105-NLR-NLR-V-71-A.-I.-JAFFERJEE-and-7-others-Petitioners-and-R.-SUBRAMANIAM-and-others-Respo.pdf
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Jqfferjee v. Subramaniam
1969 Present: Sirimane, J., and Pandita Gunawardene, J.A. I. JAFFERJEE and 7 others, Petitioners, and
R.SUBRAMANIAM and others, Respondents
8. C. 299/68—Application for a Writ of Prohibition
Labour Tribunals—Mode of appointing them—Scope of their jurisdiction—Power ofMinister to select any particular labour tribunal to hear an industrial dispute—Industrial Disputes Act (Cap. 131), ss. 4 (1), 4 (2), 22 (3), 31A (1), 39—Regula-tion 10 (2)—Ceylon (Constitution) Order in Council (Cap. '379), s. 51 (2)—Industrial Disputes (Special Provisions) Act, No. 37 of 1968, es. 2(1), 5 (2)—Courts Ordinance (Cap. 6), s. 52.
Once the Minister establishes a number of labour tribunals in terms of section31 A (1) of the Industrial Disputes Act, every person duly appointed by thePublic Service Commission to be President of a Labour Tribunal has island-wide jurisdiction. The appointment is not made to a particular, designated. post. It is only for administrative convenience that tribunals are numbered.
Under section 2 (1) of the Industrial Disputes (Special Provisions) Act,No. 37 of 1968, every President of a Labour Tribunal appointed by theJudicial Service Commission prior to the relevant date is deemed to havebeen validly appointed by the Public Service Commission.
When the Minister refers an industrial dispute in terms of section 4 (1) ofthe Industrial Disputes Act, he may select any particular labour tribunal tohear the dispute. It is not necessary that the Commissioner of Labour shouldselect the particular tribunal.
SIRIMANE, J.—Jqfferjee v. Subramaniam
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APPLICATION for a Writ of Prohibition against a Labour Tribunal.Walter Jayatoardena, Q.C., with B. L. Jayasuriya, for the petitioners.
N.Satyendra, for the 2nd respondent.
L. de Silva, Grown Counsel, for the 5th respondent.
Cur. adv. vult.
January 27, 1969. Sirimane, J.—
By an order made under section 4 (1) of the Industrial Disputes Act,Chapter 131 (hereinafter referred to as the Act) the Minister of Labour(the 5th respondent) referred an industrial dispute between thepetitioners and the 2nd respondent for arbitration to a Labour Tribunal(the 1st respondent).
In this application the petitioners pray for a mandate in the natureof a Writ of Prohibition, prohibiting the 1st respondent from inquiringinto or making any award in this dispute.
At the hearing of this appeal, learned Counsel for the petitionerssupported the application only on two grounds :
(а)That there was no valid appointment of the 1st respondent as aLabour Tribunal.
(б)That even if thore was, the reference of the dispute by the Ministerto a particular. Labour Tribunal offended against section 51 (2)
of the Ceylon (Constitution) Order in Council, Chapter 379.
. -■ *
Soction 31a (1) of the Act empowers the Minister to establish LabourTribunals in the following terms :—
“ There shall be established for the purposes of this Act such numberof labour tribunals as the Minister shall determine. Each labourtribunal shall consist of one person.”
By regulation 10 (2) made under section 39 of the Act and publishedin Government Gazette No. 11,688 of 2nd March, 1959, the person holdingthis office is designated “ President of the Tribunal ”.
Once the Minister ostablishos the tribunals, the Public ServiceCommission has to make the appointments of the Presidents.
It is contended for the petitioners that the appointment must be madeto a particular post.
We are unable to agree with this contention.
The Minister establishes the office of Labour Tribunal; that is thepublic office contemplated by section 31a (1). There are no designatedposts, and the Minister merely determines the number of such posts.The Public. Service Commission then appoints a person to thatoffice., Each person so appointed has identical powers and islandwideJurisdiction.
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SIRIMANE, J.—Jafferjee v. Subramaniam
For administrative convenience, the tribunals may be numbered.A fair distribution of work, or convenience in dealing with disputes inparticular localities, may bo considerations that are taken into accountwhen tribunals are so numbered.
But the Public Service Commission is not required to make an appoint-ment to a designated post. These appointments are very different fromthose mado by the Judicial Sorvico Commission to District Courts,Courts of Requests and Magistrate’s Courts, established by the Ministerof Justice for different districts undor section 52 of the Courts Ordinance,Chapter 6. Those appointments have to bo made to certain designatedposts.
Learned Crown Counsel statod at the Bar, and the statement wasaccepted that the 1st respondent had been appointed by tho PublicService Commission on 10th April, 1863 in an acting capacity, and hisappointment confirmed on 10th August, 1867. In our view, the appoint-ment of the 1st respondent was valid and effective in law.
. There is another aspect to this question.
In 1965, in the case of Walker Sons & Co. v: Fry1 this Court held(by a. majority) that Presidents of Labour Tribunals performed judicialfunctions, and should, therefore, bo appointed by the Judicial ServiceCommission. Thereafter, the Presidents were appointed by the JudicialService Commission. It is admitted that the 1st respondent was soappointed.
In 1967, the Privy Council (also by a majority) decided that a LabourTribunal did not hold judicial office, and, therefore, need not be appointedby the Judicial Service Commission (The United Engineering Workers'Union t>. Devanayagam 2.)
In order to resolve certain practical difficulties, which had arisen asa result of these and other judicial decisions, Parliament passed the.Industrial Disputes (Special Provisions) Act, No. 37 of 1968. The relevantpart of section 2 (1) roads as follows :—
. “ Every president of a labour tribunal shall be appointed by thePublic Service Commission and . . ' .. every president of a labour
tribunal appointed by the Judicial Service Commission prior to therelevant date shall be deemed to have been, and to be validly appointedby the Public Service Commission.”
The relevant date is 9th March, 1967. So that, even assuming for thepurposes of argument that tho 1st respondent’s appointment was invalid,
this section, in our view, lias the effect of validating the appointment.
o,The first ground on which the writ is sought must, therefore, fail.
In regard to the second ground, it is conceded that the Commissionerof Labour transfors-officers (as he lawfully might) to tribunals which arenumbered for the sake of convenience. The Minister, therefore, in
1 (2965) 68 N. L. R. 73.
• (1967) 69 N. L. B. 289.
SIRIMANE > J.—Jajjerjee v. Subramantam
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referring a dispute to a particular tribunal is not in a position to selectany particular officer to hear a particular dispute.t
We cannot agree with the submission that the Minister is bound torefer the dispute to a Labour Tribunal without reference to a number,and that the Commissioner of Labour should select the particulartribunal.
Section 51 (2) of the Ceylon (Constitution) Order in Council enacts,
“ Each permanent secretary shall, subject to the general directionand' control of his Minister, exercise supervision over the departmentor departments of government in charge of his Minister.”
By referring a labour dispute under section 4 (1) according to the
method adop ed in this case, the Minister, in our view, in no way interferes
with the day to day executive and administrative functions of public
officers.
•
We also agree with the submission made by the learned Crown Counselthat sub-sections (1) and (2) of section 4 of the Act, in fact, empowerthe Minister to refer a dispute to a named person if he so desires. Thesesub-sections read as follows :—.
“ 4 (1) The Minister may, if he is of opinion that an industrial disputeis a minor dispute, refer it, by an order in writing, for settlement byarbitration to an arbitrator appointed by the Minister or to a labourtribunal notwithstanding that the parties to such dispute or theirrepresentatives do not consent to such a reference.”
“ 4 (2) The Minister may by an order in writing refer any industrialdispute to an industrial court for settlement.”
Section 22 (3) of the Act empowers the Minister to select from a paneleither one or three persons to constitute an industrial court.
On this second question, too, the provisions of the validating Act(No. 37 of 1968), if I may use that term for convenience, stand in theway of the petitioners. The Act was passed by a two-third majority inParliament, in accordance with the provisions of section 29 (4) of theCeylon (Constitution) Order in Council. Even assuming, once again,that the reference by the Minister was invalid, section 5 (2) enacts :
“ Subject to the provisions of sub-section 3 every reference of anyindustrial dispute under the principal Act, whether before or on orafter the relevant date to any arbitrator referred to in sub-section(1), or to any labour tribunal shall be deemed to have been and to be avalid reference, and every arbitrator and labour tribunal shall be deemedto have been and to be duly authorized to settle every industrialdispute referred to such arbitrator or labour tribunal under the principalAct.”
The second ground also fails, and the application must be dismissedwith dosts payable’ to the 2nd and the 5th respondents.
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T. S. FERNANDO, J.—Canekeratrie v. Canekeratne
As all the applications numbered 299-305 were taken up together,there will be only one set of costs…
Pandita Gunawardene, J.—I agree.
.Application dismissed.