CARSON CUMBERBATCH & CO. LTD., Appellant, and W. D. NANDASENA (President, Labour

007-NLR-NLR-V-77-CARSON-CUMBERBATCH-CO.-LTD.-Appellant-and-W.-D.-NANDASENA-President-Labour.pdf


Carson Cumberbatch db Co. Ltd. v. Nandasena
73
[In the Court of Appeal of Sri Lanka]
Present: Fernando, P., Sirimane, J., Samerawickrame, J.,Siva Supramaniam, J., and Tennekoon, J.CARSON CUMBERBATCH & CO. LTD., Appellant, and W. D.NANDASENA (President, Labour Tribunal) and 2 others,Respondents
Appeal No. 8 of 1973
S. C. 458/71—Application for Writs of Certiorari and Prohibition
Industrial Disputes Act (Cap. 131)—Sections 8, 14, 19, 21D, 31B, 33 (3),33 (4), 48—Termination of a workman’s services—Applicationmade to Labour Tribunal for relief—Wrong decision made by theTribunal in limine as to the identity of the workman’s employer—Availability of Writs of Certiorari and Prohibition at that stage—Meaning of expressions “employer” and “workman”—ACompany acting as the Agents and Secretaries of the workman’semployer—Whether relief can be claimed by the workman againstsuch Agents too as the workman’s employer.
The 3rd respondent, a “ public ” limited liability company(Farms and Retail Markets Ltd.) appointed the appelant-company (Carson Cumberbatch & Co. Ltd.) as its Managers andSecretaries. The 2nd respondent held the post of manager of a farmbelonging to the 3rd respondent. He was appointed to that postby a letter sent by the 3rd respondent and the appellant-companyjointly, but the appellant was manifestly acting “ for and on behalfof ” the 3rd respondent. When his services were terminated 2} yearslater, he made application under section 31B of the IndustrialDisputes Act claiming relief not only from the 3rd respondent,which was admittedly his employer, but also from the appellant-company. He alleged that both companies were his employers. Theappellant-company filed answer stating that it was not the employerof the 2nd respondent and that it had, to the knowledge of the 2ndrespondent, acted merely as “ Managers and Secretaries ” of the3rd respondent-company. After a preliminary inquiry, the LabourTribunal made order that the inquiry should proceed against bothcompanies. The appellant thereupon applied to the Supreme Courtfor Writs of Certiorari and Prohibition to quash the order of theLabour Tribunal and to restrain the Tribunal from laking anyfurther proceedings against the appellant. The present appeal wasfrom the judgment of the Supreme Court which held—
that Writs of Certiorari and Prohibition were not available to
the appellant as the question whether the appellant (as wellas the 3rd respondent) was the employer of the 2ndrespondent was a mixed question of fact and law and that,therefore, the error, if error there was, was one committedwithin jurisdiction.
that the appellant and the 3rd respondent were the employers
of the 2nd respondent; in coming to this conclusion theSupreme Court took the v:ew that the appellant’s acts onbehalf of the 3rd respondent constituted “ the act of appoint-ment itself ” and that although these acts were performed onbehalf of the 3rd respondent, the definition of the termemployer in the Industrial Disputes Act rendered theprincipal (the 3rd respondent) and its agent (the appellant)both employers of the appellant.
lxxvii—4
A 06803 (5/74)
1*—
74
TENXEKOON, J.—Carson Cumberbatch & Co. Ltd. v. Nandasena
Held, by the majority of the Court (Sirimane, J., dissenting), thatthe appellant was entitled to be granted Writs of Certioraii for thefollowing reasons : —
A Labour Tribunal cannot, by making a wrong decision asto the identity of the employer, whether by reason o£ a mistake offact or by reason of a mistake of law, give itself power or jurisdic-tion to make orders against a person who is not the particularworkman’s “ employer ” within the meaning of the IndustrialDisputes Act. A statutory tribunal may step outside its jurisdictionin the course of its inquiry as well as at the outset, and thistransgression may result from a mistake of law in the interpretationof the statute by which its jurisdiction is conferred or from anerroneous finding on a jurisdictional fact. In such a case, Certiorarilies even at the outset, immediately after jurisdiction is wronglyassumed by a Labour Tribunal.
The appellant was not an employer of the 2nd respondentwithin the meaning of the definition of the term “ employer ” insection 48 -of the Industrial Disputes Act. The person referred toas a person employing a workman in each of the three limbs ofthe definition is intended to refer to a person who is under con-tractual obligation to the workman. In the present case 1he appellantcompany at all times declared that it was acting only as an agent“ for and on behalf o'f ” the 3rd respondent company. The contractof service into which the 2nd respondent entered was a contractwith the 3rd respondent only.
A PPEAL from a judgment of the Supreme Court.
H. L. de Silva, with Mark Fernando, for the appellant.
N. Satyendra, with P. Sundaralingam, for the 2nd respondent.
1st and 3rd respondents absent and unrepresented.
Cur. adv. vult.
December 31, 1973. Tennekoon, J.—
The main question that falls to be decided in this appeal iswhether the appellant, Carson Cumberbatch and CompanyLimited was, together with the 3rd respondent Farms andRetail Markets Limited, an “ Employer ” of the 2nd respondent
S. C. Canagasingham within the meaning of the expression“ Employer ” as used in the Industrial Disputes Act.
Farms and Retail Markets Limited (Farms) was incorporatedas a “ public ” limited liability company on the 11th of April,1966. The Board of Directors of a company known as CarsonCumberbatch & Co. Ltd. (Carsons), with considerable supportfrom other mercantile institutions and persons took greatinterest in floating this new company (Farms). Shortly afterFarms was incorporated its Board of Directors appointed Carsonsas Managers and Secretaries of Farms; the new company’sactivities consisted mainly of large-scale production of vegetablesand subsidiary foodstuffs on its two farms—Terra Nova Farmat Mahiyangana and Park Farm at Kandapola—-and the retailingof the produce at outlets in the bigger cities. The Terra Nova
TENISTEKOON, J.—Carson Cumberbatch <fe Co. Ltd. v. Nandasena
75
Farm was managed by a person holding the post of “ FarmManager The prospectus issued by Farms on 5th August 1966shows that this post was then held by one Mr. F. A. de Silva. Inthe latter part of 1966 the post of Assistant Manager of TerraNova Farm was advertised and the 2nd Respondent on hisapplication was selected for appointment; he took up duties onthe farm on or about 6th May 1967. The contract of service iscontained in a document (1R3) which (omitting details ofparticulars of salary, Provident Fund, hours of work, leaveprivileges, conditions of termination of appointment, MedicalExamination) reads as follows :
Duplicate
FARMS AND RETAIL. MARKETS LIMITED(Telegrams :“ Farmfoods ” Colombo, Braybrooke .
Stores, Braybrooke Street, Colombo 2)
1st June, 1967.
S. C. Canagasingham, Esqr.,
C/o. The Manager,
Terra Nova,
Weragantota.
Dear Sir,
Post of Assistant Manager
We are pleased to offer you the above post on thefollowing terms and conditions : —
Date of Appointment: —
We shall take the 6th May as the effective date ofyour appointment.
Salary :.
Provident Fund :.
Hours of work :.
Leave :.
Termination of employment :.
Medical examination :.
General:.
If the foregoing terms are acceptable to you, willyou please sign and return the duplicate copy of thisletter together with the attached welfare card dulycompleted.
Yours faithfully,
For and on behalf ofFarms & Retail Markets Ltd.,Carson Cumberbatch & Co. Ltd.,Sgd. : Director,
Managers and Secretaries.
76TENHEKOON, J.—Carson Cumberbatch & Co. Ltd. v. Nandasena
I acknowledge receipt of the original of the aboveletter, the terms of which I have read and I herebyaccept all the terms of my appointment as set out inthis letter, this duplicate of which I now wish toreturn.
Sgd. L. S. C. Canagasingham.
The Manager of the Terra Nova Farm, Mr. F. A. de Silva,resigned his office with effect from 12th November 1967, where-upon Carsons addressed the following letter (1R14) to the 2ndrespondent : —
“ 1R14 ”,
25th November, 1967.
Ref. F/ll,
L. S. C. Canagasingham, Esqr.,
Terra Nova Farm,
Mahiyangana.
Dear Sir,
Post of Manager—Terra Nova Farm
We are pleased to advise that the Board haveapproved your appointment as Manager of Terra Novaat a consolidated salary of Rs. 2,000 per mensem witheffect from 1st December, 1967.
The other terms of your appointment subject to yourhaving to contribute 10% of your consolidated salaryand the Company contributing an equal amount,which is to be retained in the books of the Companyuntil such time as we make suitable arrangements foryou to join the E. P. F.. are as set out in our letter of1st June, 1967.
Please acknowledge receipt of this letter.
Y-ours faithfully,
For and on behalf ofFarms & Retail Markets Ltd.,Carson Cumberbatch & Co. Ltd.,Sgd : Director,
Managers & Secretaries.
c.c. J. M. E. Waring, Esqr.
This letter was in consequence of a decision of theBoard of Directors of Farms taken at a meeting of theBoard held on the 23rd November, 1967.
TENNEKOON, J.—Carson Cumberbatch dk Co. Ltd. v. Nandaetna
77
Mr. Canagasingham thereafter served as Manager of TerraNova Farm until his services were terminated with effect from30th June 1970. Two letters that were addressed to him in thatconnection read as follows : —
“ A 9 ”
CARSON CUMBERBATCH & CO. LTD.LEECHMAN &. CO. LTD.
(Subsidiary Company)
P.O. Box No. 24,Colombo,
24th March, 1970.(Registered Post)
Ref. F/ll.
S. C. Canagasingham, Esqr.,
Terra Nova Farm,
Mahiyangana.
Dear Sir,
Terra Nova Farm—Mahiyangana
We hereby give you one month’s notice with effectfrom the 1st of April, 1970, under Section 31F (a) ofthe Industrial Disputes Act of our intention toterminate your services on the grounds of redundancy.
A further notice whereby your services will beterminated on 30th June, 1970, is annexed.
Yours faithfully,for and on behalf ofFarms and Retail Markets Ltd.Carson Cumberbatch & Co. Ltd.
Sgd. Director, Managers and Secretaries.
REPLY SMY:
Copy to—
The Commissioner of Labour,
Baladaksha Mawatha,
Colombo 3.
A 00803 (6/74)1**—
78
TENNEK.OON, J.—Carson Cumberbatch & Co. Ltd. v. Nandasena
“A 8 ”
CARSON CUMBERBATCH & CO. LTD.
LEECHMAN & CO. LTD.
(Subsidiary Company)
P. O. Box No. 24.
Colombo,
24th March, 1970.
(Registered Post)
Ref. F/ll.
S. C. Canagasingham, Esqr.,
Terra Nova Farm,
Mahiyangana.
Dear Sir,
Terra Nova Farm—MahiyanganaWe refer to your letter of appointment dated 25thNovember, 1967, and the notice under Section 31F (a)of the Industrial Disputes Act of today’s date.
Accordingly we hereby give you three months’notice commencing from 1st April, 1970, of thetermination of your services on 30th June, 1970.
Yours faithfully,for and on behalf ofFarms and Retail Markets Ltd.
Carson Cumberbatch & Co. Ltd.
Sgd. Director, Managers and Secretaries.REPLY SMY :
Copy to—
The Commissioner of Labour,
Baladaksha Mawatha,
Colombo 3.
During the period the 2nd respondent held office, firstly asAssistant Manager and then as Manager of Terra Nova Farm,Carsons, acting manifestly and to the knowledge of the 2ndrespondent Canagasingham for and on behalf of Farms Ltd.,exercised control and supervision over the work of the 2ndrespondent. Any instructions or directions issued by Carsons inthat regard were always stated to be ‘ for and on behalf of Farms& Retail Markets Ltd. ’. The 2nd respondent was paid his salaryby cheques drawn on accounts maintained by Farms at thePeople’s Bank at Mahiyangana and at Kandy. After the 2ndrespondent ceased to be Manager his Provident Fund entitlementamounting to Rs. 14,436.10 was paid to him by a cheque drawnby Carsons on their own account. But even here it is evident from1R16 that this amount was charged to Farms by Carsons.
TENNEKOON, J.—Carson Cumberbatch dk Co. Ltd. v. Nandasena
79
On the 4th of July 1970 the 2nd respondent made applicationtrader Section 31B of the Industrial Disputes Act claiming reliefin respect of the termination of his services ; relief was claimedfrom both Carsons (the appellant in these proceeding^) and fromFarms (the 3rd respondent), both of which companies he allegedwere his employers. The appellant filed answer stating that itwas not the Employer of the 2nd respondent and that it had,to the knowledge of the 2nd respondent at all relevant times,acted merely as ‘ Managers and Secretaries ’ of Farms. Farmsadmitted that it was the Employer.
At the inquiry before the Labour Tribunal counsel for theappellant and Farms objected to the Tribunal proceeding toenquiry as against the appellant on the ground that the appellantwas not an employer of the 2nd respondent. After a preliminaryenquiry, the Tribunal, being of the opinion that Carsons wasthe employer of the 2nd respondent together with Farms, madeorder (dated 11.7.71) that the enquiry should proceed againstboth of these companies.
Consequent on this order the appellant applied to the SupremeCourt for mandates in the nature of Writs of Certiorari andProhibition quashing the said order and restraining the tribunalfrom taking any further proceedings against the appellant onthe 2nd respondent’s application. The present appeal is from thejudgment of the Supreme Court (Rajaratnam, J. withWalgampaya, J. agreeing) by which Carson’s application forWrits of Certiorari and Prohibition was refused with costs. TheSupreme Court held—
that Writs of Certiorari and Prohibition were notavailable to the appellant as the question whetherCarsons (as well as Farms) was the employer of the2nd respondent was a mixed question of fact and lav/and that, therefore, the error, if error there was, wasone committed within jurisdiction.
(ii) that Carsons and Farms were the employers of the 2ndrespondent ; in coming to this conclusion the SupremeCourt took the view that the appellant’s acts on behalfof Farms constituted * the act of appointment itself ’and that although these acts were performed on behalfof Farms, the definition of the term employer in theIndustrial Disputes Act rendered the principal(Farms) and its agent (Carson) both employers of theappellant.
80
TENNEKOON, J.—Carson Cumberbatch dk Co. Ltd. v. Nandasena
In regard to the first question, namely, whether the decisionof the Labour Tribunal that Carson was an employer of the 2ndrespondent was a decision taken within jurisdiction and not ona jurisdictional fact we think that the Supreme Court was clearlyin error in the view it took.
The provisions of the Industrial Disputes Act under whichthe application was made to the Labour Tribunal and underwhich the Labour Tribunal proceeded to deal with the applicationclearly indicate that relief or redress may be claimed by aworkman only against ‘ his employer ’ and that an order madeupon such an application can operate only against suchemployer. It seems to us manifest that the Labour Tribunalcannot, by making a wrong decision as to the identity of theemployer, whether by reason of a mistake of fact or by reasonof a mistake of law, give itself power or jurisdiction to makeorders against a person who is not the particular workman’s4 employer ’ within the meaning of the Industrial Disputes Act.A statutory tribunal may step outside its jurisdiction in thecourse of its inquiry as well as at the outset, and this trans-gression may result from a mistake of law in the interpretationof the statute by which its jurisdiction is conferred or from anerroneous finding on a jurisdictional fact. Counsel for the 2ndrespondent did not seek to support the view taken by theSupreme Court on this part of the case, having regard to adecision of this Court in Colombo Paints Ltd. v. W. L. P. de Mel,Commissioner of Labour and three others.1 We do not in thecircumstances think it necessary to say anything further on thisquestion. We will content ourselves with a quotation from ajudgment of Farwell L. J. in Rex v. Shoreditch AssessmentCommittee Ex parte Morgan.*
“ No tribunal of inferior jurisdiction can by its own decisionfinally decide on the question of the existence of extent ofsuch jurisdiction ; such question is always subject to reviewby the High Court, which does not permit the inferiortribunal either to usurp a jurisdiction which it does notpossess, whether at all or to the extent claimed, or to refuseto exercise a jurisdiction which it has and ought to exercise.Subjection in this respect to the High Court is a necessaryand inseparable incident to all tribunals of limited jurisdic-tion ; for the existence of the limit necessitates an authorityto determine and enforce it ; it is a contradiction in termsto create a tribunal with limited jurisdiction and unlimitedpower to determine such limit at its own will and pleasure—such a tribunal would be autocratic, not limited and it is
119ft) re N. L. R. 409• 1910 K. B. 859 at 880.
TENNEKOON, J.—Carson Cumberbatch <& Co. Ltd. v. Nandasena
81
immaterial whether the decision of the inferior tribunal onthe question of the existence or non-existence of its ownjurisdiction is founded on law or fact.”
We would respectfully agree with this dictum.
We can now turn to a consideration of the 2nd question thatwas argued before us namely whether the appellant Carsonswas an employer of the 2nd respondent.
The term ‘ employer ’ is defined in section 48 of the IndustrialDisputes Act as follows : —
‘ employer ’ means any person who employs or on whosebehalf any other person employs any workman andincludes a body of employers (whether such body is afirm, company, corporation or trade union) and anyperson who on behalf of any other person employs anyworkman.
Omitting the portion in parenthesis, this definition can be splitup into three limbs thus : —
' employer ’ means—
any person who employs any workman,
any person on whose behalf any other person employs
any workman,
any person who on behalf of any other person employs
any workman.
The first limb of the definition, in so far as it gives a meaningto the term ‘ employer ’ by applying it to a ‘ person who employs ’ia unhelpful in that it says no more than that the term * employer ’is a substantival derivative of the verb ‘ to employ ’ ; but thedefinition is significant in that it defines ‘ employer ’ as a personwho employs another who is a workman. The act of ‘ employing ’an inanimate object does not bring two persons into relationshipwith each other. In such a context * employ ’ means only to * useas a means of instrument or as material ’. On the other handthe act of one person employing another brings two personsor legal entities into relationship with each other ; here ‘ employ ’means f use the services of ’ ; a person, cannot be employed byanother in the way in which a chattel or an animal is * employed ’by a human being ; slavery was abolished in this country over acentury ago by the Abolition of Slavery Ordinance (Cap. 75) ; aperson has first to agree to be employed and also to the terms,however bald or fragmentary, of the employment. The relation-ship that arises thus gives rise to rights and obligations on thepart of the employer and the employee. An^agent who engages aman for the purposes of his principal cannot himself be said to4 employ ' or utilise the services of that man. The conclusion then
82
TENNEKOON, J.—Carson Cumberbatch db Co. Ltd. v. Nandasena
that the concept of the person ‘ employing ’ another involveswithin it the existence of a contract between the personemploying and the person employed is irresistible. We areaccordingly of the opinion that when the first part of thedefinition of the term ‘ employer ’ speaks of ‘ a person whoemploys a workman ’ it contemplates a person who employsanother under a contract of service, express or implied, towhich the person employing and the person employed are theparties.
The verb ‘ employs ’ is used in a similar way in the second andthird parts of the definition and can bear only the same meaningas it has in the first limb ; we cannot think of any sufficient reasonto construe the second and third ‘ employs ’ in the definition tohave been used by the legislature in a sense different from thefirst; and in any event we find it difficult to contemplate any othersense in which the word can, in its context, be construed. Counselfor the 2nd respondent suggested that ‘ employs ’ may be usedin the sense of ‘ utilise the services of ’; we have no doubt thatthis is the sense in which it is used ; but the attribution of thismeaning to the word does not help to dispense with the resultantcontractual nexus which is the inevitable outcome of oneperson utilising the services of another. Having regard to thefactual context in which the question of who is or are theemployers of the 2nd respondent arises in this case, it must benoted that the definition of the word employer contains no refer-ence to control or supervision or management exercised by oneperson over another, so that it certainly does not have the effectof including cases in which a person not the contractual employer,may by reason of the control, supervision or managementexercised over a workman give only the appearance of being theemployer.
Counsel for the 2nd respondent submitted to us that in thefield of labour law, the legislature has generally given anextended meaning to the word ‘ employer *. He contended thatthe managing agent, Superintendent or the person in controlis made into a ‘ statutory ’ employer over and above the commonlaw employer in many statutes. He referred us to the definitionof the term employer in the following enactments : —
Workmen’s Compensation Ordinance, Chapter 139 which
defines employer to include any managing agent of anemployer.
The Shop and Office Employees Act, Chapter 129 which
defines employer to include the person having chargeor the general management and control of the shop oroffice.
TENNER OON, J.—Carson Cumbarbatch <fc Co. Ltd. v. Nandasena
83
The Maternity Benefits Ordinance, Chapter 140 which
defines employer to include any duly accreditedmanager, managing agent or other person who forthe time being is in charge of the shop, mine or fac-tory and the Superintendent or other person for thetime being in charge of an estate.
Indian Immigrant Labour Ordinance, Chapter 132
defines employer to include the Agent, Superintendentor the Manager or the Proprietor of an estate.
The Estate Labour (Indian) Ordinance, Chapter 133,
defines employer to include the Superintendent.
These enactments militate against rather than support thesubmissions of counsel, for the legislature by expressly includingManagers, Agents, and Superintendents has enlarged thecommon law meaning of the term employer. There are numerousother enactments in which the term employer is defined in amanner similar to that employed in the Industrial Disputes Act.(See Employees Provident Fund Act No. 15 of 1958, the WagesBoards Ordinance, Chapter 136, the Employees Holidays ActNo. 6 of 1959, and the Employment of Women, Young Personsand Children Act No. 47 of 1956). We must confess that wehave found this excursion into the field of labour legislation,unhelpful in trying to ascertain the meaning of the wordemployer as used in the Industrial Disputes Act. A more legi-timate and more profitable exercise would be to examine theIndustrial Disputes Act itself for any indication of the legislativeintent. We find considerable evidence within the four comersof the Industrial Disputes Act to support the view that anemployer, whether he be principal or agent, must have acontract of service with the workman. *'
We would refer in the first place to the definition of theexpression ‘ workman ’ as in the Industrial Disputes Act whichmeans—
“ Any person who has entered into or works under acontract with an employer in any capacity, whether thecontract is expressed or implied, oral or in writing, andwhether it is a contract of service or of apprenticeship, ora contract personally to execute any work or labour, andincludes any person ordinarily employed under any suchcontract whether such person is or is not in employmentat any particular time, and includes any person whoseservices have been terminated. ” (stress added)
84
TKNNEKOON, J.—Carson Cumberbatch dk Co. Ltd. v. Nandasena
It will be observed that the existence of a contract with hi*employer is the sine qua non for identifying a workman. Thenthere is a group of sections, viz., section 8, section 14, section 19and section 21 (D), all of which provide, in the case of a collec-tive agreement, a settlement by conciliation, a settlement byarbitration, or a settlement by adjudication, that the terms ofthe agreement or settlement or award as the case may be, ‘ shallbe implied terms in the contract of employment between theemployer and the workman ’ bound by the agreement, settle-ment or award. It is clear from those provisions that a commonlaw contract of service must subsist between the employer andthe workman before the two persons can be regarded as employerand workman. If anything further is required one need only lookat subsection 4 of section 33 of the Industrial Disputes Act. Thissubsection follows upon the provision in subsection 3 to theeffect that where an award or order of a Labour Tribunalcontains a decision for reinstatement of a workman, then ifthe employment is in the capacity of a personal secretary,personal clerk, personal attendant or personal chauffeur to theemployer, the award or order shall also contain a decision as tothe payment of compensation to the workman as an alternativeto his reinstatement. Subsection 4 then goes on to say—
“ For the purposes of the application of subsection (3) inany case where the employer is a company, the referencestherein to the employer shall be deemed to be referencesto the person (however designated) who is responsible forthe general management of the business of the company.”
This provision places beyond any doubt that a person who isresponsible for the general management of the business of acompany is not ordinarily caught up in the term employer.
To return now to the definition of the term ‘ employer ’ inthe Industrial Disputes Act, we are of opinion that the personreferred to as a person employing a workman in each of thethree limbs of the definition is intended to refer to a personwho is under contractual obligation to the workman. Thus thefirst limb of the definition will catch up a person who himselfengages a workman and also one who engages a workman throughan agent who is known to the latter to be acting as agent ; thesecond limb will apply to a principal on whose behalf an agent,without disclosing the existence or identity of his principalengages the services of a workman ; in such a case the workmanon discovering the existence and identity of the principal canhold him to the contract; the 3rd limb would include the type
TENNEKOON, J.—Carson Cumberbatch cfc Co. Ltd. v. Nandasena
86
of agent who is referred to under the second limb, because insuch a case the agent is at common law regarded as havingcontracted personally.
In the present case Farms would fall under the first limb andthe first limb only. Carsons would not fall under any limb ofthe definition ; this company at all times declared that it wasacting for Farms by using the expression ‘ for and on behalf ofFarms & Retail Markets Ltd. ’ in all correspondence and moreimportantly in 1R3 and 1R14 which form the basis of the con-tract. Here we would like to quote from the judgment of LordShaw of Dunfermline in the case of Universal Steam Navigation■Co. v. James McKelvis & Co1 1923 A. C. page 492 at 499 : —
“ But I desire to say that in my opinion the appending ofthe word ‘ agents ’ to the signature of a party to a mercan-tile contract is, in all cases, the dominating factor in thesolution of the problem of principal or agent. A highlyimprobable and conjectural case (in which this dominatingfactor might be overcome by other parts of the contract)may by an effort of the imagination be figured, but, apartfrom that, the appending of the word ‘ agent ’ to the signa-ture is a conclusive assertion of agency, and a conclusiverejection of the responsibility of a principal, and is andmust be accepted in that twofold sense by the othercontracting party. ”
There can be no doubt then that the contract, and the onlycontract, express or implied, into which the 2nd respondententered into was a contract with Farms.
For the reasons stated above the majority of us (Sirimane, J.dissenting) are of opinion that the Supreme Court was in errorin refusing the application of the appellant for a Mandate inthe nature of Writs of Certiorari and Prohibition. The appealsucceeds ; the judgment of the Supreme Court is set aside ; theorder of the Labour Tribunal dated 11th July, 1971 is quashed,and the Tribunal is directed to discontinue proceedings againstthe appellant.
The 2nd respondent will pay to the appellant its costs of thisappeal which we have decided to fix at Rs. 1,500.
Appeal allowed.
» 1923 A. C. 492 at 499.