EKSATH KAMKARU SAMITHIYAv.
UPALI NEWSPAPERS LTD AND OTHERS
SUPREME COURTFERNANDO. J.
WIJETUNGA, J. ANDISMAIL, J.
SC APPEAL NO. 70/99CA WRITAPPL. NO. 615/96LT NO 2/A/1/8912th AND 30™ JUNE 2000
Writ of certiorari – Industrial dispute – Termination oj services -Applicationto a Labour Tribunalfor relief- Section 3 IBID of the Industrial Disputes Act• Reference of the same disputefor settlement by arbitration under section4(1) of the Act – Jurisdiction of the Minister to refer the dispute – Articles 170.114 and 116(1) of the Constitution.
The services of seven employees of Upali Newspapers Ltd., the petitioner-respondent were terminated between 16. 04. 88 and 19. 04. 88. The lslrespondent-appellant, a registered trade union filed applications onbehalf of six workmen who were its members seeking relief in the LabourTribunal Colombo in terms of section 31 B( 1) of the Industrial DisputesAct (the Act). While these applications were pending, the Minister ofLabour acting under section 4(1) of the Act made an order on 21. 09. 89referring the dispute regarding the dismissal of all seven employees forsettlement by arbitration by the 4* respondent who was adso thePresident of the Labour Tribunal before whom the six applications hadbeen filed. When it was brought to the notice of the Tribunal that theidentical dispute had been referred for arbitration, the applicationsbefore the Tribunal were dismissed.
The arbitration procedure commenced on 17. 01. 90 and by his awarddated 23. 03. 96, the arbitrator directed that two of the workmen bere-instated with compensation.
On the application of the petitioner-respondent the Court of Appealquashed the award by certiorari on the ground that it was made withoutjurisdiction.
In view of Article 116(1) of the Constitution, the Minister had nopower to refer the dispute regarding the termination of services for
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compulsory arbitration when applications in respect of the said disputewere pending in the LabourTribunal. Such reference would infringe andviolate the principle of the independence of the judiciary, enshrined inArticle 116 of the Constitution.
APPEAL from the judgement of the Court of Appeal reported in (1993) 3SRI LR 205.
C. Hewamanage for 1st respondent-appellant.
Anil Tiltawela for petitioner-respondent.
Ms. Demuni de Silva. Senior Stale Counsel for 2nd and 3rd respondents-respondents.
Cur. adv. vult.
August 24. 2000.
ISMAIL. J.The services of seven employees of Upali Newspapers Ltd.,the petitioner-respondent, were terminated between the dates
04. 88 and 19. 04. 88. The 1st respondent-appellant, aregistered trade union, filed applications on behalf of sixworkmen who were its members seeking relief in the LabourTribunal. Colombo in terms of section 31B(1) of the IndustrialDisputes Act.
While these applications were pending before the LabourTribunal, the Minister of Labour, acting in terms of the powersvested in him under section 4( 1) of the Industrial Disputes Act.made an order on 21. 9. 89 referring the dispute regardingthe termination of all seven workmen for settlement byarbitration before the 4th respondent-respondent who was alsothe President of the Labour Tribunal before whom the sixapplication were filed.
The applications filed on behalf of three workmen bearingNos. 2/461/88, 2/462/88 and 2/463/88 were dismissed on
SCEksath Kamkaru Samithiya v. UpaU Newspapers Ltd.J 07
and Others (IsmaiL J.)
09. 89. The applications, bearing Nos. 2/464/88 and2/465/88 were dismissed on 02. 0.1. 90. The applicationbearing No. 2/466/88 was also dismissed on 04. 01.90. Fourof these applications were dismissed by the. Tribunal upon itbeing brought, to its notice, by both parties that the identicaldispute had been referred by the Minister for compulsoryarbitration-. Two of the applications were dismissed on thesame ground on the application made by the employer.
The proceedings before the Arbitrator commenced on
01. 90 and by his award made on 23. 03. 96, he directedthat five of the workmen be reinstated with compensationcalculated on the basis of their period of service.
The petitioner-respondent being aggrieved by that awardfiled an application in the Court of Appeal for a writ of certiorarito have it quashed . The Court of Appeal by its judgment dated19. 03. 99 quashed the award of the arbitrator on the groundthat it was made without jurisdiction.
The 1st respondent-appellant was granted special leave toappeal to the Supreme Court on 18. 08. 99 on the questionsof law set out in paragraph 11(a) to (d) of the petition and onthe following two questions;
Has the Court of Appeal erred in the interpretation ofArticle 116(1) of the Constitution?
Does the Minister have power under section 4(1) of theIndustrial Disputes Act to refer a matter to arbitrationnotwithstanding the pendency of a Labour Tribunalapplication?
The only matter urged by counsel on behalf of theemployer at the hearing in the Court of Appeal was that theMinister had no power to refer a dispute for settlement by
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arbitration in terms of section 4(1) of the Industrial DisputesAct while applications in respect of the same dispute werepending in the Labour Tribunal.
The Court of Appeal held as follows:
"The combined effect of the provisions of InterpretationArticle 170, Articles 114 and 116 is that the decision inWimalasena v. Navaratne and others (1978-79) 2 SLR 10.can no longer be considered as valid authority for theproposition that the Minister has unlimited powers undersection 4(1) of the Industrial Disputes Act which wouldenable him to refer a dispute which is pending before aLabour Tribunal to an Arbitrator for settlement. Such aninterpretation would necessarily infringe and violate theprinciple of the independence of the judiciary enshrined inArticle 116 of the Constitution which is paramount law".
I have considered the matters set out in the writtensubmissions tendered by counsel on behalf of the l31respondent-appellant. However. I see no reason to interferewith the finding of the Court of Appeal.
I accordingly hold that the Court of Appeal has not erredin the interpretation of Article 116(1) of the Constitution andthat the Minister had no power to refer the dispute regardingthe termination of services for compulsory arbitration whenapplications in respect of the said dispute were pending in theLabour Tribunal. In the circumstances it will not be necessaryto deal with the other questions of law set out in paragraph 11of the petition which were not raised by the appellant in theCourt of Appeal.
Counsel for the 1st respondent-appellant submitted that,despite its finding, the Court of Appeal has erred in failing torestore the six applications for further hearing by the Labour
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and Others (Ismail J.)
Tribunal as the employer too had consented and moved for anorder of dismissal of the applications in view of the referenceto arbitration. The withdrawal of an application pending beforea Tribunal is essentially a matter for the applicant. Theaquiescence of employer in an order of dismissal being madein these circumstances cannot be a reason for the re-hearingof the said applications that have already been dismissed.
For the reasons set out above the appeal is dismissedwithout costs.
FERNANDO, J.I agree.
WUETUNGA, J.I agree.
EKSATH KAMKARU SAMITHIYA v. UPALI NEWSPAPERS LTD AND OTHERS