CEYLON TRANSPORT BOARD, Appellant, and SAMASTHA LANKA MOTOR SEVAKA SAMITHIYA, Re

040-NLR-NLR-V-65-CEYLON-TRANSPORT-BOARD-Appellant-and-SAMASTHA-LANKA-MOTOR-SEVAKA-SAMITHIYA-Re.pdf


*■ SRI SKANDA RAJAH, J.—Ceylon Transport Board v. Samastha Lanka 185
Motor Sevaka Samithiya"
1963Present: Sri Skanda Rajah, S.
CEYLON TRANSPORT BOARD, Appellant, and SAMASTHA LANKAMOTOR SEVAKA SAMITHIYA, Respondent
iS. C. 32 of 1961—Labour Tribunal, 3625
Labour Tribunal—Arbitral character of its functions—Validity of appointment ofsuch tribunal by Minister—Ceylon (Constitution) Order in Council, 1946,8. 55—Industrial Disputes Act, No. 43 of 1950 (as amended by Acts 25 of 1956,.62 of 1957 and 4 of 1962), SS.15A, 24, 31 A, 31B, 31C, 31D, 36 (4), 43 (4),46 A—Misdirection.
The provisions of the Industrial Disputes Act vest the Labour Tribunals,with arbitral power only and not with judicial power. Accordingly, a decisionof a Labour Tribunal ordering the re-instatement of a workman and the pay-ment to him of accumulated wages cannot be regarded as invalid merelybecause the Tribunal was not appointed by the Judicial Service Commission,under Article 55 of the Ceylon (Constitution) Order in Council, 1946.
Where a workman who has been dismissed twice by his employer makes aseparate application for re-instatement in respect of each dismissal, a LabourTribunal would be misdirecting itself in law if it takes into consideration the-matter of the second application in arriving at its decision in the first,application.
APPEAL from an order of a Labour Tribunal.
E. Chitty, Q.C., with Desmond Fernando, for Employer-Appellant.
K. Shanmugali'ngam, with Prins Gunasekera and M. T. M. Sivardeen,.for Applicant-Respondent.
Cur. adv. vult.
January 7,1963. Sri Skastda Rajah, J.—
This is an appeal from the decision of the Labour Tribunal orderingthe re-instatement of a workman and the payment to him of accumulatedwages.
1S6 SKt KTTANDA. BAJAH, J-—Omdon Tramport Board v. Sumatiha Lanka
Motor B&vaha Stmiihiga
The workman, D, 8. R&ndaniya, was employed as an omnibus driverunder the Ceylon Transport Board. He was dismissed after inquiry on•chargee of insubordination. Therefore, the respondent-union, of whichJEtandeniya is a member, applied to the Labour Tribunal on his behalf tohave him tc reinstated with all privileges and back wages
Daring the pendency of this application the workman was re-employedby the employer-appellant as a lorry driver. He was later dismissedeven from that employment on 12.7.1961, and another application dated10.10.1961 wasmade to the Labour Tribunal in respect of that dismissal.
in the course of the inquiry into the present application it was admittedby the employers’ representative that the inquiry in respect of thefirst dismissal was not a proper one and that, therefore, “ there wasno valid dismissal 5>.
It wan agreed at the argument in this Court that when the inquiry bythe domestic tribunal was not valid it was open to the Labour Tribunalto hold an inquiry into the facts afresh. That is what happened in•this matter. But, though the matter of the second dismissal was notbefore the Labour Tribunal at this inquiry, it being the subject of anotherapplication, the Labour Tribunal proceeded to take that also into consi-deration and held that the second dismissal too was wrong.
Mr. Chitty argued that:
The Labour Tribunal is a body vested with judicial power. UnderArticle 55 of the Ceylon (Constitution) Order in Council, 1946, such aa body could be validly appointed by the Judicial Service Commissionalone. That has not been done. Therefore, the Labour Tribunal isan unconstitutional body and is not competent to make the orders itpurported to make, and
Even if this contention fails, the Labour Tribunal has misdirecteditself in law in taking into consideration the second dismissal and making•an order in respect of that too at the inquiry into the matter of the first-dismissal, though a separate application is pending regarding that.
It was not contested that appointment of persons vested with judicialpower can be validly made by the Judicial Service Commission alone.Suffice it to mention three cases in which this has been decided :
Senadkira v. The Bribery Commissioner 1.
Don Anthony v. The Bribery Commissioner 3.
Piyadasa v. The Bribery Commissioner 8.
Therefore, it is unnecessary to set down Article 55 of the Ceylon(Constitution) Older in Council, 1946.
It is not disputed that the Labour Tribunal has not been appointedby the Judicial Service Commission.
1 (1361) 83 N. L. R. 313,• (1963) 64 N. L. R. 93.
* (1962) 84 N. L. R, 386, 62 O. L. W. 73.
SRI SKANDA RAJAH, J.—Ceylon Transport Board v. Samastha Lanka 187
Motor Sevaka Samithiya
In order to consider Mr. Chitty’s first submission, it is necessary to■examine the nature and scope of the Industrial Disputes Act, No. 43-of 1950, as amended by Acts 25 of 1956, 62 of 1957, and 4 of 1962.
As was pointed out by Viscount Simonds in the case of Attorney-General of Australia v. Reginam (The Boilermakers Case)1, the title ofthe Act is not without importance. It is intituled : “ An act to provide•for the Prevention, Investigation and Settlement of Industrial Disputes.and for matters connected therewith or incidental thereto ”.
Part IE of the Act deals with the functions of the Commissioner ofLabour and circumstances in which Industrial Disputes will be referred•for “ settlement by conciliation or arbitration ”. In the sections inPart IT phrases such as the following are used : “ with a view to promotinga settlement ”, “ settlement of disputes ”, “ to settle by conciliation ”,‘‘settlement by conciliation ”, “ settlement by arbitration to an arbi-irator …. or to a Labour Tribunal ”.
Part m of the Act deals with (a) Collective Agreements, (b) Settlementby Conciliation, and (c) Settlement by Arbitration.
Section 15a, which comes under Part III (c), runs thus : “ In the■succeeding provisions of this Act the expression * Arbitrator ’ includes■-a Labour Tribunal.”
Part TV of the Act deals with Industrial Court. Section 24 statesthat the Industrial Court shall “ takes such decision or make such award.as may appear to the Court just and equitable ”.
Part IV A deals with Labour Tribunals. This part is reproduced inits entirety:
“ 31a. (1) There shall be established for the purposes of this Actsuch number of Labour Tribunals as the Minister shall determine.Each Labour Tribunal shall consist of one person.
Regulations may be made prescribing the manner in whichapplications under section 31b may be made to a Labour Tribunal.
31b. (1) A workman or a trade union on behalf of a workman whois a member of that union, may make an application in writing to aLabour Tribunal for relief or redress in respect of any of the followingmatters :—
(a.) the termination of his services by his employer ;
{b) the question whether any gratuity or other benefits are due tohim from his employer on termination of his services and theamount of such gratuity and the nature and extent of suchbenefits ;
(c) such other matters relating to the terms of employment, or theconditions of labour, of a workman as may be prescribed.
A Labour Tribunal shall—
{a) where it is satisfied after such inquiries as it may deem necessarythat the matter to which an application under sub-section (l)
1 (1957) 2 A. E.R. 45 at 47.
3.88 SBI SKA200A. RAJAH, J—Oeyion Transport Board v. Samastha Lanka
Motor Sottaka Barntihiya
of this section relates is tinder discussion with the employerof the workman to whom that application relates by a tradeunion of which that workman is a member, make ordersuspending its proceedings upon that application until theconclusion of that discussion, and upon such conclusion shallresume the proceedings upon that application, and, if asettlement is reached in the course of that discussion, shallmake order according to the terms of such settlement, and
(b) where it is so satisfied that such matter constitutes, or formspart of, an industrial dispute referred by the Minister undersection 4 for settlement by arbitration to an arbitrator, orfor settlement to an Industrial Court, make order dismissingthe application without prejudice to the rights of the partiesin the industrial dispute.
Where an application under sub-section (1) relates—
to any matter which, in the opinion of the Tribunal, is similar
to or identical with a matter constituting or included in anindustrial dispute to which the employer to whom thatapplication relates is a party and into which an inquiryunder this Act is held, or
to any matter the facts affecting which are. in the opinion of
the Tribunal, facts affecting any proceedings under anyother law, the Tribunal shall make order suspending itsproceedings upon that application until the conclusion ofthe said inquiry or the said proceedings under any other law,and upon such conclusion the Tribunal shall resume theproceedings upon that application and shall, in making anorder upon that application, have regard to the award ordecision in the said inquiry or the said proceedings underany other Jaw.
Any relief or redress may be granted by a Labour Tribunal toa workman upon an application made under sub-section (1) notwith-standing anything to the contrary in any contract of service betweenhim and his employer.
Where an application under sub-section (1) is entertained by aLabour Tribunal and proceedings thereon are taken and concluded,the workman to whom the application relates shall not be entitled toany other legal remedy in respect of the matter to which that appli-cation relates, and where he has first resorted to any other legalremedy, he shall not thereafter be entitled to the remedy undersub-section (1).
Notwithstanding that any person has ceased to be an employer—
an application claiming relief or redress from such person may
be made under sub-section (1) in respect of any period duringwhich the workman to whom the application relates wasemployed by such person, and proceedings thereon maybe taken by a Labour Tribunal.
SRI SKANDA RAJAH, J.—Ceylon Transport Board v. Samaslha Lanka 189
Motor SevaJca Samiihiya
if any such, application was made while such person was employer,
proceedings thereon may be commenced or continued andconcluded by a Labour Tribunal, and
a Labour Tribunal may on any such application order such
person to pay to that workman any sum as wages in respectof any period during which that workman was employed bysuch, person or as compensation as an alternative to thereinstatement of that workman or as gratuity payable to thatworkman by such person and such order may be enforcedagainst such person in like manner as if he were suchemployer.
31o. (1) Where an application under section 31b is made to aLabour Tribunal, it shall be the duty of the Tribunal to make all suchinquiries into that application and hear all such evidence as the Tribu-nal may consider necessary, and thereafter make such order as mayappear to the Tribunal to be just and equitable.
Subject to such regulations as may be made under section 39
(fj) in respect of procedure, a Labour Tribunal conducting aninquiry may lay down the procedure to be observed by it in the conductof the inquiry.
31d. (1) Save as provided in sub-section (2) an order of a LabourTribunal shall be final and shall not be called in question in any Court.
Where the workman who, or the trade union which, makes anapplication to a Labour Tribunal or the employer to whom that appli-cation relates is dissatisfied with the order of the Tribunal on thatapplication, such workman, trade union or employer may, by writtenpetition in which the other party is mentioned as the respondent,appeal to the Supreme Court from that order on a question of law.
Every petition of appeal to the Supreme Court shall bear un-cancelled stamps to the value of five rupees and shall be filed in theSupreme Court within a period of fourteen days reckoned from thedate of the order from which the appeal is preferred.
In computing the time within which an appeal must be preferredto the Supreme Court the day on which the order appealed from wasmade shall be included, but all Sundays and public holidays shall beexcluded.
The provisions of Chapter XXX of the Criminal Procedure Codeshall apply mutatis mutandis in regard to all matters connected withthe hearing and disposal of an appeal preferred under this section.”
PART VI—General
“ 36 (4) In the conduct of proceedings under this Act, any IndustrialCourt, Tribunal, arbitrator or authorised officer or the Commissionershall not be bound by any of the provisions of the Evidence Ordi-nance.”
190 SRI SKANDA RAJAH, T.<—Oeylcn Transport Board v, Somaeiha Lanka
Motor Sevaha Sam&hiya
” 43 (4) Any person who in any proceedings before an arbitrator,Industrial Court or Labour Tribunal offers any insult or causes any
interrwpiaon to suck arbitrator, Court or Tribunal or any memberthereof, may be tried and punished under sub-section (1) or by sucharbitrator, Court or Tribunal and where such person is tried andpunished by an arbitrator, Industrial Court or a Labour Tribunad,such arbitrator, Court or Labour Tribunal shall exercise the samepowers and perform the same duties as a District Court exercisesand performs in similar circumstances under Section 381 of the CriminalProcedure Code.”
“ 46a. No suit, prosecution or other legal proceeding shall lieagainst any person for anything which is in good faith done or intendedto be done in pursuance of this Act or any regulations made there-under.”
This section affords only a qualified protection to a Labour Tribunal.But, in the case of an officer vested with judicial power the protection isabsolute. His acts are privileged even if his acts are not done bona fide.
It would, therefore, appear that the chief objects of the Act are toestablish an expeditious system for preventing and settling industrialdisputes by conciliation and arbitration.
Section 15a, which has been reproduced above, indicates that theintention of the Legislature in creating a new body called the LabourTribunal was to constitute it an arbitral body and not one vested withjudicial power. It is also clear that the orders and awards made underthis Act have to be “ just and equitable ”, quite unlike the decisions of aCourt.
To borrow the words of Viscount Simonds in the Boilermakers Case(supra) at p. 48, such being the title of the Act and such its chief objects,it cannot be denied that its primary purpose, and in effect, its only purposeis the settlement of industrial disputes by conciliation and arbitration.It is necessary, however, to see what part is to be played by the LabourTribunal established under the Act in a field apparently so remote fromthe proper exercise of the judicial function.
It is apparent that there have been vested in the Labour Tribunalarbitral functions. “ The function of an industrial arbitrator is complete-ly outside the realm of judicial power and is of a different order. Aswas said by Isaacs and Bioh J.J. in Waterside Workers Federation v.Alexander1 ‘…. the essential difference is that the judicial power
is concerned with the ascertainment, declaration and enforcement ofthe rights and liabilities as they exist, or are deemed to exist, at themoment the proceedings are instituted; whereas the function of thearbitral power in relation to industrial disputes is to ascertain and declare,but not to enforce, what in the opinion of the arbitrator ought to be therespective rights and liabilities of the parties in relation to eachother.’ ” : Boilermakers Case (supra) at 49 and SO.
* (1918) 26 O, L. R. 434 ai 463.
SRI SELANDA RAJAH, J.—Geylon Transport Board v. Samastha Lanka 191
Motor Sevaka Samithiya
Said Lord Sankey, L.C., in the case of Shell Company of Australia,Ltd. v. Federal Commissioner of Taxation1: “The authorities are clearto show that there are tribunals with many of the trappings of a Courtwhich, nevertheless, are not Courts in the strict sense of exercising'judicial power … . it may be useful to enumerate some negative
propositions on this subject.
A tribunal is not necessarily a Court in the strict sense becauseit gives a final decision.
Nor because it hears witnesses on oath.
Nor because two or more contending parties appear before itand between whom it has to decide.
Nor because it gives decisions which affect the rights of subjects.
Nor because there is an appeal to a Court.
Nor because it is a body to which a matter is referred by anotherbody.
(See Rex v. Electricity Commissioner a) ”
At page 118 the Lord Chancellor said further :
“ An administrative tribunal may act judicially but still remainan administrative tribunal as distinguished from a Court, strictly socalled. Mere externals do not make a direction to an administrativeofficer by an ad hoc tribunal an exercise by a Court of judicial power.”
It will be seen that enforcement of the decision or award of the LabourTribunal is by recourse to the ordinary Courts and all contempts of itsauthority, except under Section 43 (4), are punishable by the SupremeCourt.
I would point out that Section 43 (4) above is ultra vires, as being anattempt to vest the Labour Tribunal with judicial power. The rest ofthe provisions of the Act regarding the Labour Tribunal are valid becausethey do not vest the Labour Tribunal with judicial power but only witharbitral power. For these reasons, I hold that Mr. Chitty’s first sub*mission is not valid.
There is substance in the second submission made by Mr. Chitty. Iam of opinion that there was a misdirection in law in the Labour Tribunaltaking into consideration the matter of the second dismissal, which wasthe subject of another application, in arriving at its decision in thisapplication.
Therefore, I set aside the order. I further direct that the other appli-cation be dealt with first by another Labour Tribunal and that thisapplication be dealt with thereafter by still another Labour Tribunal.
The respondent will pay Rs. 157 50 as costs of this appeal to theappellant.
Order set aside.
1 47 Law Times Reports 115 and 117.0 39 Times Law Reports 715.