In re Vidyasagara
1980 Present : Basnayake, C.J., H. N. G. Fernando, J., and Sinnetamby, J.In re V. W. VIDYASAGARA
In the matter of a Rule Nisi issued on Vijaya Wickramatunga Vidyasagara,Advocate of the Supreme Court, in terms of Section 40 A (4) of the IndustrialDisputes Act, No. 43 of 1950 as amended by Act No. 62 of 1957
Industrial Disputes Act, No. 43 of 1950, as amended by Act No. 25 of 1956, Act No. 14of 1957, and Act No. 62 of 1957, ss. 4 (2), 40A—Offence of contempt againstan Industrial Court—Duty of Counsel to be respectful to Court.
In proceedings under the Industrial Disputes Act the respondent, who wasretained as Counsel for one of the parties (“ the Union ”), withdrew abruptlyfrom the proceedings after reading out to the Court, on instructions given tohim by his client, the following statement from a document which he handedto the Court :—
“ In the circumstances, the Union, having felt that this Court by its orderhad indicated that an impartial inquiry could not bo bad before it, lias appealedto the Minister to intervene in the matter. The Union is therefore compelledto withdraw from these proceedings and will not consider itself bound byany order made ex-parto which the Union submits would be contrary to theletter and spirit of the Industrial Disputes Act.”
Held, that the respondent was guilty of the offence of contempt of Courtunder section 40A of the Industrial Disputes Act, No. 43 of 1950, as amendedby Act No. 62 of 1957.
Held further, that a rule nisi issued under section 40A (4) need not be signedby the Chief Justice.
BASNAYA3LE, C.J.—In re Vidyasagara
[R.ULE nisi issued in terms of Section 40 A (4) of the Industrial DisputesAct.
Colvin R. de Silva, with H. Wanigatunga, E. R. S. R. Coomaraswamy,M. L. de Silva, K. Shinya and Nimal Senanayalee, for Respondent.
D. St. C. B. Jansze, Q.C., Attorney-General, with V. S. A. PuUenaye-gum, Crown Counsel, as amicus curiae (on notice).
Cur. adv. wilt.
May 20, 1960. Basnayake, C.J.—*
The respondent appeared before this Court on the service of thefollowing Rule :—
“ IJpon reading a complaint communicated in terms of Section40A (3) of the Industrial Disputes Act, No. 43 of 1950, as amendedby the Industrial (Amendment) Act No. 62 of 1957, by Herbert SpencerRoberts Esquire, duly appointed by the Minister of Labour to constitutean Industrial Court to which a dispute between Mr. P. R. Perera,Petrol Dealer of Mirigama, and the Petroleum Service Station Wor-kers’ Union had been referred, it is ordered that Vijaya WickramatungaVidyasagara, Advocate, residing at 139 St. Sebastian Hill, Colombo12, do appear in person before the Supreme Court at Hulftsdorp onthe 1st day of March 1960 at 11 o’clock in the forenoon and showjcause why he should not be punished for the offence of contemptcommitted against or in disrespect of the authority of the said Indus-trial Court in that he, as Advocate representing the Petroleum ServiceStation Workers’ Union, did at a proceeding held on November 28,1959, read out from a document the following statement containedtherein :—
“ In the circumstances, the Union having felt that this Court byits order had indicated that an impartial inquiry could not be hadbefore it, has appealed to the Minister to intervene in the matter.The Union is therefore compelled to withdraw from these proceedingsand will not consider itself bound by any order made ex-parte whichthe Union submits would be contrary to the letter and spirit of theIndustrial Disputes Act.”
and did abruptly withdraw from the said proceeding after handingin the document to the said Court.”
He showed cause by filing an affidavit in which he stated :—
“ 2. I represented the Petroleum Service Stations’ Workers’ Unionas Advocate duly instructed at a proceeding held on 28th November1959 referred to in the Rule issued on me. The circumstances inwhich I came to appear for the said Union are set out hereinafter,
2*—J. N. R 15187—(1/61)'
BASNAYAKE, C-J.—In re. Vidyaaagara
“ 3. By a letter dated 2nd September 1959 a copy of which is annexedhereunto marked Al, the Permanent Secretary to the Ministryof Labour informed the General Secretary of the Petroleum ServiceStations* Workers* Union that the Hon. Minister of Labour hadreferred the industrial dispute between the said Union and one Mr.
P.R. Perera for settlement by an Industrial Court. The statementof the matter in dispute forwarded with the said letter is annexedhereunto , marked A2.
“4. In due course, as required by the Registrar of the IndustrialCourt, the Union submitted its statement dated 22nd September 1959.A copy of the said statement is annexed hereunto marked A/3.
“ 5. Messrs Julius and Creasy filed a statement dated 23rd September1959 for and on behalf of Mr. P. R. Perera, a copy of which statementis annexed hereunto marked A4. Copies of the answers of MessrsJulius & Creasy and the Union dated 14th and 19th October 1959.respectively are annexed hereunto marked A5 and A6.
“ 6. At an inquiry fixed for 30th October 1959 the Union failed toappear as the lawyer who was to have represented the Union hadsuddenly taken ill and the Union had come to know of this fact onlyin the evening of the said day. On the said date, H. S. RobertsEsquire heard the case ex-parte. A copy of the proceeding of the saiddate is annexed hereunto marked Bl.
“ 7. On 2nd November 1959 the Union made an application thatthe Court be pleased to permit the Union to place its case before theCourt. The application was allowed on the Union paying Rs. 105/-as cost of that day and the matter was fixed for hearing on 21stNovember 1959.
“ 8. On 15th November 1959 the Union made an application forreasons given that a date “ three weeks hence ” be fixed for hearing.A copy of the said application and of the Court’s direction thereondated 18th November 1959 are annexed hereunto marked Cl and C2respectively.
“ 9. The Union gave notice to both Messrs Julius & Creasy and Mr.
P.R. Perera, and the General Secretary of the Union duly appeared on21st November 1959 and supported the said application. A copy of theproceedings of 21st November 1959 including the order made byCourt are annexed hereunto marked D1.
“ 10; On 25th November 1959 the Union addressed to the Hon.Minister of Labour a letter of which a copy is hereunto annexed markedD2.
“11. When I was retained to appear on behalf of the Union on 28th' November 1959 a copy of the aforesaid letter D2 was placed beforeme and I was instructed to make to Court the statement which willbe found in the annexed copy of the proceedings of 28th November1959 marked E.
BASNAYA35IE, C.J.—In re Vidyasagara■
“ 12. The passage set out in the Rule served on me is an extract*from the said statement and was intended to inform the Court of thefact of the appeal to the Minister and of the .reason therefor so that theCourt would be in a position to understand the course of actionadopted by the Union.
“ 13. On this occasion I was acting in my capacity as Counsel for theUnion seeking both to represent my client’s interests and to do myduty to Court. I handed the document from which I read to Courtat the request of the Court and having thanked the Court, withdrew.
“14. At no stage did I intend any manner of disrespect towardsthe Court.”
Learned counsel for the respondent argued that the Rule Nisi issuedon him was not a valid Rule in that
(a) it was not signed by the Chief Justice, and
(£>) it did not contain sufficient particulars to indicate that it wasissued in conformity with the provisions of section 40A of theIndustrial Disputes Act, No. 43 of 1950, as amended byIndustrial Disputes Amendment Act, No. 62 of 1957.
We are unable to uphold the contention of respondent’s counsel that-a Rule Nisi issued under section 40A sub-section (4) should be signedby the Chief Justice or should refer to the nature of the communicationmade or contain other particulars than those contained in the Rule that•has been issued in this case.
Counsel also submitted that the Rule failed to specify the acts of therespondent which bring him within the ambit of section 40A. He submittedthat it should have specified whether he published any statement or didany act or interfered with the lawful process of the court or the arbitrator,and that for want of particulars the Rule Nisi was bad. This contentiontoo we are unable to uphold.
Learned counsel further submitted that the act of the respondent wasnot an act committed against or in disrespect of the authority of theIndustrial Court, that he merely communicated to that Court what his-client felt and that it was within the scope of bis duty to communicate•to the Court the instructions given to him by his client.
It will be useful before we express our views on this submission if thefacts are briefly set out.
By virtue of the powers vested in him by section 4 (2) of the IndustrialDisputes Act, No. 43 of 1950, as amended by the. Industrial DisputesAmendment Act, No. 25 of 1956, No. 14 of 1957, and No. 62 of 1957, theMinister of Labour referred to Mr. H. S. Roberts, a member of the panelof the Industrial Court, the dispute between the Petroleum Service Sta-tion Workers’ Union and Mr. P. R. Perera, Dealer, Shell PetroleumService Station at Mirigama. This fact was communicated to the General
BASNAYA'KE, C.J.—In re Vidyaeagara
Secretary of the Petroleum Service Station Workers’ Union by letter of2nd September 1959 by the Permanent Secretary to the Ministry ofLabour. The statement of the matter in dispute attached to that letterreads as follows :
“ THE INDUSTRIAL DISPUTES ACT, NO. 43 OF 1950In the matter of an industrial dispute
The Petroleum Service Station Workers’ UnionNo. 16, Albion Place, Colombo 9,
Mr. P. It. Perera, Dealer, Shell Petroleum Stationat Mirigama, Asgiriya, Gampaha.
Statement of Matter in Dispute
The matter in dispute between the Petroleum Service StationWorkers’ Union and Mr. P. ft. Perera, Dealer, Shell Petroleum Stationat Mirigama, is whether the refusal by the said Mr. P. ft. Perera to-employ the following persons is justified and to what relief each of thosaid persons is entitled :—
J. It. Bastian Perera,
J. A. Piyasena,
J. P. Gunadasa, and■ 4. K. P. Jinadasa.
Dated at Colombo, this 27th day of July, 1959.”
The Petrol Service Station Workers’ Union filed a statement on 22ndSeptember 1959 in which they stated that the matter in dispute arose overthe refusal of Mr. P. It. Perera, Dealer, Shell Petroleum Station at Miri-. gama,.to employ as from 17th June 1959 the persons named above andthat they were workers at the said station for several years and demandedthat Mr. Perera should continue the services of the said workers.
Mr. P. It. Perera became the dealer at the Shell Petrol Service Stationat Mirigama in June 1959. The previous dealer was one Mrs. de Saramwho employed the four persons who are the subject matter of thereference. She gave them due notice of termination of contract. Atno time were they employed by Mr. P. It. Perera, nor were they everoffered employment by him. The services of the four persons referredto were terminated by Mrs. de Saram and it was submitted by theemployer that as he never employed the four persons in question and astheir services were terminated not by him but by Mrs. de Saram no questionof an industrial dispute arises as between him and them. Since the begin-ning of the dispute between the Petroleum Service Station Workers*^Union and Mr. P. It. Perera, the All-Ceylon Oil Company Workers*'
BASNAYAKE, C.J.—In re Vidyasagara
Union instructed its members, who inter alia are amongst the employees-of the Shell Company, to refuse to deliver petrol to Mr. P. It. Perera,and he was unable to carry on his business as a result of this refusal.
On 30th October 1959 the matter came up for investigation and theUnion was absent. Neither the representative of the Petroleum Service■Station Workers’ Union nor the persons mentioned above appearedbefore the Industrial Court. The Judge waited till 10.05 a.m. althoughthe parties were required to attend at 9.15 a.m. and as the Union did not-appear even at that hour he proceeded to investigate the dispute. Afterhaving recorded the fact that the Union had not attended, he said “ Itherefore propose to hear the case ex 'parted
Mr. Kadirgamar, counsel for Mr. Perera, briefly stated the facts andpointed out that Mrs. de Saram it was who had terminated the services-of the persons mentioned after due notice and that Mr. Perera had no•contract with them.
Mr. Perera was then called to give evidence and was examined by Mr.Kadirgamar and the proceedings terminated after his evidence. On15th November 1959 the General Secretary of the Petroleum ServiceStation Workers’ Union filed a motion in which he moved that the Cgurfcbe pleased to postpone the date of hearing of the above dispute on theaground that Mr. Advocate Malcolm Perera who had been retained for theUnion was ill and in hospital and was unfit to conduct the Union’s caseon Saturday the 21st November 1959. The B-egi tra- of the Courtinformed the Petroleum Service Workers* Union that the dispute was'investigated on 30th October 1959 and dire, ted the Union to support"the application for a postponement in Court on 21st November at 9.15-a.m. with notice to the other side and stated that their application wouldbe considered on that date. On that date Mr. Alfred Perera, the Secre-tary of the Petroleum Service Station Workers’ Union, appeared in Court-and stated that Mr. Malcolm Perera was still ill and was unable to be•present in Court and asked for another date. Mr. Kadirgamar opposed•the application and stated that he had no alternative because he was soinstructed by his Proctor to oppose it, unless the boycott was lifted.The Court enquired from the representative why they did not lift theboycott and to that he answered that the Executive Committee had to■take it up with the All-Ceylon Oil Company Workers’ Union. The Courtinformed the representative “X will give you another date, provided youinstruct the All-Ceylon Oil Company Workers’ Union to lift the boycott ”and the representative answered ,r I will tell the Committee Therepresentative also stated that he would put it to the Committee andthat they will have to decide it. Thereupon the Judge made his orderin the course of which he stated “ I am willing to* allow another dateprovided the Union instructs the All-Ceylon Oil Company Workers’Union to lift the boycott immediately. I put the case off for the 28thinstant. If the boycott is lifted before then the case shall proceed toinquiry, if not trial shall stand. Adjourned for 9.15 a.m. on 28.11.59.”
B ASNAYAKE, C.J.—In re Vidyaaagara
On 25th November 1959 the Union addressed a communication to'the Minister of Labour in which they set out the following facts :
“ The Union wishes to place the following facts and submissions beforeyou in regard to the above dispute :
This dispute which concerns the non-employment of four workers-«t the Mirigama Shell Petroleum Station by Mr. P. R. Perera the Dealerof the said Station, was referred to the Industrial Court for adjudica-tion before H. S. Roberts Esquire, and the inquiry was fixed for the30th of October 1959.
Due to causes over which the Union had no control, the Unionwas not represented in Court on the said date and the Court proceeded *to hear the case ex parte and fixed the 10th of November as the datefor the award.
The Union immediately after the said ex parte proceedings, madean application that it be allowed to intervene and furnished the Court,with the reasons for its absence on the date fixed for the inquiry. This-application was allowed by Court on the Union paying Rs. 105 as costs ofthat date, and the 21st of November, 1959, was then fixed as the datefor the inquiry into the dispute.
On the 15th of November 1959 the Union moved that the Court,be pleased to postpone the inquiry on the ground that its representative,Mr. Advocate Malcolm Perera who was to appear for the Union, hadsuddenly entered hospital and was medically advised that he wouldnot be in a fit physical condition to conduct the Union’s case on thesaid date. The Union was directed by a letter sent to it from theIndustrial Court that this application should be supported on thedate fixed for inquiry, and this was accordingly done after notice to allparties.
5. The Court thereupon made an order, a copy of which is annexedhereto. The Union is compelled to protest against this order on thefollowing grounds :—
The condition imposed on the Union in the said order is wrong and
cannot be justified. It is not correct to impose as a conditionprecedent to the grant of a postponement on the ground of theillness of a Union representative, a condition that one of theparties to the dispute should influence a third party in regardto some matter affecting the third party and over which the partyto the dispute had no control.
The Court by means of the said order has sought to compel this
Union to bring its pressure to bear upon and to influence the All-Ceylon Oil Companies’ Workers’ Union who is not a party tothis dispute, on a matter which pertains to the activities of thatUnion.
The said order makes it evident that the Court was not acting
in the spirit and manner in which.an Industrial Court should,for the maintenance and furtherance of industrial peace in thecountry.
B ASNAY AKJ3, C.J.—In re Vidyasagara,
The said order reflects a positive degree of prejudice on the partof the Court against this Union and the All-Ceylon Oil Com-panies’ Workers’ Union who have sympathised with this Unionin the dispute now before Court.
6. For the reasons aforesaid, the Union states that the purposes ofjustice would be defeated if the Court as presently constituted was toinquire into and adjudicate upon the dispute now before it. The Unionfurther is of the view that an impartial inquiry into the matter cannotbe had at the hands of a tribunal which has made an order of thisnature.
Accordingly, the Union states that it will be unable to consideritself bound by any order made by this Court, and requests you as theMinister of Labour to intervene in the interests of justice and industrialpeace, and to take necessary steps to have the Court re-constitutedin order that the dispute may be heard de novo and determined byanother member of the Industrial Court Panel.”
On 28th November 1959 Mr. Kadirgamar appeared for Mr. Pereraand the respondent instructed by Mr. R. Saravanabagvan appeared forthe Union. The proceedings of that day read as follows :
“ Mr. Vidyasagara—reads from document :
The Union states that the condition imposed on it by the orderof this Court dated the 21st November 1959 is a condition which it isunable to fulfil inasmuch as it amounts to a condition that it shouldinfluence another Union in a matter affecting that Union and over whichit has no control.
The said condition, the Union submits, is ultra vires to this Courtand is not a consideration which ought to have been made a conditionprecedent to the grant of a postponement on the ground of the illnessof a Union representative.
‘ In the circumstances, the Union having felt that this Court by itsOrder had indicated that an impartial inquiry could not be had beforeit, has appealed to the Minister to intervene in this matter. TheUnion is therefore compelled to withdraw from these proceedings andwill not consider itself bound by any order made ex-parte, which theUnion submits would be contrary to the letter and spirit of the Indus-trial Disputes Act. I therefore withdraw from this case. (Documenthanded and Mr. Vidyasagara retires.)” .
Thereafter Mr. Kadirgamar made his submissions and apologised to theCourt for the conduct of the Union through its representative, therespondent.
It was argued for learned counsel that the respondent did not commitany of the acts which are deemed to be contempt of court under section40A subsection (1) of the Industrial. Disputes Act as amended by ActNo. 25 of 1956, Act No. 14 of 1957, and Act No. 62 of 1957, and thatcounsel enjoyed a certain latitude to make representations to the Court
BASNAYAKE, C.J.—In re Vidyaaagara
as to why a particular party before it did not desire to proceed with thematter in dispute. He also stated that the respondent was merely achannel of communication of the Union’s views.
Section 40A (1) reads—
Where any person—
without sufficient reason publishes any statement or does any
other act that brings any Arbitrator, Industrial Court orLabour Tribunal or any member of such court into disreputeduring the progress or after the conclusion of any inquiryconducted by such Arbitrator, Court or Tribunal ; or
interferes with the lawful process of such Arbitrator, Court or
Tribunal, such person shall be deemed to commit the offenceof contempt against or in disrespect of the authority of suchArbitrator, Court or Tribunal.
We are unable to agree that counsel is a mere mouthpiece of the personwho retains his services. Counsel has a responsibility which requireshim to conduct himself deferentially and respectfully before the Tribunalbefore which he appears. If the person who retains his services wishesto take a certain course of action which would amount to an offence, itis his clear duty to point that out to his client and advise him thatthat course is a perilous one which he as counsel could have nothing to dowith.
In the instant case the respondent did not do so. On the contrary he• committed the very act penalised by the section and he did so deliberately.The proceedings show that the Union was from the very outset on theground of illness of the counsel they had originally retained delaying theperformance of its duty by the court. The Tribunal was considerate andgave the Union every opportunity of presenting their case. Prolongedillness of counsel does not confer on a party a right to have the proceedingspostponed till he recovers. If a counsel retained by a party is not ableon ground of illness or otherwise to appear on the day fixed for the hearingof a matter, the party should either retain another counsel or be preparedto present his case in person.
It is not necessary to refer to the cases cited by learned counsel as theyare not relevant to-the question that arises for decision. The act of therespondent is clearly an act calculated to bring the Industrial Courtinto disrepute during the progress of its investigation and is punishableas if it were a contempt of Court.
We accordingly make the Rule absolute and impose the punishment•of a fine of Rs. 500 on the respondent. If he does not pay the fine he willundergo six months’ rigorous imprisonment. As the offence is a veryserious one and seeing that the respondent is an Advocate of five years’standing he should have known the gravity of the act which he committedwith deliberation.
H. N. G. Fernando, J.—I agree.
Sinnetamby, J.—I agree.
Rule made absolute.
IN RE V. W. VIDYASAGARA