UPALI NEWSPAPERS LTD v. EKSATHA KAMKARU SAMITHIYA AND OTHERS

029-SLLR-SLLR-1999-V-3-UPALI-NEWSPAPERS-LTD-v.-EKSATHA-KAMKARU-SAMITHIYA-AND-OTHERS.pdf


CA Upali Newspapers Ltd, v. Eksath Kamkaru Samithiya and Others 205
UPALI NEWSPAPERS LTD.
v.EKSATH KAMKARU SAMITHIYA AND OTHERS
COURT OF APPEALJAYASURIYA, J.,
KULATILAKE, J.
C.A. NO. 615/96.
LT2/A/1/89.
DECEMBER 5, 1997.
FEBRUARY 18, 1998.
MAY 5, 1998.
Industrial Disputes Act ~ Sections 31 (B), 31 (B) (2) (b) – Matter pending beforeLabour Tribunal – Jurisdiction of the Minister to refer matter for Arbitration forsettlement – Is the Award valid?
Presidents of Labour Tribunal – Are they Judicial Officers – Constitution, Articles114, 116, 170 – Interpretation – Writ of Certiorari – Labour Tribunal Presidentsappointed as Magistrates.
The workmen made separate applications to the Labour Tribunal for relief unders. 31B Industrial Disputes Act. While the applications were still pending beforethe Labour Tribunal the Minister referred the matter in terms of s. 4 (1) forsettlement by Arbitration. At the inquiry before the Arbitrator the preliminaryobjection taken to the jurisdiction was overruled and an award was made.
Held:
Article 170 of the Constitution read with Article 114 shows that the Presidentof a Labour Tribunal is included in the definition of “Judicial Officer".
Per Kulatilake, J.
“It is interesting to note that the J S C had published in the Gazette No.1,052 dated 30.10.98 a notification in which eighteen Labour TribunalPresidents have been appointed as Magistrates for the limited purpose ofperforming duties relating to the endorsement of their Orders."
The combined effect of the provisions of. Articles 170, 114, 116 is thatthe proposmon that the Minister has unlimited powers under s. 4 (1) which
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would enable him to refer a dispute which is pending before Labour Tribunalto an Arbitrator for settlement, is incorrect. A contrary interpretationwould necessarily infringe and violate the principle of independence ofthe judiciary enshrined in Article 116 of the Constitution which is theparamount law.
3. S. 31 (B) (2) would apply only to an application made to a Labour Tribunalsubsequent to a reference made by the Minister to an Arbitrator or to anIndustrial Court for settlement.
APPLICATION for a Writ of Certiorari.
Cases referred to:
Wimalasena v. Navaratne and two Others – [1978-79] Sri LR. vol. 2 10(Court of Appeal) – distinguished.
Ceylon Tyre Rebuilding Co., Ltd. v. Perera and Others – [1980] 2 SLR 36(Court of Appeal) – Distinguished.
Walker Sons & Co., Ltd. v. F. C. W. Fry – 68 NLR 73.
Liyanage v. The Queen — 68 NLR 265.
Ratnasiri Perera v. Dissanayake, Assistant Commissioner of Co-operativeDevelopment & Others – [1992] 1 Sri LR. 288.
Gamini Marapana, PC with Anil Tittawella and Samantha Vithana for petitioner.
C. Hewamanage for 1st respondent.
2nd, 3rd and 4th respondents absent and unrepresented.
Cur. adv. vult.
March 19, 1999.
KULATILAKE, J.
Pursuant to a reference made by the Minister of Labour in terms ofsection 4 (1) of the Industrial Disputes Act relating to an industrialdispute which had arisen between the petitioner-company and the firstrespondent Trade Union representing workmen J. K. Vipula, I. G. P.Manjula, H. M. Vipula, N. L. P. W. Jayawardena, P. D. Pemananda,W. M. H. D. Bandara and G. P. D. R. Janaka. Arbitrator M. Sridharan,who is the fourth respondent to this application, had come to a finding
CA Upali Newspapers Ltd. v. Eksath Kamkaru Samithiya and Others
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that the termination of the services of workmen by the petitioner-company was unjustifiable and wrongful and accordingly he has madehis award dated 22nd March, 1996.
By this application the petitioner prays for a writ of certiorari toquash the award made by the fourth respondent. The facts in briefare as follows:
Workman J. K. Vipula who was a casual worker during the periodJanuary, 1987 to 15th April, 1988, on a daily rate of payment wasnot offered any work on 16.4.1988 as there was no work to be offeredto him.
Workman I. G. P. Manjula's services were terminated, with effectfrom 16.4.88, after a domestic inquiry into a charge of unauthorisedabsence on the 12th, 14th and 15th of April, 1988.
H. M. Vipula's services were terminated after a domestic inquiryinto charges of taking unauthorised leave and of unsatisfactoryattendance.
K. L. P. W. Jayawardena's services were terminated after adomestic inquiry into a charge of deliberately giving false informationat the time of recruitment in order to obtain unfair advantages.
P. D. Pemananda's and M. H. D. Bandara's services were termi-nated after a domestic inquiry for having intimidated and threateneda staff officer U. K. Chandrasena.
G. P. D. R. Janaka's services were terminated after a domesticinquiry into a charge of improper conduct.
The workmen have made separate applications to the LabourTribunal for relief and redress in terms of section 31B of the IndustrialDisputes Act. While the applications were still pending before theLabour Tribunal (vide paragraph 13 VIIA of the petition and paragraph14 VIIA of the affidavit of the Personnel Manager of the petitioner-company and at page 3 of the award) the Minister on 21.9.89 referred
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the matter in terms of section 4 (1) of the Industrial Disputes Act forsettlement by arbitration. At the inquiry before the arbitrator a pre-liminary objection to the jurisdiction had been taken up but wasoverruled. When this matter came up for argument before us bothparties conceded to the correctness of the above facts and also thefact that the Minister had referred the dispute for arbitration while theinquiry was pending in the Labour Tribunal. We have heard the oralsubmissions made by the learned President's Counsel for the petitionerand the learned counsel for the first respondent. We have also perusedand considered the written submissions tendered as well as the casescited by them in support of their respective cases.
The only point raised and urged by the learned President Counselwho appeared for the petitioner was whether the Minister has thepower to refer an industrial dispute for arbitration for settlement interms of section 4 (1) of the Industrial Disputes Act when there wereapplications filed by the respective workmen still pending in the LabourTribunal. The learned President Counsel urged that this Court shouldconsider whether the ratio decidendi in Wimalasena v. Navaratne andtwo Others {per Ratwatte, J.) reiterated with approval in Ceylon TyreRebuilding Co., Ltd. v. Perera and Others21 should continue to befollowed as these judgments failed to consider that at the time theIndustrial Disputes Act was enacted the Presidents of Labour Tribunalswere neither judicial officers nor were considered to be performingjudicial functions.
In interpreting the status of a President of a Labour Tribunal underthe Constitution of 1948 it was assumed that they were "public officers"and as such were appointed by the Public Service Commission. Thequestion as to whether the Labour Tribunals exercise judicial functionsor administrative functions was considered by a Divisional Bench inWalker Sons & Co., Ltd. v. F. C. W. Fr/3) where Sansoni, CJ.,H. N. G. Fernando, SPJ. and T. S. Fernando, J. (Tambiah, J. andSri Skandarajah, J. dissenting) after cataloging its powers under partIVA and particularly under section 31B of the Industrial Disputes Act,held that a Labour Tribunal exercises judicial powers. Further, theyheld that a Labour Tribunal had no jurisdiction to exercise its judicialpowers unless the Presidents are appointed by the Judicial Service
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Commission. The decision in this case taken in conjunction with thePrivy Council's decision in Liyanage v. The Queert*' which categoricallyheld that there is vested in the judiciary independent power whichunder the Constitution of 1948 cannot be usurped or infringed by theExecutive or the Legislature, induced the Supreme Court to set asidea number of orders made by Labour Tribunals on the ground thatthose orders were made without jurisdiction. The end result was thatthe legislature took remedial steps to rectify this position andthe present position as laid down in the Constitution of theDemocratic Socialist Republic of Sri Lanka is that the appoint-ment, transfer, dismissal and disciplinary control of Presidentsof Labour Tribunals are vested in the Judicial Service Commis-sion in terms of the provisions of Article 115.
The learned President Counsel further submitted that even thoughthe learned President's Counsel who had appeared for the petitionerin Wimalasena v. Navaratne and Others (supra) argued that theExecutive cannot be permitted to interfere in pending proceedings ofa judicial nature, Ratwatte, J. (Atukorale, J. agreeing) interpreted theparticular provisions and expressed the view that the Minister's powersunder section 4 (1) of the Industrial Disputes Act are "very wide" andheld that the Minister had the power to refer the dispute in that casefor settlement by arbitration in spite of the fact that there was an inquirypending in the Labour Tribunal regarding the same dispute. Thisdecision was followed with approval in Ceylon Tyre RebuildingCo., Ltd. v. Perera (supra).
There are two important aspects that the above judgments havefailed to consider.
In 1957 when the present Industrial Disputes Act (including thestatutory provisions as found in section 4 of the Act) was enactedthe draftsman proceeded on the assumption that a President of aLabour Tribunal is a "public officer" performing public functions.
The Constitution of 1948 founded on the doctrine of strict separationof powers (vide Liyanage v. The Queen (supra) at 282) could never
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have anticipated the executive to be given such wide powers so asto interfere with proceedings which are of a judicial nature.
The learned President's Counsel contended that had their Lordshipsin Wimalasena v. Navaratne & Others (supra) and Ceylon TyreRebuilding Co., Ltd. v. Perera (supra) the opportunity to consider theseaspects, they would have desisted in interpreting that particular sectionas giving such wide powers to the Minister so as to violate theprovisions of the Constitution.
The learned counsel for the first respondent referred us to RatnasiriPerera v. Dissanayake, Assistant Commissioner of Co-operativeDevelopment and Others'51 In that decision the main issue forconsideration was whether an arbitrator appointed by the Registrarof Co-operative Societies in terms of the Co-operative Societies Law,No. 5 of 1972 fell into the category of a Court, tribunal or otherinstitution exercising judicial powers under Article 4 (c) of theConstitution. In fact, the learned President Counsel has correctlycontended that, that decision, has no bearing on the point atissue in the instant case.
In terms of Article 170 which is the Interpretation Article in theConstitution, the term "judicial officer" is interpreted so as to includethe President of a Labour Tribunal as well.
The relevant provision reads thus:
"Judicial officer means any person who holds office as – anyJudge of the High Court or any Judge, presiding officer or memberof any other Court of first instance, tribunal or institution createdand established for the administration of justice or for the adju-dication of any labour or other dispute but does not include a personwho performs arbitral functions or a public officer whose principalduty or duties is or are not the performance of functions of a judicialnature."
In terms of Article 114 of the Constitution the President of a LabourTribunal is appointed by the Judicial Service Commission. Thus, the
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status of a Labour Tribunal as it stands today is entirely different fromwhat it was in 1957 when the Industrial Disputes Act was enacted.Interpretation Article 170 read with Article 114 of the Constitution gaveeffect to the exhortations of Their Lordships in Walker Sons & Co.,Ltd. v. F. C. W. Fry (supra) and went one step further by includingthe President of a Labour Tribunal within the definition of "judicialofficer". It is interesting to note that the Judicial Service Commissionhad published in the Gazette of the Democratic Socialist Republic ofSri Lanka No. 1,052 dated 30.10.98 a notification in which eighteenLabour Tribunal Presidents have been appointed as Magistrates forthe limited purpose of performing duties relating to the enforcementof their orders.
Hence, we are of the considered view that the Minister's powersin terms of section 4 of the Industrial Disputes Act has to be reviewedafresh in view of the aforesaid circumstances.
It is enshrined in Article 116 of the Constitution of the DemocraticSocialist Republic of Sri Lanka which, recognises the independenceof the judiciary, certain safeguards, which enable judicial officers toperform their powers and functions without any interference. Article116 (1) reads thus:
"Every judge, presiding officer, public officer or other personentrusted by law with judicial powers or functions or with functionsunder this chapter or with similar functions under any law enactedby Parliament shall exercise and perform such powers and func-tions without being subject to any direction or other interferenceproceeding from any other person except a superior Court, tribunal,institution or other person entitled under law to direct or supervisesuch judge, presiding officer, public officer or such other personin the exercise or performance of such powers or functions."
The combined effect of the provisions of Interpretation Article 170,Articles 114 and 116 is that the decision in Wimalasena v. Navaratneand Others (supra) can no longer be considered as valid authorityfor the proposition that the Minister has unlimited powers under section
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4 (1) of the Industrial Disputes Act which would enable him to refera dispute, which is pending before a Labour Tribunal to an Arbitratorfor settlement. Such an interpretation would necessarily infringe andviolate the principle of independence of the judiciary enshrined inArticle 116 of the Constitution which is paramount law.
If section 4 (1) of the Industrial Disputes Act is construed to meanthat the Minister under this provision has no power to refer a disputewhich is pending before the Labour Tribunal 'for arbitration to anArbitrator, it is necessary for this Court to consider the effect ofsection 31B (2) (b) of the Industrial Disputes Act which reads thus:
"Where it is so satisfied that such matter constitutes or formspart of an industrial dispute referred by the Minister under section4 for settlement by arbitration to an arbitrator or for settlement toan industrial court make order dismissing the application withoutprejudice to the rights of the parties in the Industrial Disputes."
We are of the view that this provision would apply only to anapplication made to a Labour Tribunal subsequent to a reference madeby the Minister to an arbitrator or to an industrial court for settlement.
For the aforesaid reasons we hold that the reference dated 21.9.1989made by the Minister in terms of section 4 (1) of the Industrial DisputesAct is bad in law and as such the award of the Arbitrator dated22.3.1996 is an order made without jurisdiction. In the result, weproceed to quash the award made by N. Sridharan the Arbitrator dated22.3.1996. The application is allowed. We make no order as to costs.
JAYASURIYA, J. – I agree.
Application allowed.