Brown <b Co., Ltd. v. Roberto.
1946Present: Dias J.BROWN & CO., LTD., Petitioner, and ROBERTS,Respondent.
303—Application for a writ of certiorari against T. W. Roberts.
Writ of Certiorari—Essential Services (Avoidance of Strikes and Lockouts)
Order, 1942, s. 6—Meaning of “ trade dispute ”—Powers of Tribunal
appointed to settle dispute.
K,a workman employed in an essential service, was dismissed by hisemployer, B & Co. Thereupon, the trade union to which K and alarge number of other workmen in B & Co. belonged presented a petitionon their behalf stating that K had been wrongly dismissed and thathe should be reinstated.
Held, that a “ Trade dispute ” had arisen within the meaning ofsection 6 (2) of the Essential Services (Avoidance of Strikes and Look-outs) Order, 1942.
Held, further, that the person appointed as tribunal to settle thedispute had jurisdiction to award damages to K on the ground ofwrongful dismissal.
PPLICATION for a writ of certiorari.
A labourer named Kittu who was employed under Messrs. Brown &Co., Ltd., an engineering firm, engaged in performing “ essential services ”was dismissed from his employment. Complaint was made by a tradeunion on behalf of Kittu and “ a large number ” of other workmenemployed in Messrs. Brown & Co., Ltd., that the dismissal of Kittu waswrongful and that he should be reinstated. The Controller of Labour,acting under section 6 (2) of the Essential Services (Avoidance of Strikesand Lockouts) Order, 1942, referred the dispute to Mr. T. W. Robertsfor settlement. Mr. Roberts decided that Kittu had been dismissedwithout cause and that, without being reinstated, he should be awardeda sum of Rs. 250 as damages for the wrongful dismissal. Messrs. Brown& Co., Ltd., thereupon, made the present application for a writ ofcertiorari to quash the decision of Mr. T. W. Roberts on the ground thatit was made without jurisdiction.
H. V. Perera, K.C. (with him E. F. N. Oratiaen and O. E. Chitty),for the petitioner.—The petitioner moves for a mandate in the natureof a writ of certiorari to quash the decision and award of the tribunalset up under section 6 of the Essential Services (Avoidance of Strikesand Lockouts) Order of 1942 on the ground that it is void and of noeffect as the tribunal had no jurisdiction to make it. In 1939 theImperial Emergency Powers (Defence) Act was passed empowering theGovernor to make Defence Regulations for certain purposes. Actingunder these powers he issued Defence Regulation 43c enabling theestablishment of a tribunal for the settlement of trade disputes inessential services in order to prevent strikes and lockouts in such services.In 1942, the Governor made an Order under Regulation 43o.“ Trade
22—H 16792 (8/68)
Broum db Co.. Ltd. v. Roberta.
Dispute ” is defined in Defence Regulations 43o (4) and in section (1)of the Order of 1942, as follows :—“ a trade dispute means any disputeor difference between employers and workmen or between workmenand workmen, in or in connexion with, or incidental to the performanceof any essential services This definition is not as wide as the definitionof a “ trade dispute ” in the Trade Union Ordinance or the definitionof an “ industrial dispute ” in the Industrial Disputes Ordinance.According to the definition in Defence Regulation 43c, a trade disputecan only arise between two parties of which one party must be a set orclass of workmen at the time the dispute arose. There is no tradedispute in this case because, firstly, only one workman and not a classwas involved and, secondly, at the time the petition was presented Kittuwas not a workman. Further, section 2 (3) of the Order of 1942 allows atrade union to represent workmen, but it does not provide for a tradeunion representing a single workman. The fact that a trade uniontakes up a workman’s dispute does not make it a trade dispute. Insettling a trade dispute the tribunal cannot make any order it pleases.Neither the Defence Regulation nor the Order of 1942 states how atrade dispute may be settled. From section 9 of the Order of 1942 it ispossible to infer how it may be settled. This section does not seem toregard an order for reinstatement or for damages as a method of settlinga trade dispute.
S. Nadesan, for United Engineering Workers’ Union, on notice.—The definition of trade dispute in Defence Regulation 43c is wider in itsterms than the definition in either the Industrial Disputes Ordinance orthe Trade Union Ordinance. In this case there was a dispute betweenBrown & Co. and a group of its employees on a matter arising “ inconnexion with or incidental to the performance of any essential services ”.The dispute here is as to whether an unskilled workman who does semi-skilled work should be paid the wages of a semi-skilled workman and asto whether the dismissal of Kittu was justifiable or not. The trade union,of which a number of workmen of Messrs. Brown & Co. were members,acting under section 2 (2) of the Order of 1942, presented a petitionto the Controller of Labour who referred it to the tribunal for settlement.The tribunal in settling a trade dispute has very wide powers but itcannot make an illegal order. The fact that it makes an offensive orderwill not affect its jurisdiction.
In this case the tribunal settled the dispute by awarding a sum ofRs. 250 to Kittu. If this matter was not a trade dispute thenperhaps the workmen could have struck and the purpose of the DefenceRegulation would have been defeated.
■M. F. S. Pvlle, Acting Solicitor-General (with him If. Deheregoda, C.C.),on notice as amicus curiae.—For a proper understanding of theEssential Services (Avoidance of Strikes and Lockouts) Order, 1942,it is necessary to examine the legislation relating to labourdisputes prior to 1942. In the Industrial Disputes (Conciliation)Ordinance (Cap. 110) machinery was provided for the voluntary settle-ment of industrial disputes ; and strikes were prohibited as long as asettlement was in force. In 1935, the Trade Unions Ordinance was
Brown <fc Co., Ltd. v. Roberts.
passed. It made registration of trade unions obligatory and conferred onthem certain rights, immunities and privileges. Vide sections 20 to 24.Strikes or lockouts in furtherance of trade disputes were not illegal.“ Trade dispute ” is defined in the Ordinance in terms identicalwith the definition in the Trade Disputes Act, 1906. By section 1 (1)of the Emergency Powers (Defence) Act, 1939, provision was madefor making regulations necessary or expedient for, inter alia, the efficientprosecution of the war and for maintaining supplies and services essentialto the life of the community. Defence Regulation 43c (1) which corres-ponds to the English Regulation 58aa provides for the establishmentof a tribunal for the “ settlement ” of trade disputes. No restrictionis placed on how the tribunal is to settle a dispute. The definition of“ trade dispute ” in this Regulation while different to the definitionin the Trade Union Ordinance is wider. The dismissal of Kittu can bedescribed as a thing arising in connexion with the performance ofessential services. The dispute is between Brown & Co. and Kittu orone between the Company and its employees who are members of theTrade Union. A dispute can be taken up by a Trade Union of which theworkmen who have a grievance are members. Vide the judgment ofLord Wright in the case of The National Association of Local GovernmentOfficers v. Bolton Corporation1. A trade dispute may arise between anemployer on one side and a workman on the other—see Conway v. Wade 2and the Interpretation Ordinance (Cap. 2) section 2 (x) read withDefence Miscellaneous Regulation 2 (4).
If the definition of the expression “ trade dispute ” in the Order isconstrued as narrower in meaning than in the Trade Union Ordinanceone of the objects of emergency legislation would be defeated. Ifarising out of Kittu’s dismissal a strike had been called, then, upon thearguments submitted for the petitioner, the remedies provided in theorder against strikes would not be available. At the same time thestrikers would be entitled to the rights and privileges conferred by theTrade Union Ordinance because the “ non-employment ” of Kittuwould come within the definition of “ trade dispute ” in that Ordinance.In other words workmen would be placed in a position completely toparalyse the essential services without there being a remedy.
The “ settlement ” of a trade dispute would include the power toorder a re-instatement. The National Arbitration Tribunal in Englandhas ordered re-instatement where the dispute consisted of demand forreinstatement—Vide Award No. 488. If re-instatement is not prudent,compensation in lieu of reinstatement is justifiable.
H. V. Per era, K.C., in reply.—Where jurisdiction is conferred, thenan oppressive order will not deprive the tribunal of jurisdiction. Buthere the question is whether the tribunal has jurisdiction to make theaward in question. Section 9 of the Order of 1942 indicates the typeof award that maybe made. It does not show that an order for damagesmay be made. The petition submitted by the trade union does notallege that there is a trade dispute between the employer and his workmen.The mere fact that some workmen view with alarm and concern a fellowworkman’s dismissal cannot make it a trade dispute. There is no'(1942) 2. A. E. R. 425.*(1909) A. C. at p. 517.
DIAS J.—Brown <fc Co., Ltd. v. Roberta.
evidence to show that the workmen supported the trade union inpresenting the petition. The mere fact that the workmen could havestruck in this case will not make this dispute a trade dispute.
Cur. adv. mtU.
November 7, 1946. Dias J.—
The petitioners, Messrs. Brown & Company, Limited, are an engineeringfirm engaged in performing “ essential services They had an employeenamed Kittu, a labourer for eighteen years. He was an unskilledworkman who did cooly work. His duties were to clean the machineryin the electric department, sweep the place and do odd jobs. OnNovember 27, 1946, Mr. Grant of the petitioner’s firm found Kittu“ idling ”. Grant, therefore, ordered him to “ copper ” some carbonbrushes. Kittu told Grant that if he was to do semi-skilled work, heshould be given higher pay. This the firm was unwilling to do, and theupshot of the matter was that Kittu was given one day’s notice andsent away.
Some time previous to this incident, there had been correspondencebetween the United Engineering Workers’ Union, to which some employeesof the petitioner’s firm, including Kittu, belonged. On October 26,1945, that is to say more than a month before the trouble about Kittutook place, the Union was in correspondence with the firm regarding thewages of two workmen in the petitioner’s carbon brush department.Obviously, this could not refer to Kittu—see exhibits PI and P2.
When the trouble about Kittu arose in November, Kittu complainedto the Union which telephoned to the Managing Director of the firm.On November 30, 1945, the Union received the letter P3 from theManaging Director stating that the firm had “ made a full enquiry,and were satisfied on the evidence available that Kittu tendered hisresignation which was accepted.” The Union was told that thequestion of Kittu’s re-employment, therefore, did not arise. It is clearthat the Union on behalf of Kittu and other employees in the petitioner’sfirm was endeavouring to persuade the petitioner to re-employ Kittu,whereas the petitioner was unwilling to do so. A dispute had thereforearisen. One obvious solution of the deadlock was for Kittu to file acivil action for wrongful dismissal. The Union, however, took a differentcourse of action. The question is whether that action and the subsequentproceedings were lawful.
On December 27, 1945, the Union presented to the Controller of Labourthe petition XI. It states that “ a large number of the employeesof the respondent company who are engaged in an essential serviceare members of the Union ; that Kittu was unlawfully and wronglydismissed without sufficient cause ; that this action was a ‘ victimisation’of an employee and that the ‘ members of the petitioner’s union viewwith alarm and concern the said action of the respondent ’ ”. It wasstated that a “ trade dispute ” had thereby arisen. The Union demandedthat Kittu should be reinstated and his wages paid for the days he wasunable to work. The Union requested the Controller to refer the disputeto the appointed tribunal.
DIAS J.—JBrouM ds Co., Ltd. v. Roberta.
After some delay, the Controller of Labour, acting under section 6 (2)of ** The Essential Services (Avoidance of Strikes and Lockouts) Order,1942 ”1,—hereafter referred to as “ the Order of 1942 ”—referredthe petition to the “ Tribunal ” appointed under section 5 of theOrder of 1942, to “ settle ” this dispute. The tribunal consisted ofMr. T. W. Roberts, the respondent to this application.
The inquiry before Mr. Roberts commenced on April 30, 1945. TheUnion, the petitioners, and the Controller of Labour were all representedby their respective lawyers. Mr. Rowan, who appeared for the petitioner,took the preliminary objection that the Tribunal had no jurisdictionto hold the inquiry or to grant the relief claimed*.
The objections were (1) that Kittu was at that date no longer anemployee of the firm and, therefore, no trade dispute could arise, (2) thatthe claim for his reinstatement was a matter for the civil Courts, (3) thatthe Tribunal had no jurisdiction to order reinstatement, and (4) thatthere was no “ trade dispute ” between the petitioners on the one handand their workmen on the other. Mr. Roberts brushed aside the lastthree objections and ruled that in order to decide whether the first pointwas sound, certain issues of fact had to be decided, and directed that theinquiry should proceed.
The Tribunal eventually decided (1) that Kittu had been dismissedwithout cause, (2) that he should not be reinstated, (3) that oneday’s notice was inadequate in the case of a servant who had served thepetitioner for eighteen years, and (4) he awarded a sum of Rs. 250 asdamages to Kittu for wrongful dismissal.
Under section 8 (1) of the Order of 1942, the findings of the Tribunalmust be embodied in an award. Section 8 (2) provides that such award,subject to the provisions of section 9 (which have no bearing or relevanceto this case) shall be final and shall not be called in question in anyCourt of law. It is common ground, however, that if this Court findsthat the Tribunal acted without jurisdiction, or in excess of its jurisdic-tion, the award cannot stand.
The petitioner firm now moves for a writ of certiorari to quash thisdecision and award on the ground that it is void and of no effect.
Certiorari is the process by which this Court examines, and, if necessary,corrects, unless expressly withheld by statute, the proceedings of anyinferior Court or statutory authority vested with judicial or quasi-judiciaryfunctions, if the latter has usurped a jurisdiction which it does notpossess. It is conceded by all parties that the Tribunal was actingjudicially or quasi-judicially in holding this inquiry. The only questionthen is whether the Tribunal acted either without jurisdiction or inexcess of its jurisdiction.
Before proceeding to discuss the arguments advanced at the hearing,it would clarify matters if the history of the Order of 1942 is considered.
In the year 1931, the Industrial Disputes (Conciliation) Ordinance(Chap. 110) was enacted. The key-note of that statute was the “ settle-ment ” of industrial disputes by conciliation. No compulsion could
1 Reproduced in “ A reprint of the Orders, Notifications and other SubsidiaryLegislation under the Defence (Miscellaneous) Regulations in force on May 1, 1944 ”pages 64—65.
1* J. N. A (57-12!! (12/46!
DIAS J.—Brown <fc Co., Ltd. v. Roberta.
be brought to bear by law on employers and workmen in trade disputes.It is obvious that the provisions of this enactment would be of little orno value at a time of national emergency, like a state of war or its after-math.
The Trade Union Ordinance (Chap. 116) became law in 1935. It gavelegal recognition to registered Trade Unions. It was realised thatemployers and employed should work in combination to safeguard theirmutual interests. The definition of the expression “ Trade Union ”in section 2 (c) of the Ordinance indicates that the Union was the re-presentative of the parties in trade disputes. Once the Union wasregistered the law accorded to it certain rights and privileges—seesections 20-22, but it was not a legal person 1. The acts of the Unionare the acts of its members. It is not a corporation, but is a body morein the nature of a Club.
At the outbreak of the War in 1939, the Imperial Emergency Powers(Defence) Act2 was passed. It empowered the Governor to makeDefence Regulations inter alia for securing the public safety, the defenceof the Realm, the maintenance of public order, and the efficient prosecu-tion of the war “ and for maintaining supplies and services essentialto the life of the community ”. Acting under these powers the Governorissued Defence Regulation 43c. The principle underlying that DefenceRegulation is “ to prevent work being interrupted by trade disputes inessential services3. ’ ’ This regulation empowered the Governor to establisha tribunal for the “ settlement ” of trade disputes in essential servicesand to make strikes in stick services illegal. Chapter 110 of our Ordinanceswas specially preserved by section 43c, sub-section (3). It will beobserved that section 12 of the Order of 1942 gives effect to this pro-vision. Section 43c, sub-section (5) makes it a criminal offence to con-travene any prohibition or other provision contained in any Ordermade under section 43c (1).
The Order of 1942 is based on section 43c of the Defence Regulations.Its object is to ensure that there should be peace and tranquillity inessential services during a national emergency. Section 3 of this Ordermakes it a criminal offence to commence, continue, or participate in,or do any act in furtherance of any strike or lock-out in connection withany “ trade dispute ” in any essential services. For example, were itnot for the existence of the prohibition in section 3 of the Order of 1942,it would not have been illegal for this Union to have 'called out a strikeof the petitioner’s workmen when the firm refused to reinstate Kittu.It is pointed out by the Solicitor-General and counsel who representsthe Union that if the contention advanced by the petitioner is right,that there was in this case no “ trade dispute ” which was lawfullyreferred to the Tribunal, the Union by calling a strike in an essentialservice could have brought the work in the petitioner’s firm to a standstill.It is pointed out that the law, having deprived the workers of their rightto strike in an essential service, gave them in exchange a Tribunal whose
1 See 32 Hailsham p. 456.
* 2 and 3 Geo. V. Chap. 62.
8 See Defence (Miscellaneous) Regulations Consolidated Reprint, page 47.
DIAS J.—Brown A Go., Ltd. v. Roberts.
duty it was, not to adjudicate according to strict legal rights, but “ tosettle ” trade disputes, so that work in essential services would not beparalysed by strikes and lock-outs.
The Order of 1942 defines a “ trade dispute ” to mean “ any disputeor difference between employers and workmen, or between workmen andworkmen in, or in connexion with, or incidental to, the performance ofany essential services This definition follows that given in DefenceRegulation 43o (4), but departs from the definition of “ trade dispute ”contained in Chapters 110 and 116 which are identical and read asfollows : “ A ‘ trade dispute ’ shall mean any dispute or differencebetween employers and workmen, or between -workmen and workmenconnected with the employment or non-employment or the terms of theemployment, or with the conditions of labour, of any person
The main question for decision here is whether the facts disclose theexistence of a " trade dispute ” as defined by the Order of 1942. Thepetitioner’s contention is that a “ dispute ” may have risen, but thatit was not a “trade dispute ”, and that the reference of such a disputeto the Tribunal was irregular, and that the Tribunal was acting withoutlawful jurisdiction in dealing with the matter. It is pointed out that theuse of the word “ means ” in the definition indicates that it is a hardand fast definition, and that no other meaning can be assigned to theexpression than is put down in the definition 1. This contention issound and cannot be controverted.
It is urged on behalf of the petitioner that a “ trade dispute ” underthe Order of 1942 cannot arise between the employer and a single work-man, and that no such dispute can arise in connexion with the non-employment of a single workman. In other words, the contentionis that the definition indicates by the use of the word “ workmen ”that for a dispute to become a “ trade dispute ” there should be a disputeor a difference between the employer oil the one hand and his workmenon the other. Otherwise, it is contended, there can be no “trade dispute ”within the meaning of the Order of 1942.
It is to be observed that the plural is used in no less than three placesin the definition of the expression “ trade dispute ”, namely “employers ”,
“ workmen ” and “ essential services ”. Unless there is somethingrepugnant in the subject or context, section 2 (x) of the InterpretationOrdinance (Chap. 2) provides that “ words in the singular numbershall include the plural, and vice versa 2.
I am unable to accept the interpretation sought to be placed on thisdefinition by the petitioner. Assume there can be no “ trade dispute ”between an employer and a single workman, it must then also followthat no “ trade dispute ” can ariso between a single employer likeMessrs. Brown & Company and a group of their workmen. I can findnothing repugnant in the subject or context for interpreting the word“ workmen ” to include “ workman ”. It was pointed out that if thepetitioner’s contention is right, no “ trade dispute ” in an essentialservice could arise between a group of workmen and a single employer.
1 Stroud’s Judicial Dictionary p. 1181 and of. Ibrahim v. Edirisinghe (1931)32 N. L. R. at p. 215, liulan/culam v. Omerit (1913) .1 B. N. C. at p. 42, Bliss v. Pcrcra(1912) 1 C. A. C„ p. 82.
* Soe TluunnthcrampiUai v. Govindasamy (1946) 47 N. L. R. at p. 198.
DIAS J.—Brotcn ds Co., Lid. v. Robert*.
There iB nothing to be gained by considering cases decided under theEnglish Law which is different from the local Defence Regulations andthe Order of 1942l. Therefore such observations as “ it would bestrangely out of date to be told, as was argued, that a trade union cannotact on behalf of its members in a trade dispute, or that a differencebetween a trade union acting for its members and their employer cannotbe a trade dispute ” 2, cannot be applied to local conditions except withgreat care and caution, because our law regarding trade unions has notdeveloped as far as it has done in Britain. The English Law on thepoint had its origin in the Trade Disputes Act of 1806 3, whereas ourLaw on this point only began in the year 1931, and is still in an earlystage of its evolution.
I hold that there was evidence before the Controller of Labour on thepetition X 1 on which he could be satisfied in terms of section 6 (2) thata “ trade dispute ” had arisen between the petitioner and Kittu as wellas a group of workmen of the petitioner’s firm who were members of thisUnion, and who were dissatisfied with the manner in which Kittu hadbeen treated. Although the petition X 1 does not specifically statethiB, it is clear that that is what is meant. Under section 2 (2) of theOrder of 1942 “ where any act is authorised or required to be done byany workmen, that act may be done by any such workmen as therepresentative of all the workmen, or by any officer of any registered tradeunion of such workmen ”. It is argued that while the Union may lawfullyrepresent a body of workmen, it cannot espouse the cause of a singleworkman, and that, therefore, the matter was irregularly placed beforethe authorities. I am unable to accept this contention. It is clear fromthe terms of X 1 that the union was acting for a bodyof men and not onbehalf of one man. I cannot accede to the argument that because Kittuhad been dismissed at the date X 1 was submitted, therefore, there wasno dispute between the employer and a workman. I agree with thepetitioner that the reinstatement or “ non-employment ” of a workmanis not referred to in the definition of “ trade dispute ” in the Order of1942, but the definition, if anything, is wider than the correspondingdefinition in Chapters 110 or 116, for it refers to “ disputes or differencesin, or in connexion with, or incidental to the performance of any essentialservices ”. I think this case is caught up in those words. The fact thatKittu personally makes no claim does not appear to affect the questionat all.
It is urged that the Tribunal had no jurisdiction to award damagesWhat the Tribunal was doing was not the adjudication of a claim accordingto strict legal rights. It was “ settling ” a trade dispute in an essentialservice. The word “ settlement ” has not been defined in the Order of1942 or in the Defence Regulations. It clearly means “ the adjustmentof differences ” or the compromising of a trade dispute. As we know,when parties to an action “ tettle ” a case, they do not always proceed
1 See “ The Conditions of Employment and National Arbitration Order, 1940 ”made by the Minister of Labour and National Service under Regulation 68aa of theDefence (General) Regulations, 1939.
* Per Lord Wright in the National Association of Local Government Officers v.Bolton Corporation (1942) 2 A. E. R. at p. 435 (H of L).
8 G Edw. VII. c 41.
PiyarcUana Thero v. Dhammananda Thcro.
according to strict legal rights. Once the Controller has satisfiedhimself under section 6 (2) that a trade dispute in an essential serviceexisted and transmits the dispute to the Tribunal for “ settlement ”,I do not think Mr. T. W. Roberts had any option but to proceed. If heacted illegally in making his award, he is not indemnified. Assuminghe acted unreasonably (e.g., by awarding Kittu a lakh of rupees) or il-legally (e.g., by ordering that one of the parties should be imprisoned),that would not affect his jurisdiction to deal with the matter and to effecta “ settlement ”. Naturally, officers who are appointed to function as atribunal are chosen persons, and it is expected that they will act judiciallyand reasonably. I can see nothing unreasonable in the manner inwhich Mr. Roberts “ settled ” the dispute. Whether the sum ofmoney ordered to be paid to Kittu is called damages, or compensation,or a solatium, it was a “ settlement ”, the effect of which was to avoidthe dislocation of work in an essential service. In the circumstances,it is impossible to say that such order was either illegal, unreasonable,or made without jurisdiction or in excess of jurisdiction.
The petitioner’s application, therefore, fails and must be dismissedwith costs.
I desire to record my indebtedness to the learned acting Solicitor-General, Mr. M. F. S. Pulle, for the assistance he rendered this Court asamicus curiae.
BROWN & CO, LTD.,Petitioner, and ROBERTS, Respondent