048-NLR-NLR-V-61-COMMERCIAL-BANKS-ASSOCIATION-CEYLON-Petitioner-and-D.-E.-WIJEYEWARDENE-and-.pdf
196 BASNAYAKE, C. J.—Commercial Banks Association (Ceylon) v. Wijeyewardene
1959 Present: Basnayake, C.J., PuUe, 3and H. Iff. G. Fernando, J.
COMMERCIAL BANKS ASSOCIATION (CEYLON), Petitioner, and
E. WIJ EYE WARDENS and others, Respondents
S. G. 326—In the matter of an Application for the issue of a Mandate in thenature of a Writ of Certiorari, and in the nature of a Writ of Prohibition, andin the nature of a Writ of Mandamus
Industrial dispute—Reference to District Judge for settlement Jyy arbitration—Awardtnade thereunder—Subsquent reference on a matter falling within the scopeof the subject matter of the earlier reference—Jurisdiction of the District Judgeto entertain it—Industrial Disputes Act, No. 43 of 1950, as amended by IndustrialDisputes (Amendment) Act, No. 25 of 1955, ss. 3 (1) (d), 16, 17,19, 20, 47.
An industrial dispute between the petitioner (employers) and the 2nd res-pondent (employees) relating to “ Superannuation Schemes ” was referred forsettlement by arbitration to the District Judge of Colombo in terms of section3 (1) (d) of the Industrial Disputes Act, 1950, as amended by Act No. 25 of 1956.After the District Judge had made his award, there was another similar referenceto the District Judge in respect of a dispute between the same parties arisingout of a demand made hy the employees for dearness allowances on pensio nsand for the grant of three months leave prior to retirement.
Meld, that the District Judge had jurisdiction to entertain the second referencealso and make an award on it. It could not be contended that without repudia-ting the earlier award under section 20 of the Industrial Disputes Act a partyto that award was not entitled to raise any dispute falling within the scope ofsuperannuation schemes.
A
-^Application for the issue of three mandates, one in the nature of aWrit of Certiorari, another in the nature of a Writ of Prohibition, and the"third in the nature of a Writ of Mandamus.
H. V. Perera, Q.G., with E. E. N. Gfratiaen, Q.G., and 8. J. Kadirgamar,for Petitioner.
S. Nadesan, Q.O., with J. G. Thurairatnam, foT 2nd Respondent.
A. G. Alles, Deputy Solicitor-General, with R. S. Wanasundera, CrownCounsel, for 3rd Respondent.
Cur. adv. vult.
March 23, 1959. Rasnayaks, C.J.—
This is an application by the Commercial Banks Association of Ceylon*a registered Trade Union, for the issue of three mandates, one in the natureof a Writ of Certiorari, another in the nature of a Writ of Prohibition,and the third in the nature of a Writ of Mandamus, on D. E. Wijeye-wardene, District Judge of Colombo, the Ceylon Bank Employees’Union, and the Commissioner of Labour. The first respondent did notappear at the hearing. The second respondent Trade Union had ceased
BASNAYAKJ3, G.J.—Commercial Banks Association (OeyIon) v. W’ijetfewt&dene. •. Ifl7i
to be a registered Trade Union at the date of hearing, but we grantedaudience to the counsel who appeared for the Union. • The third'respondent was represented by the Deputy Solicitor-General, . , , -,
At the argument learned counsel pressed only the application in respectof a, mandate in the nature of Writ of Prohibition.
Shortly the facts are as follows :—Prior to 1955 a dispute having arisenbetween tbe petitioner and the second respondent, by consent of parties,it was referred by the Commissioner of Labour for settlement by arbitra-tion. As no arbitrator was nominated by them, the reference was' madeto the District Judge of Colombo. That reference was in the followingterms :—
“ The Industrial Disputes Act No. 43 of I960
As amended by Industrial Disputes (Amendment) ActNo. 25 of 1956.
Order under Section 3 (1) (<£)
Whereas an Industrial Dispute in respect of the matters specifiedin the statement which accompanies this Order exists in the Districtof Colombo, between tbe Commercial Banks’ Association (Ceylon),c/o The National Bank of India Limited, P. O. Box 112, Colombo 1,and the Ceylon Bank Employees’ Union, 94 2/4, York Building.Colombo 1;
And whereas the parties to the said dispute have consented to thereference of the said dispute for settlement by arbitration;
And whereas the parties to the said dispute have not jointly nomi-'nated any person to be the Arbitrator for the said purpose :'
Now, therefore, I, Muttiah Rajanayagam, Commissioner of Labour,do, by virtue of the powers vested in me by Section 3 (1) (d) of the saidIndustrial Disputes (Amendment) Act No. 25 of 1956, hereby refer theaforesaid dispute to the District Judge of Colombo, for settlement byarbitration.
Dated at the office of the Commissioner of Labour, Colombo, thiseleventh day of April One thousand Nine Hundred and Fifty-six. J"
M. Rajanayagam,Commissioner of Labour.
The Statement, in terms of Section 16 of the Industrial Disputes Act,No. 43 of 1950 referred to above—
" >,
The matters in dispute are Super-annuation Schemes.
Dated at the Office of the Commissioner of Labour, Colombo, thiseleventh day of April One thousand Nine Hundred and Fifty-six.
M. Rajanayagam, 'Commissioner of Labour
*- •v
2*.
. X. B 19366 (L2/59
108 BASSAYAKB, C.J.—Commercial Banka -Association {Ceylon) v. Wijeycwardene
In pursuance of this reference after hearing the parties to the disputethe District Judge on 29th November 1956 made an award—
“ (a) that all Banks should provide a Pension Scheme as well as aProvident Fund Scheme,
that the Banks’ contribution should be 10% and the employees’
contribution 5% and the rate of interest 5%. The contri-butions to be made from 1st April, 1956,
that the Provident Fund rules of the Mercantile Bank be adopted
by all Banks with necessary modifications,
that the Pension Scheme drawn up by Mr. Crossette Thambiah
be adopted with a few modifications. The Pension Schemeto be non-contributory,
that the modification to the Pension Scheme be—
that the pension should be calculated on the average
of the salary drawn in the last three years’ service,
that the proportion of the pension should be—
the number of years’ service plus 5 years
60
(J) that the pension should be as of right and legally enforceableand should not be made payable at the discretion of thedirectors. ”
Thereafter on 15th October 1967 the Acting Commissioner of Labourwith the consent of the parties referred the award to the District Judge forhis interpretation of two questions that had arisen since it 'was made.They are—
“ (a) Whether the Pension Scheme set out in the award has effectfrom 1.4.56 ?
(&) Who are the workmen to whom the award relates % ”
The first question the District Judge answered in the affirmative. Inregard to the second he said it was binding on the Ceylon Bank Employees’Union and the Commercial Banks’ Union and all workers who are in theCeylon Bank Employees’ Union.
On the same day the Acting Commissioner of Labour made anotherreference to the District Judge as the parties had not nominated anarbitrator. It is in the following terms :—
“ No. C/I. 5 (3).
The Industrial Disputes Act, No. 43 of 1950
As amended by Industrial Disputes (Amendment) ActsNos. 25 of 1956 and 14 of 1957 .
Order under Section 3 (1) (d)
Whereas an industrial dispute in respect of the matters specifiedin the statement which is appended to this Order exists in the Districtof Colombo, between the Commercial Banks’ Association (Ceylon^
BASNAYAKE, C.J.—Oommeroial Banks Association (Ceylon)*. Wijeyetcardene 190
C/o The National Bank of India Limited, P. 0. Box 112, Colombo 1,and the Ceylon Bank Employees’ Union, 94 2/4 York Building,Colombo 1 ;
And whereas the parties to the said dispute have consented to thereference of the said dispute for settlement by arbitration ;
And whereas the parties to the said dispute have not jointly nomi-nated any person to be the Arbitrator for the said purpose ;
Now, therefore, I, Charles Banda Knmarasinha, Acting Commissionerof Labour, do, by virtue of the powers vested in me by section 3 (1) (d)of the said Industrial Disputes Act No. 43 of 1950 as amended by theIndustrial Disputes (Amendment) Act No. 25 of 1956 and the IndustrialDisputes (Amendment) Act No. 14 of 1957, hereby refer the aforesaiddispute to the District Judge of Colombo, for settlement byarbitration.
Dated at the office of the Commissioner of Labour, Colombo, thisfifteenth day of October, One thousand nine hundred and fifty-seven.
Sgd. C. B. Kttmahasinha,Acting Commissioner of Labour:
ig The Statement, in terms of Section 16 of the Industrial DisputesAct No. 43 of 1950, referred to above—
The matters in dispute are as follows :—
Dearness allowance should be paid on pensions at the rates
paid by Government to its pensioners, and
The practice of granting 3 months’ leave preparatory to re-
tirement should be continued.”
Dated at the office of the Commissioner of Labour, Colombo, thisfifteenth day of October, One thousand nine hundred and fifty-seven.
Sgd. C. B. Kxtmahasikha,Acting Commissioner of Labour.!’
This reference was made in consequence of the following joint applica-tion made by the Commercial Banks’ Association (Ceylon) and theCeylon Bank Employees’ Union. It reads as follows :—
‘‘ To : The Commissioner of Labour Colombo.
The Commercial Banks’ Association (Ceylon) and the Ceylon BankEmployees’ Union do hereby consent to the reference of the industrialdispute which exists between the said Association and the said Unionin respect of the matters specified in para 2 hereunder, for settlementby arbitration in terms of section 3 (1) (d) o Ithe Industrial Disputes
200 BASNTAY A K. ro, C.J.—Commercial Banka Association (Ceylon) v. Wijeyexoar dene
Act, No. 43 of 1950, as amended by the Industrial Disputes (*A manAct No. 25 of 1956 and the Industrial Disputes (Amendment)Act No. 14 of 1957. ”
The matters in dispute referred to above are as follows :—
“ (a) Dearness allowances should be paid on pensions at the ratespaid by Government to its pensioners,
The practice of granting 3 months’ leave preparatory to retire-ment should be continued.”
This request is signed by the Chairman and Secretary of the Commer-cial Banks’ Association (Ceylon) and by the President and General Secre-tary of the Ceylon Bank Employees’ Union. The District Judge whothe original award took the view that these were new matters which didnot arise out of the previous award and left it to his successor to dealwith the reference. When the matter came up for consideration beforehis successor the first respondent, counsel for the Commercial BanksUnion submitted that he had no jurisdiction to make an award as thematters in dispute came within the reference of the dispute on “ Super-annuation Schemes ”. After hearing counsel the District Judge heldthat he had jurisdiction to entertain the reference and make an award.Thereupon the instant application was made to this Court.
It was contended by learned counsel for the petitioner that the awardmade on 29th November 1956 was, by the operation of section 19, bindingon the employers and workmen referred to in the award and that theterms of the award became implied terms of the contract of employmentbetween those employers and workmen and that without repudiatingthe award under section 20 a parly to that award was not entitled to raiseany dispute falling within the ambit of the dispute “ SuperannuationSchemes ”. He contended that the District Judge had therefore nojurisdiction to make an award on the reference.
The District Judge’s authority to make an award arises only upon thereference of a dispute under section 3 (ii) of the Industrial Disputes ActNo. 43 of 1950. Under that provision the Commissioner is empoweredto refer a dispute for settlement by arbitration, if both parties to thedispute consent to such a reference being made, to a person nominatedjointly by the parties, or in the absence of such a nomination to theDistrict Judge. In the instant ease the parties not having nominated anarbitrator the dispute was referred to the District Judge and the DistrictJudge has authority to decide the reference. Where the District Judgeacts as arbitrator of a dispute referred to btm under section 3 (ii) forsettlement by arbitration he exercises the function of an arbitrator as apersona designate and not qua District Judge. He exercises powersgiven by the Industrial Disputes Act and not by the Courts Ordinance.In the instant case the reference by the Commissioner, the legality ofwhich is not challenged, empowered the District Judge to exercise thefunctions of an arbitrator. Section 17 of the Act provides that whenan industrial dispute is referred under section 3 to an arbitrator for
BASNATAEE, C. J.—Commercial Banks Association [Ceylon) v. Wiyeyeutardene 201
settlement by arbitration he shall make all such inquiries into the disputeaa he may consider necessary, hear such evidence as may be tenderedby the parties to the dispute, and thereafter make such award as mayappear to him just and equitable. If he is District Judge he is requiredto give the mattes of arbitration, as far as may be, priority over his otherwork. In the instant case the District Judge was bound to carry out thedirections contained in section 17 on receipt of the reference under section3 (ii) and he acted within the ambit of his powers in proceeding to inquireinto the disputes referred to him and make his award. The applicationmust therefore fail and I accordingly refuse it.
The action of the petitioners in signing a formal consent to a referenceto arbitration and thereafter challenging the jurisdiction of the DistrictJudge is puzzling. The petitioner was not bound to consent to thereference and was free to refuse to do so on the ground that dearnessallowance and leave preparatory to retirement were matters arising onthe reference of the dispute on “ Superannuation Schemes ” and thatthey could not properly be the subject of a reference so long as the awardon “ Superannuation Schemes ” remained in force. But they chosethe strange course of consenting to a reference and denouncing it later.
The question whether prohibition lies in this case was not argued beforeus. Counsel proceeded on the assumption that it does lie. Lest silencebe misconstrued I wish to add that this judgment should not be takenas deciding that prohibition lies to the District Judge to whom a disputeunder section 3 (1) (d) of the Industrial Disputes Act is referred, norshould it be regarded as a precedent for the proposition that certiorariand prohibition lie against an arbitrator appointed under section 3 (1) (d)of the Act,
Before I conclude this judgment I wish to observe that the form inwhich the disputes have been referred to the District Judge for arbitra-tion is unsatisfactory and unhelpful. In the very first reference thedispute is stated as “ Superannuation Schemes ”. Surely that is not adispute. That was what both employers and employees were seekingto establish. But in the formulation of such a scheme there must becertain matters on which the parties were in agreement and others on whichthe parties were at variance. The matters for the decision of the arbi-trator would be only those on which the parties were at variance. Those.should have been specifically stated in the reference together with astatement of the facts relating to the matters in dispute in the following■order. First so much of the matters on which the parties are in agreementas are relevant for the decision of the matters in dispute, next the mattersin dispute, then the position taken up by the employer and the claimof the employees and finally in the form of questions for decision thematters on which an award is sought. Such a statement is contemplatedin section 16 and would considerably reduce the time taken in deter-mining an award. It is imperative that all steps that would conservethe time of the District Judge should be taken as District Judges find it■difficult to spare time for extra judicial work.
202
FTJLXiE, J.—Commercial Banka Association (Ceylon) v. Wijeyewardene
X.
I therefore dismiss the application. The first respondent-did not appearat the hearing. The third respondent did not ask for coats. The secondrespondent is no longer a registered Trade Union. I therefore make noorder for costs.
PULLE, J.—
The main ground on which the application of the Commercial BankaAssociation (Ceylon) for a writ of prohibition is opposed is the factthat the applicants consented to a settlement by arbitration, in termsof section 3 (1) (d) of the Industrial Disputes Act, No. 43 of 1950, asamended by the Industrial Disputes (Amendment) Act, No. 25 of 1956,of the industrial dispute which had arisen between them and the CeylonBank Employees Union. It was submitted on behalf of the Union thatonce a reference is made by a Commissioner of Labour it was competentfor the District Judge in the role of an arbitrator, carrying out the dutieslaid down by section 17, to decide not only matters of a factual characterbut also any question of law germane to the issue whether there is anylegal bar to the making of an award in favour of one side or the otherand that a decision of such a question of law, even if erroneous, is bindingon the parties to the dispute.
In dealing with the form of the relief claimed in this case it has to bekept prominently in view that the proceedings, the continuation of whichthe applicants seek to arrest, were not forced on them but to whichthey were a consenting party. Even assuming that, as a matter of law,the Bank Employees Union were disentitled to an award in their favouron either of the matters referred to arbitration so long as the award of29th November, 1956, remained unrepudiated, there was none the lessan “ industrial dispute ” within the meaning of section 47 which theCommissioner of Labour could, with the consent of the parties, refer toarbitration for settlement. It seems to me, judging by the argumentsput forward before the District Judge, that it was an integral part of thedispute whether or not in the absence of a repudiation under section 20by the Bank Employees Union it was competent for the District Judge togrant their new demands. I am of the opinion that the applicants having,consented to the determination by arbitration of the question of lawgrounded on section 20 are now precluded from questioning its correctness-in exactly the same way that the Bank Employees Union would havebeen precluded by a writ of certiorari or mandaimts from challenging adetermination upholding the submission of the applicants that the Unionwas not, in the absence of a repudiation of the existing award, entitled,to a fresh award in their favour.
I agree with the conclusions reached by my Lord, the Chief Justice,,and my brother H. N. 6. Fernando that prohibition does not lie and that-the application should be dismissed.
H. K. 6. Jb'itRNANDO, J.—Commercial Banka Association {Ceylon)^203
v. Wijeyetoardene
EL N. G. Feknastdo, J.—
The facts relevant to this application are stated in the judgment ofMy Lord, the Chief Justice and I need not recapitulate them.
The ground of the application is that the first respondent has no juris-diction whatsoever in law or in terms of the Industrial Disputes Act tohear or to make any award upon the two matters in dispute, i.e. whetherdearness allowances on pensions should be paid by employers and whetherthree months leave prior to retirement should 'be granted. The argumentfor the petitioner has been that the aforesaid two matters fall within thescope of the subject “ Superannuation Schemes ”, that the earlier awarddated 29th November 1956, made on that subject, is in terms of Section 19of the Act binding on the second respondent, that so long as that awardis binding no matter which fell within the scope of the subject of super-annuation schemes can be dealt with in a new award, and that thereforethe first respondent does not have jurisdiction to make an award allowingthe demand made by the second respondent in respect of the two matters.
The two matters in question were referred to the first respondent interms of Section 3 of the Industrial Disputes Act, 1950, as amended byAct No. 25 of 1956, the relevant provision of which reads as follows *—
“ Where the Commissioner is satisfied that an industrial disputeexists. … he may—
….
….
….
if the parties to the industrial dispute or their representativesconsent, refer that dispute, by an order in writing, for settlement byarbitration to an arbitrator nominated jointly by such parties orrepresentatives, or, in the absence of such nomination, to the DistrictJudge of the district in which that dispute exists or is apprehended. **
It must be noted that there is not under paragraph (d) any compulsoryreference to the District Judge. It is only with the consent of partiesthat a dispute is referred for arbitration, and the parties, by giving suchconsent and by omitting jointly to nominate some arbitrator, virtuallyelect that the District Judge be arbitrator. They also consent impliedlyto the mairing by the District Judge of an award which will be binding interms of Section 19. The objections urged against the jurisdiction orpower of the District Judge to make a new award have to be consideredin the light of the fact that such a reference is made only with the sonsenfcof both parties. An existing award is, in terms of Section 19 of the Act,binding on the parties for the purposes of the Act. I will assume(without so deciding) that Section 19 prevents a party to an existingaward from seeking to obtain, through the machinery of the Act, analteration of a term of an existing award. But even if that be so, theRespondent Union in the first instance merely put forward two demandswhich the petitioner might at its option have granted. The Act does notpreclude the alteration of the terms of an award by mutual voluntary
;204v5-.o■' DharniaTatne v. Inspector of Police, Motion
agreement, and in presenting the two new demands the RespondentUnion did not act in contravention of Section 19. The petitioner did.not of course agree ;to grant the new demands. But neither did thepetitioner deny that.the machinery of the Act was available with respectto the new demands. Instead the petitioner consented that the disputewhich arose with respect to those demands should be referred to theDistrict Judge.
1 It seems to me therefore that neither party can now contend that theCommissioner had no power to make the reference; the District Judgehad necessarily to regard the reference as one validly made under the“Act and accordingly to decide whether or not the two new demandsShould be granted. In contending that the District Judge has no'jurisdiction to make an “ affirmative ” award with respect to the newdemands, the petitioner in reality denies that the machinery of the Act isApplicable to the present dispute. But the joint consent to the reference'has carried the matter beyond the stage at which such a denial mightproperly have been made.
There is another aspect of the matter which merits examination.-Was the dispute, which the petitioner agreed to refer to the DistrictJudge, a dispute which raised or involved the question of law whetherthe Act prohibited the making of a new award granting two new “ super-annuation ” privileges ? If so, the petitioner, in consenting to thereference, consented also to be bound by the award of the District Jndgeon that question of law, and cannot challenge that award on the groundthat the question in dispute was wrongly decided. A similar answerhas to be given to Mr. Perera’s argument that a party may urge before thearbitrator legal reasons (in addition to or instead of factual reasons)-why any particular privilege should not be granted in an award. The■arbitrator has the power to reject any reasons as unsound, whether they-be legal or factual.
I therefore concur in the order proposed by My Lord, the Chief Justice.
Application dismissed.