EKSATH KAMKARU SAMITHIYAV.
CEYLON PRINTERS LIMITED AND OTHERS
G.P.S. DE SILVA, C.J.
RAMANATHAN, J. ANDANANDACOOMARASWAMY, J.
S.C. APPEAL NO.114/94.
S.C. SPECIAL L.A. NO. 283/93.
C.A. APPLICATION NO. 369/93.
17TH JUNE, AND 15TH JULY, 1996.
Certiorari-Industrial Disputes Act-Reference of dispute for arbitration-dis-pute regarding a clause in a collective agreement, selectively extended tothe employer-sections 4(1) and 10 of the Act-vires of the reference-jurisdic-tion of the Arbitrator.
The Minister, acting under section 4(1) of the Industrial Disputes Act, re-ferred to an Arbitrator a dispute between the Appellant union and the Em-ployers-Respondents. The first matter referred for arbitration was in respectof the payment of a Non-recurring Cost of Living Gratuity, payable in termsof a clause in a collective agreement which clause had been extended bythe Minister to the Employers-Respondents in the purported exercise of hispower under section 10 of the Industrial Disputes Act.
As the selective extension of the clause relating to the Non-recurring cost ofLiving Gratuity is invalid in law, the reference of the dispute is itself bad inlaw. The said reference was an act which amounted to doing indirectly whatthe Minister could not do directly; hence the Arbitrator had no jurisdiction toembark upon the arbitration.
Cases referred to:
1 .A.F. Jones (Exports) Ceylon Ltd., v. Balasubramaniam (1982)2Sri L.R. 793.
Frewin Co., Ltd. v. Atapattu (1993) 2 Sri L.R. 53.
Kodakanpillai v. Mudanayake (1953)54 NLR 433.
Bandaranaike v. Weeraratne and Others (1981)1 Sri L.R. 10, 16.
Perera v. Commissioner of National Housing 11 NLR 361.
Thambimuttu v. Thambipillai 11 NLR 97.
APPEAL from the judgment of the Court of Appeal.
D.W. Abeykoon, P.C. wifh W.D. Deen, Miss. Priyadarshini Premaratne andMs. Nuwanthi Dias for Appellant.
Faisz Musthapha, P.C. with S. Mahenthiran for Petitioners-Respondents.K.C. Kamalasabayson ASG for State.
4th October, 1996.
This is an appeal from the judgment of the Court of Appeal issuinga Writ of Certiorari quashing the order of the Arbitrator the 3rd Re-spondent- Respondent dated 28.04.1993.
The facts relevant to this appeal are briefly as follows
The Appellant is a Trade Union. On 15.08.1983 the Minister of La-bour under section 4(1) of the Industrial Disputes Act referred the disputebetween the Appellant and the Petitioners-Respondents for settlementby arbitration to Mr. H.C. Gunewardene who was appointed as the Ar-bitrator. The Petitioners-Respondents challenged the jurisdiction of theArbitrator*and the reference made by the Minister in an Application forWrits of Certiorari and Prohibition both in the Court of Appeal and theSupreme Court. These Applications were dismissed both by the Courtof Appeal and the Supreme Court which held the references valid.After the application was finally dismissed by the Supreme Court, theArbitrator Mr.H.C. Gunewardene proceeded to record evidence and hearthe matter. The evidence had been concluded and written submissionsalso had been filed. The Arbitrator Mr H.C. Gunewardene died in Sep-tember, 1992. Thereafter the then Minister of Labour Mr. D.B.Wijetungaacting under section 4(1) of the Industrial Disputes Act referred thedispute to Mr. H.P. Abeysekera the new Arbitrator who is a Respondentin this case. When the inquiry commenced before Mr. Abeysekera, thenew Arbitrator the Petitioners-Respondents challenged the jurisdictionof the Arbitrator to proceed with the inquiry and the Minister's referenceto Arbitration. The Arbitrator Mr. Abeysekera ruled that the referencewas in conformity with law and that he had jurisdiction to act on thereference.
The Petitioners-Respondents filed a writ application bearing No.C.A. 369/93 challenging his order on the ground that by the reference,the Minister was trying to do indirectly what lie could not do directly,namely to resuscitate the Non Recurring Cost of Living Gratuity. At thehearing the State also conceded this position and the Court of Appealquashed the reference on this basis. The present appeal is from thatjudgment.
The terms of reference to both Arbitrators were substantially thesame but not the same. Therefore the question of jurisdiction of theArbitrators can be challenged for the second time.
The first matter referred for Arbitration is in respect of the paymentof Non recurring Cost of Living Gratuity to the members of the Union.The payment of such an allowance has been first promulgated in thecollective agreement which was the subject of litigation in the case ofA.F. Jones (Exports) Ceylon Ltd v. Balasubramaiam.™ In the said case,the extension of selected clauses from a collective agreement washeld to be in-valid in Law. In the case of Frewin Co. Ltd v. Atapattif2), itwas held that the order of the reference made by the Minister regardingthe dispute in respect of the payment of the said Non Recurring Cost ofLiving Gratuity was an act which amounted to doing indirectly what theMinister could not do directly. (Vide Kodakan Pillai v. Mudanayake(3))and Bandaranaike v Weeraratne and Others. Samarawickrema, J.delivering a judgment of a bench of three judges of the Supreme Courtobserved as follows:-
"There is a general rule in construction of statutes that what aCourt or person is prohibited from doing directly it may not do indirectlyor in a circuitous manner".
"On a consideration of the matters set out above the referencemade by the Minister cannot be upheld in law". Since the reference isbad in law, the order of the 3rd Respondent-Respondent dated28.04.1993 upholding the said reference is not tenable in law.
As the reference to the Arbitrator was bad in law and void theArbitrator did not have jurisdiction to embark upon the arbitration. Thisis a case of patent lack of jurisdiction – Vide Perera v. Commissionerof National Housing and Thambimuttu v. Tambipillai.w
For these reasons we affirm the judgment of the Court of Appealand dismiss this appeal. No costs.
G.P.S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. -1 agree.
EKSATH KAMKARU SAMITHIYA V. CEYLON PRINTERS LIMITED AND OTHERS