025-SLLR-1984-V1-WINIFREEDA-MILLS-LIMITED-v.-W.-TILLEKERATNE-ARBITRATOR-AND-OTHERS.pdf
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Sri Lanka Law Reports
[1984] 1 SriL.R.
WINIFREEDA MILLS LIMITEDv
W. TtLLEKERATNE, ARBITRATOR AND OTHERS
COURT OF APPEAL.
SENEVIRATNE, J. AND T. D. G. DE ALWIS. J.
C.A. No. 956/82-INDUSTRIAL DISPUTE ARBITRATION No. A/1921.
OCTOBER 27, 1983.
Certiorari – Dispute between group of workmen of a union andemployer – Reference of dispute by Minister to Arbitration – Does earlier dismissalof individual applications of some workmen as they were time-barred estoparbitration ? – Section 31 B<5) of Industrial Disputes Act.
The Minister of Labour referred a dispute between a group of workmen belonging toa union and the petitioner Mills, their employer, for arbitration. The workmen hadmade individual applications to the Labour Tribunal for relief against the petitionerMills but these applications had been dismissed as they were time-barred. Yet thearbitrator made an award overruling the preliminary objection that the reference toarbitration was without jurisdiction by virtue of the provisions of section 31 B (5)which laid down that where an application under sub-section f1) is entertained by aLabour Tribunal and proceedings thereon are taken and concluded, the workman towhom the application relates shall not be entitled to any other legal remedy inrespect of the same matter. The petitioner made an application for a writ ofcertiorari to have the reference and award quashed on the grounds that they weremade without or in excess of jurisdiction.
Held –
As the individual applications of the workmen had been dismissed on the groundthat they were made out of time it cannot be said these applications had been' entertained " by the Labour Tribunal and " proceedings thereon taken andconcluded " Further, the reference to arbitration was made by the Minister in the
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Winifreede Mills Ltd. v. Tillakeratne (Seneviratne, J.)
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exercise of his statutory powers under section 4 (1) of the Industrial Disputes Actand was not the result of an application by the workmen concerned. The doctrine ofestoppel by res judicata cannot prevent the performance by the Minister of hisstatutory duty. Hence the reference and award were within jurisdiction.
Cases referred to
Mendis v. River Valleys Development Board, (1971 j 80 C.L.W. 49.
The Estates and Agency Company Limited v. J. S. A. Perera. (1975) 78 NLR289.
APPLICATION for Writ of Certiorari.
H. L. de Silva. S. A., with D. S. Wijesinghe for petitioner.
Mahanama de Silva for 2nd respondent.
Cur. adv. vult.
March 23. 1984.
SENEVIRATNE, J.
On 29,9.1981 the Minister of Labour referred to arbitration by the1 st respondent a dispute between the petitioner Winifreeda MillsLimited, and a group of workmen of this mill set out in the scheduleto the reference.
At the hearing on 1.2.1982 the attorney-at-law for the petitionerraised a preliminary objection that the 1 st respondent the Arbitratorhad no jurisdiction to determine the dispute and make an award inview of section 31 B (5) of the Industrial Disputes Act. Thissubmission was based on the fact that each of the workmenincluded in the schedule to the Reference had made applications tothe Labour Tribunal under section 31 B (1) on the same mattersin dispute and the applications had been dismissed. Section31 B (5) on which the submission was based is as follows : –
" Where an application under sub-section (1) is entertained bya Labour Tribunal and the proceedings thereon are taken andconcluded, the workman to whom the application relates‘shallnot be entitled to any other legal remedy in respect of the matterto which that application relates, and where he has first resortedto any. other legal remedy, he shall not thereafter be entitled tothe remedy under subsection (1)
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The 2nd respondent union had in reply to this objectionsubmitted that though these workmen made applications to theLabour Tribunal the applications were dismissed as they were madeout of time – after the six month period. The main reason fordismissal being that the applications had been made out of time,the Labour Tribunal had no jurisdiction to "entertain" theapplications. It was submitted that due to these reasons section31 B (5) will not apply in this instance.
The Arbitrator, 1st respondent by his order dated 28.1.1982,upheld the submission made by the union, and held that he had thejurisdiction to proceed to arbitration. The Arbitrator dismissed theobjection following a decision of de Krester, J. in Mendis v. RiverValleys Development Board (1). The present application is to quashthe said order made by the Arbitrator, the 1 st respondent by way ofWrit of Certiorari on the ground that the said order has been madeby the Arbitrator without jurisdiction and/or in excess of hisjurisdiction.
Learned counsel for the petitioner urged that the applicationsmade by the workmen to the Labour Tribunal had been in terms ofsection 31 B (5) ' entertained ' by the Labour Tribunal and" proceedings thereon taken and concluded '. As such theworkmen are not" entitled to any other legal remedy in respect ofthe matter to which that application relates ". In reply the learnedcounsel for the 2nd respondent {union) submitted that theapplications were not ' entertained' by the Labour Tribunal butwere dismissed in limine. On the objection to jurisdictionlearned counsel in addition submitted that the workmen (union) hadnot in this instance sought " any other legal remedy" as thesearbitration proceedings were not the result of an application madeby the workmen (union) but was a reference to arbitration made bythe Minister of Labour exercising his statutory powers undersection 4(1) of the Industrial Disputes Act. I agree with theproposition that as the applications made to the Labour Tribunalwere time barred and as such were dismissed, the applicationscann&t be said to have been ' entertained by the Labour Tribunaland proceedings thereon taken and concluded'. The decision ofthe Supreme Court in the case – The Estates and Agency CompanyLimited v. J. S. A. Perera and others (2) applies to this application. Itwas decided by the Supreme Court in this case –
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Thavarayan v, Balaknshnan
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That the applications before the Labour Tribunal weredismissed or terminated without any adjudication on themerits, and no finality attaches to the proceedings relating tothe applications made to the Labour Tribunal;
If the Minister is satisfied of the existence of an industrialdispute, no doctrine of estoppel by res judicata between theparties can prevent the performance by the Minister of hisstatutory duty. ,
The application is dismissed with costs fixed at Rs. 500.
T. D. <j. DE. ALWIS. J.-l agree.
Application dismissed.