(1980) 2S. L. R
Sri Lanka Law Reports
Ceylon Tyre Rebuilding Co., Ltd,v.
Perera and Others
COURT OF APPEAL.
WIMALARATNE, P. AND K. C. E. DE A.LWIS, J.
£LA. APPLICATION 2062/78.
SEPTEMBER 25, 1980.
Industrial Disputes Act—Minister’s reference to arbitration under section4 (t)—Same dispute pending before Labour Tribunal—Validity of thereference.
The petitioner Company terminated the 1st respondent’s services asSecretary to the Company. Whilst the 1st respondent’s application tothe Labour Tribunal was pending, the 3rd respondent, as Minister ofLabour, made an order under section 4 (1) of the Industrial DisputesAct referring the dispute for arbitration by the 2nd respondent.
The petitioner’s objection to the arbitrator’s jurisdiction was disallowedand the petitioner made this application to quash the arbitrator’sdecision and to prohibit him from further proceeding with thereference.
The Minister had the power to make a reference under section 4 (1) ofthe Act even when there was pending in the Labour Tribunal anapplication seeking relief in respect of the same dispute.
Nadarajah Ltd. v. Krishnadasan distinguished.
Cases referred to
Nadarajah Ltd. v. Krishnadasan, (1975) 78 N.L.R. 255.
S. C. 122/68—L.T. 2/19537, S.C. Minutes of 13.11.72.
Wimalascna v. Navaratne & Others, (1978-79) 2 Sri L.R. 10.
APPLICATION for Writs of Prohibition and Certiorari.
H. L. de Silva, with Chula de Silva, for the petitioner.
Isidore Fernando, for the 1st respondent.
C. Sithamparapillai, Senior State Counsel, for the 3rd respondent.
Cur. adv. vult.
October 15. 1980.
By this application the petitioner seeks to quash an orderdated 12.11.79 made by the 2nd respondent, an arbitratorappointed by the 3rd respondent under section 4 (1) of theIndustrial Disputes Act (Cap. 131) ; and also seeks to prohibitthe arbitrator from proceeding further with the arbitration. Theorder in question is one made on an objection relating to hisjurisdiction, taken by the petitioner as a preliminary objection.The objection was on the ground that the Minister of Labourhad no power to make a valid reference of an industrial disputeto arbitration under section 4 (1) when there was pending inthe Labour Tribunal an application seeking relief under section31B of the Act in respect of the same dispute. The arbitratorhas overruled the preliminary objection.
CA Cey.'on T> re Rebuilding Co. v. Perera (Wima’aratne, P.J 37
The events leading to the reference to arbitration are brieflyas follows, and do not appear to be in dispute. The 1st respon-dent’s services as secretary of the petitioner company wereterminated as from 1.4.76. She made two applications, both on5,4.76. In one she invoked the provisions of section 6 of theTermination of Employment of Workmen (Special Provisions)Act, No. 45 of 1971 ; and in the other she sought relief undersection 31B of the Industrial Disputes Act in the Labour Tribunalclaiming compensation in a sum of Rs. 100,000. The Commis-sioner of Labour held an inquiry and determined that thetermination of her services -was illegal, but recommended thatshe should pursue the question of compensation for wrongfultermination before the Labour Tribunal. That was on 23.2.77.The employer filed answer thereafter on 14.3.77 and one of theobjections taken was that as the employee had invoked theprovisions of the Termination Act, she was not entitled to therelief claimed before the Labour Tribunal; and this, in spite ofthe fact that the inquiry before the Tribunal was postponed ofconsent on several occasions pending the disposal of the matterbefore the Commissioner of Labour.
Whilst written submissions were tendered by the parties per-taining to the jurisdiction of the Labour Tribunal, the 3rdrespondent who is the Minister of Labour, made an order undersection 4 (1) dated 31.1.78 referring the dispute as to whetherthe termination of the services of the 1st respondent by the peti-tioner was justified and as to what relief she is entitled, fordetermination by the 2nd respondent. Counsel for the 1st res-pondent thereupon invited the Tribunal to make an order interms of section 31B (2) (b) which is in the following terms : —
“A labour tribunal shall, where it is so satisfied thatsuch matter constitutes, or forms part of an industrialdispute referred by the Minister under section 4 forsettlement by arbitration to an arbitrator, or forsettlement to an Industrial Court, make order dismissingthe application, without prejudice to the rights of the partiesin the industrial dispute. ”
The Tribunal made order on 14.7.78 dismissing the applicationbefore it without prejudice to the rights of the parties. 'Thepetitioner appealed against this order, but the Supreme Courtdismissed the appeal on 20.7.79. It is under these circumstancesthat the Arbitrator made his order disallowing the objection tohis jurisdiction.
Learned counsel for the petitioner relied heavily on thedecision of the Supreme Court in Nadarajah Ltd. v. Krishna-iasan (1) on the principle that the Executive cannot interfere
Sri Lanka Law Reports
(1980) 2 S.L.R
in a pending proceeding of a judicial nature. In that case theMinister had referred an industrial dispute for arbitration byX. He subsequently revoked the reference and issued a freshreference to Y. But the present case is clearly distinguishable.Not only that, but there is specific provision for such a courseimplicit in section 31B (2) (b) referred to above. In my viewthis subsection is applicable not only to a reference to arbitra-tion made before an application is made to the LabourTribunal, but also to a reference made whilst an applicationbefore a Labour Tribunal is pending. Otherwise, it would bequite easy for a party to an industrial dispute to frustrate theMinister’s powers under section 4 (1) by “ rushing ” to a LabourTribunal with an. application for relief under section 31B. Thisview is supported by a judgment of the Supreme Court (2).In that case too the Minister referred an industrial dispute forarbitration under section 4 (1) whilst proceedings in respectof the same dispute were pending in the Labour Tribunal. TheTribunal refused to suspend the proceedings, heard the caseand dismissed it as the application had been filed out of time.G. P. A. Silva, J. held that the proceedings were irregular andwithout jurisdiction in view of the imperative provisions ofsection 31B (2) (b) ; and held further that the Tribunal shouldhave dismissed the action under that section.
The same view has been taken by Ratwatte, J., also in anunreported case (3), where the facts are identical to the factsin the present case.
I am therefore of the view that a reference of an industrialdispute by the Minister under section 4 (1) of the IndustrialDisputes Act is a valid reference, even though it be made ata time when proceedings instituted under section 31B of theAct are pending before a Labour Tribunal.
It has also been contended that although the termination of the1st respondent’s services was on 1.4.76, the Minister’s referenceunder section 4(1) was not made until 31.1.78. Quite apart fromthe absence of a time limit stipulated in section 4 (1), it has tobe stated that the petitioner himself was solely responsible forthe delay, and cannot be heard to complain.
For these reasons I would dismiss this application, with costspayable by the petitioner to the 1st respondent in a sum ofRs. 500, and to the other respondents in a sum of Rs. 500.
K.C. E. DE ALWIS, J.—I agree.
Ceylon Tyre Rebuilding Co., Ltd. v.Perera and Others