been directed to implement the terms of the awardwithin one month of the 1st of March, 1995, that is, on the 1st of April,1995.
Generally, an order for reinstatement carries with it an order forback wages from the date claimed by a successful applicant.However, both the Arbitrator and this Court of Appeal have adiscretion in the award of back wages and the deciding authoritywould scrupulously look at the conduct of the trade union in questionand its members who are the workers, in exercising its discretion inregard to the award of back wages. Vide the unreported SupremeCourt decision in Somaratne v. Pullamadan Chetty and Sons Ltd.,7>and the decision of the Court of Appeal in M. M. K. Samson v.Provincial Transport Board, Kandy ™ In Samson’s Case, the Court ofAppeal, in the exercise of its discretion, having particular regard tothe conduct of the applicant, refrained from making an order for thepayment of back wages to the applicant-appellant. On the questionof back wages, the Court of Appeal is entitled to inquire whether theorder of the Arbitrator and his award of back wages is irrational orunreasonable applying the rule in Wednesbury’s case. In awardingback wages, the deciding authority, in regard to the quantum of backwages, is required to make a just and equitable order which wouldhave necessarily to reckon with the impact of such an order on thefinancial stability and continued viability of the employer company.The trade union has claimed back wages for its members from the
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2nd of March, 1992, which is the date on which, they alleged, that theworkers had reported for work at the employer company’s factory. Iwould, in this context, refer to the evidence elicited and thesubmissions advanced before this Court in regard to thereasonableness of the conduct of the employer company in eagerlyentertaining representations made on behalf of the workmen by thetrade and the attempts made by the employer companies to raise thewages of the workman within the limitations permitted by financialconstraints that faced the employer companies. The contents ofdocuments A12, A13, A14, A15, A16 and A19 evidence suchwillingness to conciliate, hear representations of workers and grantwhatever reliefs that were claimed which were permissible in thecircumstances on the part of the employer company. On the otherhand, the cessation of work with its consequent loss in productionand financial detriment and the strike was largely due to the hasty,rash and precipitate actions on the part of the trade union in questionits officials and its membership. By document marked as R12, whichis a letter written by the Ceylon Mercantile Industrial and GeneralWorkers Union (CMU) to Messrs. Lanka Vinyl Ltd. dated 13thNovember, 1991, the General Secretary of the CMU has informed themanagement that the Executive Committee of the trade union hasdecided to authorise the members of the branch union in theemployer’s establishment to strike, without further notice, inpursuance of certain issues mentioned, if they do not receive asatisfactory response from the management on or before the 22nd ofNovember, 1991. This is a conditional notice of an intention to strikeand it has its inherent deficiencies, in that it is a conditional notice.Thereafter, the General Secretary of the CMU, on the 27th ofNovember, 1991 addressed a communication to the threemanagement employer companies informing the addressees of theletter that the members of the CMU in the establishments of themanagement have been authorised by the General Council of thetrade union to take strike action from the 28th of November, 1991 inpursuance of certain enumerated demands, vide R14. It is inevidence that this document R14 had been delivered to the employercompanies only at 2 p.m. on 27.11.91. I hold that the notice to strikegiven by R14 is woefully inadequate and both the Commissioner ofLabour and the Assistant Commissioner of Labour, Ja-ela and the
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employer companies were deprived of an opportunity, by the hastydecision and hasty determination to strike, of interceding andmediating in this dispute to effect a settlement and to initiateconciliation procedures. In the circumstances, this decision to strikeon 28.11.91 by a communication which was delivered at 2 p.m. on27.11.91 is a hasty and a precipitate decision smacking of rashnessand indecent hurry for which considerable blameworthiness mustattach to the union, its officials and its members who are the workerswho are involved in these arbitration proceedings. It is a triteproposition that since the commencement and the continuance of astrike has an adverse effect upon production and upon the industryand because it may ultimately lead to a closure of manufacturingestablishments, this weapon of a strike ought to be used as a lastresort when all other avenues for settlement of industrial disputeshave proved to be futile and fruitless. In the circumstances, Courts oflaw by their orders ought to discourage the misuse of strikes and tocontrol and minimise the deleterious and harmful consequences of itsmisuse in respect of industries as far as possible so that the economyof the country would not be adversely affected. I hold that the strikein this case has not been utilised as a last resort and this hasty andill-considered decision to strike has caused cessation of production,considerable financial loss and detriment to the employer and anadverse effect on the economy of the country for which all blamemust be imputed to the trade union in question, which is the C.M.U.The Arbitrator has referred to this aspect and he has stated that thecompany has complained of financial loss, detriment and financialconstraints. He had emphasized that several workmen are involvedand granting of back wages for so long a period would certainlystrain the resources of the company and perhaps even jeopardiseits viability. In these circumstances I hold that it is unreasonable andirrational, particularly having regard to the conduct of the trade unionin question and its member workers and having particular regard tothe conduct of the employer, which is reflected in documents A12,A13, A14, A15, A16 and A19 to award back.wages from January,1994. In the circumstances, I quash the order of the Arbitratorawarding the workmen back wages from January, 1994. I would setaside that order for back wages and instead direct and order that theworkmen be reinstated and be re-employed in the posts that they
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[1997] 2 Sri L.R.
held before the strike,in the service of the employer companies withback wages less statutory deductions, if any, from the 1st of April,1995 till they are actually reinstated in the aforesaid posts in theservice of the employer companies. 1st of April, 1995 is the datespecified by the Arbitrator for the implementation of the terms of theaward, as the award has been published in the Government Gazetteon the 1st of March, 1995. Subject to the aforesaid variation relatingto the award of back wages, I proceed to dismiss the application ofthe petitioners with costs in a sum of Rs. 525 payable by thepetitioners to the 4th respondent. Subject to the variation contained inthe judgment, application is dismissed with costs.
Order varied and Appeal dismissed,subject to the variation.