037-NLR-NLR-V-78-THE-ESTATES-AND-AGENCY-COMPANY-LTD.-Petitioner-and-P.-J.-S.-A.-PERERA-and-ot.pdf
The Estates and Agency Company^Ltd. v. Perera
289
1975 Present : Weeraratne, J., Sliarvananda, J., and Ratwatte, J.
THE ESTATES AND AGENCY COMPANY LTD., Petitioner,and P. J. S. A. PERERA and others, Respondents
S. C. 2/73—Applications for Mandates in the nature of writs ofCertiorari and Prohibition under Section 42 of the CourtsOrdinance.
Industrial Disputes Act—Sections 4 (1), 31B (1) (a), 31B (5), 31C (2),31D(1)—Applications under Section 31B(1) (a) dismissed—Noadjudication on the merits—Subsequent reference under Section4 (1)—Applicability of doctrine of estoppel by res judicata.
The 2nd respondent trade union filed application No. L.T. 9/1105in terms of Section 3IB (1) (a) of the Industrial Disputes Act onbehalf of the workman, * M claiming reinstatement and backwages. After the case of the workman was closed and the respondentcompany had led part of its evidence, the 2nd respondent unionwithdrew the application and consequently the application wasdismissed. Thereafter a second application (No. 10/3423) was filedby the 2nd respondent union on behalf of the workman, ‘ M ’ underSection 31B (1) (a) of the said Act making precisely the same claimmade in the earlier application No. 9/1105. On a preliminaryobjection being taken to the hearing of the second application, thesaid application was dismissed on the ground that the principle of“res judicata” applied.
Subsequent to the two aforesaid applications to the LabourTribunal, the Minister acting under Section 4 (1) of the said Actreferred the dispute between the petitioner and the 2nd respondentunion arising from the dismissal of the workman ‘ M ’ to settlementby arbitration. A preliminary objection was then taken to thearbitration proceedings on the ground that the reference was bad!in law inasmuch as there was no industrial dispute in existence atthe time of the reference.
Held: that the reference under Section 4(1) of the IndustrialDisputes Act was valid inasmuch as—
there was no decision or adjudication on the merits and no
finality in the proceedings relating to the two applicationsmade to the Labour Tribunal;
the parties on the reference under Section 4(1) of the said
Act and the parties in proceedings L.T. 9/1105 and L.T. 10/3423are not the same ;
if the Minister is satisfied of the existence of an industrial
dispute, no doctrine of estoppel by res judicata between theparties can prevent the performance by the Minister of hisstatutory duty.
A PPLICATION for Writs of Certiorari and Prohibition.
R.A. Kannangara, with Mark Fernando and Priya Amera-singhe, for the Petitioner.
S.Mahenthiran for the 2nd respondent (the Union).Priyantha Perera, Senior State Counsel, as Amicus Curiae.
Cur. adv. vuWv
1*—A 26064 (3/77)
290 W.EERARATNE, J.—The Estates and Agency Company Ltd. v. iercr i
May 30, 1975. Weeraratne, J.—
This is an application for the issue ol Writs of Certiorari andProhibition quashing the proceedings and order made by thePresident of the Labour Tribunal and directing him to refrainfrom taking any further action upon the reference purported tohave been made by the Honourable Minister of Labour.
It is alleged by the petitioner, The Estates & Agency Co- Ltd.,that the workman A. Masilamani who was employed on Dunsi-nane Estate, Punduloya, failed and neglected to report for workfrom and after 1st June, 1967 and abandoned his employmentand thereby vacated his post.
On the 22nd August, 1967 the 2nd respondent (a trade union)filed an application No. LT 9/1105 in terms of Section 31B (1) (a)of the Industrial Disputes Act on behalf of the workman Masila-mani in the Labour Tribunal, Nuwara Eliya, against the Superin-tendent of the said estate claiming reinstatement of the workmanand back wages for him on the ground of unlawful terminationof Masilamani’s services.
Then according to the petitioner at a stage after the case onbehalf of the workman was closed and the respondent Companyhad led a portion of its evidence the 2nd respondent union, asrecorded by the President in his order dated 10.8.68, by letter-dated 15.7.68 moved to withdraw the application on the adviceof their Counsel Mr. Amirthalingam and consequently theapplication was dismissed.
Thereafter a second application No. 10/3423 was filed by thesaid 2nd respondent Union on behalf of the workman undersection 31B (1) (a) of the Act making precisely the same claimmade in the earlier application No.. 9/1105.
A preliminary objection was then taken by the petitioner tothe hearing of the second application and the President madeorder on 31.3.71 dismissing the said application on the groundthat the principle of res judicata applies.
On the 27th July, 1971 the Minister of Labour acting underSection 4 (1) of the Industrial Disputes Act referred the disputebetween the petitioner and the 2nd respondent Union, arisingfrom the said dismissal of the workman, to settlement by arbi-tration- The Commissioner of Labour thereafter “ in a statementof the matter in dispute ” sets out in his document “ E ” that:
“ The matter in dispute between the aforesaid parties iswhether the dismissal of the watcher Mr. A. Masilamany,who is a member of the said Union, by the management ofthe said Estate is justified and to what relief he is entitled. ”
WEERARATNE, J.—The Estates and Agency Company Ltd. v. Perera 291
A preliminary objection was then taken to the arbitration pro-ceedings on the ground that the said reference was bad in lawand that consequently the 1st respondent, President of the LabourTribunal, had no jurisdiction to entertain the reference.
On the 30th October, 1972 the 1st respondent overruled theobjection of the petitioner. In his reasons he states that theorder in the first case No. 9/1105 makes reference to the Union’sletter “ B ” dated 15.7.68 which refers to the Union “ seekingreference under section 4 (1) ”.
Mr- R. A. Kannangara for the Petitioner argued that thereference of the Minister was bad in law because there was noindustrial dispute in existence touching this matter. He submittedin this connection that the dispute was heard by two Tribunalsand concluded. Counsel submitted that the first order was notsubject to any conditions and was accordingly a final order. Whenthe matter came up the second time there was no appeal fromthe order of the President dismissing the action on the prelimi-nary objection taken. Consequently, it was again a final order-
Mr. Mahenthiran for the 2nd respondent argued that the prin-ciple of ‘ res judicata ’ has no application in this matter. Hefurther submitted that the order of the Minister under Section 4(1) cannot be impeached. The second order, he submitted shouldhave been decided upon merits. It was argued by Counsel thatwhen no evidence was led there could not have been an adjudi-cation. Consequently, there was no just and equitable order.
It would appear from the order made in Case No. 9/1105 thatthe President acting on the material contained in the 2nd respon-dent Union’s letter of 15.7.68 dismissed the application. The saidletter contains reasons as to why the application was sought tobe withdrawn, namely, that the Union was intending to seek areference, under Section 4 (1) of the Act, by the Minister asreferred to by the President when he overruled the preliminaryobjection taken once the proceedings commenced in respect ofthe Minister’s order under Section 4 (1) of the Act. If this beso there could be no finality in regard to the order made in CaseNo. 9/1105 and the principle of r res judicata ’ would not be appli-cable, since it was never intended by the Union that the disputewas at an end.
A statutory tribunal, for instance, a Labour Tribunal is vestedwith judicial authority to hear and determine disputes betweenemployer and worker, and consequently is undoubtedly a judicialtribunal. In order that a decision can be regarded ‘ res judicata ’it must be established that it has been obtained from a judicialtribunal exercising judicial functions. All that the case of the
292WEER.ARATN’E, J.—The Estates and Agency Company Ltd. v. Perera
United English Workers’ Union v. Devanayagam reported in 69N. L. R. page 289, cited by Counsel held was that the Presidentsof Labour Tribunals do not hold judicial office within themeaning of Ceylon Constitution (Order-in-Council) of 1946. Thedecision must be a judicial one as distinguished from a meretermination of proceedings otherwise than by judicial decision.Spencer Bower and Turner in their work on ‘res judicataSecond Edition, page 29 state :
“ There must have been both a judex and judicium whichfor purposes of estoppel means a decision or determinationor adjudication of some question of law or fact, whether suchdecision takes the form of express judicial declaration or isnecessarily involved in the command or prohibition whichconstitutes the judgment. ”
In the case of Komprinz reported in 1887 (12 Appeal Casespage 256), House of Lords, Lord Halsbury (at page 260), LordRromwell (at page 261), Lord Herchell (at page 262) expressthe view that a dismissal by consent can be considered a ‘ resjudicata in the sense that the party relying on it has a poweror opportunity to show by evidence that was available and admis-sible that the consent was the outcome of a deliberate bargain,compromise and release and an intention on both sides to putan end to litigation.
The Industrial Disputes Act is a piece of social legislationwhich requires that a just and equitable order should be made.The workman in this case was undoubtedly still awaiting suchan order and the Union certainly had not decided to abandonhis claim. In these circumstances could it be said that there wasany decision on the merits ? If there was no decision on themerits then the order by the President made in the second caseNo. 10/3423 would indeed be unsustainable.
The fact that the Union decided to file the second applicationwithout pursuing the matter of an order by the Minister underSection 4 (1) set out in the letter dated 15.7.68, is immaterial.There could have been a different view taken in regard to thatcourse when the Union decided to file a second application. Inany event it is unnecessary for us to speculate on that aspect ofthe matter, for what concerns us is whether the first inquiryconcluded the dispute. In my view the dispute was certainlynot concluded and no final order was made. Consequently, theprovisions of Section 31B (5) referred to by Counsel for thepetitioner would not be applicable.
SHAKVANAN DA, J.—The Estates and Agency Company Ltd. m. P rera 293
In this connection reference must be made to Mr. Kannangara’scontention that there was no appeal by the 2nd respondent Unionfrom the order of the President in the second applicationNo. 10/3423. Counsel submitted that accordingly the dispute wasconcluded and the order of dismissal would be a final order inrespect of which the provisions of Section 31A (5) apply. Henceit is submitted that there could not be a fresh reference to arbi-tration and that in the result the Minister would be acting with-out jurisdiction when he made the order for arbitration, in respectof the identical dispute under Section 4 (1) of the said Act.
I have already shown that the circumstances in which theapplication in case No. 9/1105 was made clearly do not disclosean intention on the part of the parties to the dispute to put anend to litigation and that there was no decision on the meritsof the case. Even though an appeal was not taken the factremains that there was no decision or adjudication on the meritsand accordingly no termination of the proceedings. In this viewof the matter the order of the President in case No. 10/3423 isinsupportable.
In these circumstances the order of the Minister underSection 4 (1) of the Industrial Disputes Act must be regarded asvalid since there was no final conclusion of the dispute in caseNo. 9/1105. The inquiry commenced on the said order of theMinister must proceed-
The petition is accordingly dismissed with costs fixed at Rs. 500payable to the 2nd respondent by the Petitioner.
I wish to add that since writing this judgment I have perusedthe separate judgment of my brother Sharvananda, J., who hasconsidered the question that arises in this appeal in a differentlight.. I am in agreement with the reasons given by him on thepoint of law discussed in his judgment which represents a colla-teral argument in support of the conclusion arrived by me.
Sharvananda, J.—
I agree with my brother Weeraratne, J., that since there wasno decision on the merits on the dispute between the workmanMasilamani and the petitioner the plea of res judicata raised bythe petitioner against the Respondent Union in the presentproceedings cannot be sustained.
Counsel for the petitioner submitted that the dispute arisingfrom the alleged termination of the services of the workerMasilamani had been the subject of orders by the LabourTribunal in terms of Sect: on 31 (c) (2) of the Industrial DisputesAct in LT 9/1105 and 10/3423 and that the said orders, having
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294 8HARVANANDA, J.—The Estates and Agency Company Ltd. v. Per era
not been appealed against, were final within the meaning ofSections 31D (1) of the Act and operated as res judicata betweenthe petitioner and the 2nd Respondent Union and accordinglyno “ industrial dispute ” survived between the petitioner and the2nd respondent Union within the meaning of the Act.
Mr. Mahenthiran for the 2nd respondent Union argued thatthe principle of res judicata had no application so as to debarthe Minister from acting under Section 4 (1) of the IndustrialDisputes Act and referring to arbitration an industrial dispute,when he is satisfied of the existence of such a one between thepetitioner and the Union. He submitted that the Labour Tribunalhad not adjudicated on the merits in the aforementioned applica-tions LT 9/1105 and 10/3423 concerning the termination of theservices of the workman Masilamani. He further contended thatthough the orders made therein might be final in terms of Section31 D (1) between the petitioner and the workman Masilamani onwhose behalf the applications were made by the 2nd respondentUnion, they did not estop the Unioh from re-agitating the disputeas a dispute between the petitioner and itself. He stated thatthough the orders of dismissal of the applications made on behalfof the workman might give rise to the statutory bar underSection 31D (1) so as to preclude any further application beingmade by or on behalf of the workman, yet those orders did notoperate as res judicata against the Union in its dispute with theemployer. He referred to paragraph 232 at page 203 of SpencerBower on Res Judicata (2nd ed.) where it is stated that:
“ A party who though identical in name litigates indifferent characters in the two proceedings is, in contempla-tion of law and in the correct sense of the civilian, twoseparate and distinct personae, so that a decision for, oragainst a man who appears in a representative character, isnot conclusive in favour of, or (as the case may be) againstthe same man appearing in subsequent proceedings, as anindividual, or in a different representative character. ”
He distinguished the case of Ceylon Workers’ Congress vs.Subramaniam Pillai 77 N. L. R. 335, relied on by the petitioner,on this basis. In that case, both the original application by theSocialist Workers’ Congress and the subsequent application bythe Ceylon Workers’ Congress were made on behalf of the same11 workers who had been dismissed by the respondent-employer ;so that, when the earlier application was withdrawn and wasdismissed the statutory bar under Section 3 ID (1) operated topreclude any further application being made by or on behalf ofthe same 11 workmen by the 1st union or by any other union on
SHARVANANDA, J.—The Estates and Agency Company Ltd. v. Perera 295
their behalf. This distinction is fatal to petitioner's submission. Inthe instant case, there was no adjudication by the President outhe merits of the application made on behalf of the workmanMasilamani and there was no decision on the issues involvedin the application that was withdrawn. That the decision of theissues raised in that application that was withdrawn would havebeen decisive, had it proceeded to judgment, in respect of certainquestions that arise in the present proceedings between the peti-tioner and the Union, is not relevant since the parties on thereference under Section 4 (1) and the parties in proceedings inLT 9/1105 and 10/3423 are not the same. On the applicationsLT 9/1105 and 10/3423 the Union participated in a representativecapacity. The applications were made in the Labour Tribunal bythe Union on behalf of the workman Masilamani in terms ofsection 31B (1) but in the present arbitration proceedingsinitiated on the Minister’s reference, the Union on its ownstatus as principal is a party. The orders made in LT 9/1105and 10/3423 do not bind the Union as principal and the Union isfree to canvass the matters in dispute in proceedings, in which itis a party, concerned as a principal. The questions might be thesame, or identical but the parties are different (Spencer Bower2nd ed. at page 211) De Zoysa v- Gunasekera, 47 N. L. R. 439.
Counsel for the petitioner argued that on the making of thefinal order in LT 9/1105 and 10/3423 the industrial disputebetween the parties had ceased to exist and hence the Ministerhad no jurisdiction to refer a “ dead ” dispute for arbitrationunder section 4 (1). Section 4 (1) of the Act provides that theMinister may, if he is of the opinion that an industrial disputeis a minor dispute, refer it, by order in writing, for the settlementby arbitration to a labour Tribunal notwithstanding that theparties to such dispute or their representatives do not consentto such reference. Estoppel cannot be raised to hinder theexercise of a statutory discretion conferred on a public authority—Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd.(1961) 2 A. E. R. 46. If the Minister is satisfied of the existenceof an industrial dispute, no doctrine of estoppel by res judicatabetween the pax-lies can prevent the pexXux-maxice by the Ministerof his statutory duty. The relevant part of the statutory definitionof “ industrial dispute ” runs as follows : “ Industrial Dispute **means any dispute or difference between an employer and work-
man or between employer and workmanconnected with
the employment or non-employment orthe termination of
the services or reinstatement in service of any person, and for thepurposes of this definition “ workman ” includes a trade unionconsisting of workmen. In terms of this definition, it is conceiv-able that the dispute between the employer and workman can,at the same time, constitute an industrial dispute between an
296 SHARVANANDA, J.—The Estates and Agency Company Ltd. v. Perera
employer and a trade union. So that, though the workman maybe barred by Section 31D (1) from re-agitating the matter indispute, the, Minister may not be estopped from taking stepsunder Section 4 (1) where he is satisfied that the matter indispute concerning the dismissal of the workman Masilamani isfestering between the employer and the Union of which theworkman Masilamani is a member, especially as there was noadjudication of the dispute on the merits. The Industrial Disputebetween the employer and the trade union continued to be a livedispute despite the withdrawal of the application made on behalfof the workman Masilamani in LT 9/1105 and the orders ofdismissal in LT 9/1105 and LT 10/3423 and despite Masilamani,on his own, being unable to re-agitate the matter.
The arbitration machinery, “ may be seen to represent a socialpolicy to which the Court must give effect in the interests of thepublic generally or some section of the public despite any rulesof evidence as between themselves that the parties may havecreated by their conduct or otherwise ”—per Lord Radcliffe inKog Hoong v. Leon Chen Mines (1964) 1 A. E. It. 300 at 308. It hasto be borne in mind that the Industrial Disputes Act is a piece ofsocial legislation having for its object the prevention,investigation and settlement of the industrial disputes. Promotionof industrial peace cannot be achieved by the application oftechnical doctrines of estoppel by res judicata or otherwise. Suchdoctrines should be confined in their application to their strictlimits and should not be extended to debar the making of just andequitable orders by statutory tribunals in the exercise of theirjust and equitable jurisdiction. The equitable jurisdiction of anindustrial or labour tribunal is least conducive to the indiscrimi-nate application of rules of estoppel. The invocation of thedoctrine in such a forum should have statutory sanction.
In my view, for the reasons set out above the order ofreference made by the Minister is a valid order and its proprietycannot be questioned in these proceedings. The application ofthe petitioner is refused with costs fixed at Rs. 500 payable to the2nd respondent.
Ratwattr, J.—I agree.Application dismissed.