Ceylon Coconut Producers' Co-operative Union, Ltd. v. Jayakody
1962Present : T. S. Fernando, J.
CEYLON COCONUT PRODUCERS’ CO-OPERATIVE UNION, LTD.Appellant, and C. JAYAKODY, Respondent
S. C. 14 of 1960—Labour Tribunal Case No. 2 j 1915Workman employed by a registered co-operative society—Right to apply for reliefsobtainable under Industrial Disputes Act—Co-operative Societies Ordinance(Cap. 124), a. 53—Industrial Disputes Act (Cap. 131), as amended by ActNo. 62 of 1957, ss. 31 b, 33 (1)—Applicability of maxim Generalia specialibusnon derogant.
Section 53 of the Co-operative Societies Ordinance, which declares that thedecision of the arbitrator and/or the Registrar in a certain class of disputesbetween a registered co-operative society and any employee thereof “ shall befinal and shall not be called in question in any civil court ”, does not oust thejurisdiction of a Labour Tribunal to grant relief to the employee if he is aworkman within the meaning of the Industrial Disputes Act, and, as such,chooses to make an application for re’ief in terms of section 31b of the IndustrialDisputes Act (Cap. 131), as amended by Act No. 62 of 1957. In such a ease,;the maxim Oeneralia specialibus non derogant is not applicable.
In a dispute falling within section 53 of the Co-operative Societies Ordinanc6the arbitrator or . the registrar must decide in accordance with the legal rightsof the parties and cannot give the ampler reliefs available to a workman throughthe machinery of the Industrial Disputes Act.
170T. S. FERNANDO, J.—Ceylon Coconut Producers' Co-operative
Union, Ltd. v. Jayakody
A. PI'EAL from an order of a Labour Tribunal.
W. Jayewardcne, Q.C., with E. R. S. R. Ooomaraswamy and G. P.Fernando, for the appellant.p
L. G. W eeramantry, with R. L. Jayasuriya, for the respondent.
A. L. S. Sirimane, acting Solicitor-General, with H. Deheragoda andA. Mahendrarajah, Crown Counsel, as amicus Curiae. • *
Cur. adv. vult.
May 14, 1962. T. S. Fernando, J.—
This appeal from an order made by a Labour Tribunal raises a questionof some importance to employees of societies registered under the Co-operative Societies Ordinance ot 1936 (now Cap.124).
The respondent alleging that his employment as Assistant Secretaryof the appellant society was summarily terminated without notice orreasonable cause made an application to a Labour Tribunal claiming ‘interms* of section 31b of the Industrial Disputes Act, No. 43 of 1950 (nowCap. 131) as amended by the Industrial Disputes Act, No. 62 of 1957,(a) reinstatement in employment, (b) arrears of salary as from date oftermination of employment, and (c) a return of a sum of Rs. 1,500deposited by him with the appellant as security. The appellant societyraised two objections to the maintainability of the application—(i) that the respondent was not a workman within the meaning of section31 b of the Industrial Disputes Act, and (ii) that section 53 (formerly 45)of the Co-operative Societies Ordinance has the effect of depriving a. Labour Tribunal of any jurisdiction to entertain the application. Thetribunal after hearing argument held against the appellant on bothobjections, and the appeal before me was designed to canvass the correct-ness of the order of the Tribunal. At the commencement of the argu-ment, learned counsel for the appellant-society indicated that he did notpropose to pursue the point raised in the petition of appeal that therespondent was not a “ workman ” as defined in the Industrial DisputesAct. He confined his argument to the second objection referred to above,viz., the question of section 53 of the Co-operative Societies Ordinanceoperating as a bar to a Labour Tribunal exercising jurisdiction in termsof the Industrial Disputes Aot.
Section 53 referred to above enacts, inter alia, that if any disputetouching the business of a registered society arises between the societyand any employee thereof, whether past or present, such dispute shall bereferred to the Registrar for decision. The Registrar can either decidethe d-spute himself or refer it for disposal to an arbitrator. A partyaggrieved by an award of the arbitrator can appeal therefromto the Registrar. The decision of the Registrar and an award of thearbitrator (where no appeal is preferre d to the Registrar)— to reproducethe words of the statute—“shall be final and shall not be called in question
T. S. FERNANDO, .T.—Ceylon Coconut Producers' Co-operative
Union, Ltd. v. Jayakody
in any civil court”. This section came up for consideration by the SupremeCourt in the case of Sanmugam v. Badulla Co-operative Stores Union,Ltd.1 and the Court there held that it had the effect of ousting the juris-diction of the ordinary courts over a dispute touching the business of aregistered society arising between the persons enumerated in the section.The correctness of this decision of the Supreme Court is not doubted,and ind2ed learned counsel for the respondent advanced his argumentsin support of the order on the basis that this decision, which was notconcerned with the Industrial Disputes Act passed after the institutionof the action in that case, in no way affects the soundness of his conten-tion that the Labour Tribunal’s jurisdiction acquired under Act No. 62of 1957 and now invoked by the respondent is not thereby ousted. Rely-ing on the decision of this court in Sanmugam’scase (supra),Mi. Jayewar-dene argued that in the class of disputes contemplated in section 53 thejurisdiction of the arbitrator and/or the Registrar, as the case may be,was exclusive, and could not be taken away except by express words.
The argument on behalf of the respondent was that the question of anyconflict between the jurisdiction of the tribunals contemplated in section53 of the Co-operative Societies Ordinance and that of the Labour Tribu-nals established after 1957 under Part IV A of the Industrial Disputes Actdoes not really arise as the powers of the tribunals under the first-mentioned statute are not co-extensive with those of the Labour Tribunal.As an instance thereof, Mr. Jayasuriya contended that under our commonlaw a dismissed servant cannot claim from any court of law a light toreinstatement in employment. “The Court will not decree specificperformance of a contract for personal service, or of any contract which itwould be impracticable or inexpedient for the Court to enforce specifi-cally”— see Lee and Honore on The South African Law of Obligations,1950 ed., page 49, section 195. Section 33 (1) of the Industrial DisputesAot (as amended) enables a Labour Tribunal, on the other hand, to orderreinstatement in employment of an employee who has been discontinui d.A further contention advanced by him was that an arbitrator or theregistrar referred to in section 53 of the Co-operative Societies Ordinancehas to decide the matter of a dispute referred to him according to thelegal rights of parties and that, therefore, he has no power to make anaward which a court of law itself cannot make. I think the contentionthat an arbitrator or registrar referrt d to above has not the power toorder reinstatement in employment derives support from an exam nationof the general powers and duties of arbitrators. “ It is the duty of anarbitrator, in the absence of express provision in the submission to thecontrary, to decide the questions submitted to him according to thelegal rights of the parties, and not according to what he may considerfair and reasonable in the circumstances ”—see Russell on Arbitration,16th ed., p. 126. I might include here also certain observations made in
R.v. National Arbitration Tribunal, Ex Parte Horatio Crowther Co., Ltd.,2a case where a certiorari to quash on the ground of want or excess of *
1 (1962) 64 N. L. P.. 1G.
* (1947) 2 A. E. R. 693 at 696.
178 T. S. FERNANDO, J.—Ceylon Coconut Producers' Co-operative
Union, Ltd. v. Jayakody
jurisdiction was allowed in respect of that part of an award mads, by theNational Arpitration Tribunal as related to reinstatement in employ-ment
“ There are no express word3 either in the regulation or in' theOrder which in terms give the tribunal any power to reinstate, butit is said that as thej” have power to deal with any question relating,toemployment or non-employment it follows that they must have 'thepower to make an award of reinstatement. It seems to me a strangething to say, looking at this regulation which alone gives force to theOrder, that a power is thereby impliedly given to the tribunal to. granta remedy which no court of law or equity has ever considered they
had power to grantIt is true that this
tribunal c m do what no court can, namely, add to or alter the termsor conditions of the contract of service. Express power to do so isgiven by the regulation, while theie are no words conferring a powerto reinstate or revive a contract lawfully determined.”
It is not, in my opinion, an unreasonable inference to make that bytaking away the power of the courts in disputes falling within section 53of the Co-operative Societies Ordinance and by placing the decision ofthese disputes in the hands of the arbitrator or the registrar the legisla-ture did not intend either to enlarge or restrict the legal rights of theparties.
So long as it is not disputed that the respondent is a workman withinthe meaning of the Industrial Disputes Act, is there an3' good reason toreach a conclusion that remedies wider than those available throughresort to the ordinary or regular courts that may be invoked through themedium of inquiries possible on an application mede under section 31bof the Industrial Disputes Act are not open to employees of societiesregistered under the Co-operative Societies Ordinance ? I was impressedby the argument advanced by Mr. Jayasuriya for the respondent thatto uphold the contention that section 53 of the Co-operative SocietiesOrdinance excludes employees of societies registered under thatOrdinance from maintaining applications for the ampler reliefs obtainablethrough the machinery of the Industrial Disputes Act would operateas a discrimination, unwarranted in law, against employees of co-operative societies who tod.iy form numerically a substantial body ofpersons in this country.
The learned Solicitor-General, who appeared as amicus curiae at theinstance of the court and whose assistance at the argument I acknowledgethankfully, suggested that the -real question arising hereon may beframed as follows :— Does section 53 of the Co-operative SocietiesOrd nance create a statutory bar to the respondent taking his disputewith the appellant to the Labour Tribunal ? He submitted that theCo-operative Societies Ordinance is a special statute dealing—so faras the subject-matter of section 53 is concerned—witn a special classor special classes of persons described in’the said section, while theIndustrial Disputes Act is a general statute. Referring to the maxim,
T. S. FERNANDO, J.—Ceylon Coconut Producers' Co-operative
Union, Ltd. v. Jayakody
“ Generalia specialibus non derogant ”, he submitted that the specialstatute must be given effect to unless expressly repealed by the latergeneral statute. The matter is referred to thus in Craies on StatuteLaw, 5th ed. pp. 348-349 —“ The general rule, that prior statutes areheld to be repealed by impb'cation by subsequent statutes if the two arerepugnant, is said not to apply if the prior enactment is special and thesubsequent is general.” In the other equally well-known treatise on theInterpretation of Statutes by Maxwell, 10th ed., pp. 176-177, it is statedthat “ a general later law does not abrogate an earlier special one by.mere implication ”, or to use the words of Lord Selborne, L.C. inSeward v. Vera Cruz1, “where there are general words in a later Actcapable of reasonable and sensible application without extending themto subjects specifically dealt with by earlier legislation, you aic not tohold that earlier and special legislation indirectly repealed,, altered orderogated from merely by force of such general words without anyindication of a particular intention to do so ”. In such cases it ispresumed to have only general cases in view, and not particular caseswhich have been already otherwise provided for by the special Act.Having already given its attention to the particular subject and providedfor it, the legislature is reasonably presumed not to intend to alter thatspecial provision by a subsequent general enactment unless that intentionbe manifested in explicit language, or there be something which showsthat the attention of the legislature had been turned to the special Actand that the general one was intended to embrace the special casesprovided for by the previous one, or there be something in the nature ofthe general one making it unlikely that an exception was intended asregards the special Act. In the absence of these conditions, the generalstatute is read as silently excluding from its operation the cases whichhave been provided for by the special one.—Maxwell, 10th ed, p. 177..
Even on the assumption that, in the sense referred to in the passageabove quoted, the Co-operative Societies Ordinance is a special Actand the later Act, the Industrial Disputes Act, is a general Act, I findmyself unable, with all respect, to agree -with the submission made thatthe respondent on the present appeal has to confine himself to themachinery of settlement of disputes as established under the Co-operativeSocieties Ordinance. In Maxwell's treatise itself, 10th ed., p. 180, dealingwith the maxim “generalia specialibus non derogant”, there is thefollowing comment:—“ To be affected by this rule, Acts must coverthe same territory”. In the case of Walker v. Hemmant2, where theappellant relied on a right of appeal that lay to him under the CriminalJustice Administration Act of 1914, and it was argued contra that anearlier special Act, the Coal Mines Act of 1911, deprived him of the rightof appeal in the particular circumstances, the King’s Bench Divisionheld that the case was not one where a later and general Act hasderogated from earlier and special legislation, but that the later Actprovides an extension of the right of appeal granted by the earlier
• (1943) 1 K. B. D. G04.
1 (1884) 10 A. G. 08.
Wijcauriya v. Moonesinghc
statute. Three Judges of the Court agreed that the maxim did not applyas the two enactments concerned “did not cover the same territory”. It is,in my opinion, not reasonable to conclude that the wider reliefs obtainableby recourse to the machinery of the later Act which it is claimed embodiesmodem ideas designed for the purpose of preventing, investigating andsettling industrial disputes, e.g., an order as may appear to the Tribunalto be just and equitable—(section 31c) or an order directing a reinstate-ment in service—(section 33 (1)—were intended to be’excepted in casesof disputes which would but for this later Act have fallen to be dealtwith under the earlier special Act. The maxim referred to abovedoes not therefore, in my opinion, apply.
For the reasons I have indicated above, the second objection alsofails, and this appeal is dismissed with costs.
CEYLON COCONUT PRODUCERS CO- OPERATIVE UNION, LTD. Appellant, and C. JAYAKODY,