KULATUNGA, LABOUR OFFICER, COLOMBO SOUTH
v.DODANGODA AND OTHERS
COURT OF APPEAL.
ABEYWARDENA, J. AND P. R. P. PERERA, J.
C.A. No. 39/84-M.C. COLOMBO No. 25919/4.
SEPTEMBER 2, 1986.
Industrial Dispute-Arbitration-Repudiation of arbitrator's award-Industrial DisputesAct, Chapter 131, as amended, (sec. 40 (11(a). sec. 43(1), sec. 43(4). sec.20(2) (a))- When will the repudiated award cease to have effect?
An award dated 29.10.1981 was made by an arbitrator in terms of sec. 17 of theIndustrial Disputes Act. This award was gazetted on 27.11.1981. The accused-respondents who are the employers repudiated the award by written notice to thecommissioner, which was gazetted on 12.2.1982. On 19.5.1982 plaint was filed inthe Magistrate's Court charging the accused-respondent, with committing an offence,under sec. 40(1)(a) of the Industrial Disputes Act as amended, for non-compliancewith the arbitrator's award. A preliminary objection was raised, on behalf of theaccused-respondents, that the award had lapsed with the repudiation of it by theaccused-respondents and therefore the court had no jurisdiction to order theaccused-respondents to comply with the award. The learned Magistrate upheld theobjection and acquitted the accused-respondents. The complainant appealed againstthe order of the Magistrate acquitting the accused-respondents.
In terms of sec. 20(2)(a), notwithstanding a notice of repudiation, an award made byan arbitrator is binding on the parties to the award for a minimum period of 1 2 months.During the period specified in sec. 20(2) (a), any person who acts in violation of such anaward would be contravening the provisions of section 40(1)(a), of the IndustrialDisputes Act, and would thus be guilty of an offence punishable under sec. 43 (1) readwith section 43 (4) of the Act.
At the time the plaint in this case was filed the accused-respondents were bound by theaward of the arbitrator.
Case referred to:
V. Thirunavakarasu v. K. E. W. F. Siriwardena and Others – S/C Appeal No. 33/80,S.C. Minutes of 12.3. 1981.
APPEAL from an order of acquittal by the Magistrate, Colombo.
P. A. Ratnayake. State Counsel for appellant.
Accused-respondents absent and unrepresented.
Cur. adv. vult.
October 24. 1986.
The accused-respondents in this case were charged in theMagistrate's Court of Colombo, with committing offences under theprovisions of section 40(1)(a), of the Industrial Disputes Act, Chapter131, as amended for non-compliance with an arbitrator's awarddated 29.10.1981, made under the provisions of section 17 of theIndustrial Disputes Act, by failing to deposit a sum of Rs. 23,381.92cts. with the Assistant Commissioner of Labour, Colombo South-anoffence punishable under section 43(1) read with section 43 (4) of thesaid Act.
The learned Magistrate upholding a preliminary objection raised onbehalf of the accused-respondents held that the amount due on theArbitrator's award dated 29.10.1981, cannot be recovered from theaccused-respondents as the award had lapsed, with the repudiation ofthe award by the accused-respondents and in those circumstances,the court had no jurisdiction to order the respondents to comply withthe award, and acquitted the accused-respondents. It is against thisorder, that the complainant-appellant has lodged the present appeal.This appeal against the order acquitting the accused-respondents hasbeen filed by the complainant-appellant, having obtained the sanctionof the Attorney General in terms of section 318 of the Code ofCriminal Procedure Act No. 1 5 of 1979.
The industrial dispute in question has been referred to an arbitratorby the Commissioner of Labour, in terms of section 3(1 )(d) of theIndustrial Disputes Act. The Arbitrator had made his award on29.10.1981, and it was published in the Ceylon Government Gazetteof 27.1 1.1981. The award was to the effect that the employers whoare the accused-respondents in this case, should re-instate theworkers concerned and should also deposit a sum of Rs. 23,381.92cts., with the Assistant Commissioner of Labour, Colombo South-tobe distributed among the workers concerned. Theaccused-respondents had failed to comply with this award, and hadrepudiated it. The repudiation was published in the CeylonGovernment Gazette of 12.2.1982. The present case had been filed.
for non-compliance of that part of the award, which required theaccused-respondents to deposit a sum of Rs. 3,381.92 cts., with theAssistant Commissioner of Labour, Colombo South.
It is important to note that the repudiation notice relating to thisaward had been published on 12.2.1982, and the plaint in thepresent case has been filed in the Magistrate's Court of Colombo, on
Section 20(2) (a) of the Industrial Disputes Act, Chapter 131,provides thus:
"The award to which such notice relates shall cease to have effectupon the expiration of three months immediately succeeding themonth in which the notice (of repudiation) is so received by theCommissioner or upon the expiration of 12 months, from the dateon which the award came into force as provided in section 18(2)whichever is the later."
In terms of this section an award has a guaranteed period ofoperation of twelve months.
It is clear from the facts set out above, that the plaint in the presentcase has been filed in the Magistrate's Court of Colombo, on
at a time, when the award made by the Arbitrator wasstill in force, as it had been filed within one year from the date onwhich the award came into force which was the later date in terms ofsection 20 (2) (a) of the Act.
Section 40(1)(a) of the Industrial Disputes Act provides that-
'Any person who being bound by a collective agreement, or by asettlement under this Act, or by an award of an arbitrator or anIndustrial Court or a Labour Tribunal, does any act or aids, abets, orincites the commission or any act in contravention of, or fails tocomply with any of the terms of conditions of that agreement,settlement or award, shall be guilty of an offence."
Learned State Counsel, who appeared for the appellant in this case,submitted in these circumstances that at the time the plaint was filedin this case, the accused-respondents were bound by the award of theArbitrator, but had failed to comply with the terms and conditions ofthe award and were therefore guilty of an offence punishable undersection 43(1) read with section 43(4) of the Industrial Disputes Act.
State Counsel also urged that even where an award is repudiated ifa party acts in violation of the award during the period specified insection 20(2)(a) of the Act, such party commits an offence undersection 40(1)(a) of the Industrial Disputes Act.
In support of his contention, learned State Counsel invited theattention of this court to certain observations made by Wanasundera,J. in V. Thirunavakarasu v. K. E. W. F. Siriwardena and Others, asfollows:
" in addition to that the award will be binding on the
parties and is made operative in the character of an award for aminimum period of 12 months. This means that there are somespecial sanctions including criminal sanctions to back the award in .its character as an award. During that period, and in respect of thatperiod when the award will subsist all rights and liabilities pertainingto the award in its character as an award can be enforced as anaward."
I am in agreement with the submissions made by State Counsel onthis question, and I hold that during the period specified in section20(2)(a) of the Industrial Disputes Act, any person who acts inviolation of such an award would be contravening the provisions ofsection 40(1)(a) of the Industrial Disputes Act, and would thus beguilty of an offence under this Act, which would be punishable undersection 43(1) read with section 43(4) of the said Act.
I am of the view therefore, that the learned Magistrate was in errorwhen he held that with the repudiation of the award such awardceased to have effect, and that the court had no jurisdiction to orderthe accused-respondents to comply with such award.
We therefore set aside the order of the learned Magistrate and allowthe appeal, and remit this case back to the Magistrate's Court. TheMagistrate is directed to proceed with the trial in this case and makean order in accordance with the law.
ABEYWARDENA, J.-l agree.
KULATUNGA, LABOUR OFFICER, COLOMBO SOUTH v. DODANGODA AND OTHERS