COMMERCIAL BANKS ASSOCIATION, Petitioner, and W. THALGODAPITIYA (District Judg

057-NLR-NLR-V-60-COMMERCIAL-BANKS-ASSOCIATION-Petitioner-and-W.-THALGODAPITIYA-District-Judg.pdf


WHEBASOORIYA, J.—Commercial Banks Association v. Thalgodapitiya241
1958Present: Weerasooriya, i.
COMMERCIAL BANKS ASSOCIATION, Petitioner, andW. THALGODAPITIYA (District Judge, Colombo) and 2 others,Respondents
S. G. 218—Application for a Writ of Certiorari
Industrial dispute—Reference for settlement by arbitration—Errors and omissions inaward—Power of arbitrator to correct them subsequently—Industrial DisputesAct No. 43 of 1950 (as amended by Acts 25 of 1956 and 62 of 1957), ss. 3 (1) (d),17 (2), IS (1), IS (2), 19, 21, 33 (I) (a), 34 (1), 34 (2)- Certiorari.
Where, iu an industrial dispute referred for settlement by arbitration undersection 3 (1) (d) of the Industrial Disputes Act, the arbitrator inadvertentlymakes obvious errors and omissions in his decisions, such errors and omissionsmay be corrected by the arbitrator if the award is referred to him for inter-pretation under section 34 (1) of the Act.
.^APPLICATION for a writ of certiorari on (1) Walter Thalgodapitiya,Esq., District Judge, Colombo, (2) Ceylon Bank Employees’ Union,and (3) the Commissioner of Labour. II. * * V.
II. V. Perera, Q.C., with 8. J. Kadirgamctr and W. T. P. Goonetilleke,for the petitioner.
No appearance for the 1st respondent.
(S'. Nadesan, Q.G., with J. C. Thurairatnam, for the 2nd respondent.
V. Tennekoon, Senior Crown Counsel, for the 3rd respondent.
Cur. adv. vult.
October 24, 1958. Weerasooriya, J.—
On the 11th April, 1956, the Commissioner of Labour (the thirdrespondent) in terms of section 3 (1) (d) of the Industrial Disputes Act,No. 43 of 1950, (hereinafter referred to as “ the Act ”), as amendedby Act No. 25 of 1956, submitted to the first respondent, who was thenthe District Judge of Colombo, for settlement by arbitration, an indus-trial dispute relating to superannuation schemes. The parties to thedispute yyere described in the reference as the Commercial Banks’Association (the petitioner) and the Ceylon Bank Clerks’ Union. It
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242WEEB ASOORIY A, J.—Commercial Banks Association v. ThcdgodapUiya
would appear, however, that although membership in the Ceylon BankClerks’ Union was originally confined to bank clerks only, from 1954other categories of bank employees too were admitted as membersand in consequence the designation of the Union was changed intothe Ceylon Bank Employees’ Union by a resolution passed at the annualgeneral meeting held on the 26th January, 1956. According to theaffidavit of its President, the Union under its new designation has beenregistered as a trade union in accordance with the provisions of theTrade Unions Ordinance (Cap. 116) and counts as its members suchbank employees as clerks, peons and “ minor staff ”, which expressionwould appear to comprise money testers, watchers, labourers and boys.The Ceylon Bank Employees’ Union is the second respondent in theseproceedings.
The dispute referred to the first respondent for arbitration was dealtwith by him in his award dated the 29th November, 1956, under theheadings (a) pension schemes, (ft) provident fund schemes and (e)death gratuities. He decided that the Banks should provide a pensionscheme and also a provident fund scheme on the lines indicated in theaward, but he rejected the claim of the 2nd respondent for the paymentof death gratuities as well. As regards the provident fund scheme,the date on which it should come into force was specified as the 1st April,1956. But the award is silent as to the date on which the pension schemeshould come into force. It would appear, however, that this omissionwas due to inadvertence on the first respondent’s part and that heintended that the pension scheme should also be operative from thedate (the 1st April, 1956) specified for the provident fund scheme.
Section 18 (1) of the Act provides that the award of an arbitratorshall be transmitted to the Commissioner who is then required to causeit to be published in the Gazette forthwith. Section 18 (2) providesthat the award shall come into force on the date of it or on such date,if any, as may be specified therein not being earlier than the date onwhich the industrial dispute .to which the award relates first arose.
Section 34 (1) of the Act (as amended by Act No. 62 of 1957) provides,inter alia, that if any question arises as to the interpretation of an awardmade by an arbitrator the Commissioner, or any' party, trade union,employer or workman bound by' the award may refer the question fordecision to such arbitrator, and the arbitrator is thereupon requiredto decide such question. Under section 34 (2) the decision on a referencemade under section 34 (1) shall be deemed to form part of and shallhave the same effect in all respects as the original award. After theaward of the first respondent had been transmitted to the third respondent,he in terms of section 34 referred it back to the first respondent forinterpretation of it in respect of the two questions—
whether the pension scheme set out in the award has effect from
the 1st April, 1946, and
who are the workmen to whom the award relates.
WEERASOORIYA, J.—Commercial Banks Association v. Thalgodupiliya243
By his further award dated the 7th April, 1958, the first respondentin deciding question (a) in the affirmative, stated that he had intendedthat the pension scheme should start from the same date as the providentfund scheme but had omitted to specify expressly in the original awai dthe operative date of the pension scheme. In regard to question (b)his decision was that the original award applies to all workers in theCeylon Bank Employees’ Union, it is in respect of these decisionsof the first respondent in the award dated the 7th April, 1958, that thepresent proceedings in the nature of an application for a writ of certiorarihave been initiated by the Commercial Banks’ Association on the footingthat the first respondent, in deciding the aforesaid questions in themanner in which he did, misconstrued section 34 and acted contraryto section 18 (2) of the Act. As the first respondent has set out in theaward the grounds for his decisions on the two questions submittedto him, it would appear to constitute a “ speaking ” order in the senseexplained in the well known case of R. v. Northumberland CompensationTribunal, Ex parte Shaw1, and a writ of certiorari would lie to quashany decision which is shown on the face of the award to be erroneousin law.
Mr. H. V. Perera for the petitioner submitted that since no date onwhich the pension scheme should come into force had been specifiedin the original award, section 18 (2) of the Act, which provides thatwhere no date is specified the date shall be the date of the award, mustbe given effect to. But what section 18 (2) deals with is the date onwhich the award shall come into force. The Act seems to draw adistinction between the aivard itself and the decisions which it is com-prised of—vide section 33, as amended by Act No. 62 of 1957. Paragraph
of section 33 (1) provides that an award may contain decisions asto wages and other conditions of service " including decisions thatany such wages and conditions shall be payable or applicable with effectfrom any specified date prior to the date of the award ”,
In the light of section 33 the original award dated the 29th November,1956, would appear to contain what may more correctly be describedas decisions made under paragraph (a) of sub-section (1) of that sectionrelating to the pension scheme, the provident fund scheme and the dateon which the provident fund scheme should come into force. On thisview it would be doubtful whether section 18 (2) has any applicationto these decisions. Unlike section 18 (2), it is not expressly providedin paragraph (a) of section 33 (1) that in the absence of a specified dateany decision relating to the payment of wages or other conditions ofservice shall take effect from the date of the award. But even if section18 (2) applies to such a decision, it is clear to me that it cannot applyin a case where, in respect of that decision, there has been an inadvertent
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244 WEERASOORIYA, J.—Commercial Banks Association v. Thalgodapitiya
omission to specify the date from which it shall take effect and despitethe omission the date which should have been specified may be gatheredwith reasonable certainty from the terms of the award,
The Act does not contain express provision for the correction ormodification of an award once it has been made. Such provision iscontained in section 14 of the Arbitration Ordinance (Cap. 83) andsections 687 and 688 of the Civil Procedure Code. But section 21 of theAct provides that neither the Arbitration Ordinance nor the provisionsof the Civil Procedure Code relating to arbitration shall apply toproceedings before an arbitrator under the Act. Notwithstanding theabsence of express provision in the Act for the correction or modificationof an award I am unable to take the view that an award once mademust remain unalterable even in respect of obvious errors and omissions.
It seems to me that an arbitrator to whom an award is referred forinterpretation raider section 34 (1) of the Act is entitled to correct sucherrors and omissions in the award in giving his decision on any question 'submitted to him.
In the present case, apart from the weight to be attached to the firstrespondent’s statement that he had intended that the pension schemeshould come into force on the same date as the provident fund scheme,the original award dated the 29th November, 1956, on the face of itdiscloses no ground at all for differentiating between the two schemesin regard to the date on which they should come into force. It is statedin the award that all the Commercial Banks were already operatingprovident fund schemes for the benefit of their employees, while onlyfive of them had pension schemes. One of the demands made by Counselon behalf of the second respondent was that all Banks should providepension schemes as well, and this demand was accepted by the firstrespondent as not unreasonable. No question was ever raised by eitherparty to the dispute that the pension scheme should come into forceon a later date than the provident fund scheme. I think that ananomalous position would have resulted if different dates had beenspecified in the award for the two schemes. In the circumstances therewas an obvious slip by the first respondent when he omitted to specifythe 1st April, 1956, as the date on which the pension fund scheme alsoshould come into force. In my opinion it was open to the first respondentto correct this .omission in giving his decision on the first question referred. to him for interpretation under section 34 (1) of the Act, and I am unableto hold that such decision was an erroneous one.
As for the decision of the first respondent on the other questionsubmitted to him, the correctness of it is challenged by the petitioneron the ground that the award of the 29th November, 1956, on the faceof it, relates to bank clerks only and that the first respondent was inerror in holding that it applies to “ all workers who are in the CeylonBank Employees' Union It is pointed out that throughout theaward the various types of superannuation benefits have been discussedby the first respondent only with reference to bank clerks, and that
WEERASOORIYA, J.—Commercial Banks Association v. Thalgodapitiya24 o
any doubt as regards the employees to whom the award relates isresolved by the opening sentence of the last paragraph of the awardwhich reads thus : “ I have set out above what seems to me to be anequitable superannuation scheme for the Bank Clerks .
While the contention of the petitioner is not without substance, itis clear that the parties to the dispute relating to superannuation schemeswhich was referred for arbitration to the first respondent were theCommercial Banks’ Association on the one side, and the Ceylon Bank.Clerks’ Union (now the Ceylon Bank Employees’ Union) on the other,the members of which, even then, consisted of different categoriesof employees such as clerks, peons and “minor staff”. On the firstday of the proceedings which took place on the reference to arbitrationMr. Nadesan, in opening the case for the Ceylon Bank Clerks’ Union,stated that the matter in dispute related to a request by bank employeesfor a scheme of pension, provident fund and gratuity. No objectionwas taken by Counsel for the petitioner to this statement on the groundthat the dispute concerned a smaller section of bank employees, namely,bank clerks. It seems to me that having regard to the terms of thereference such an objection would have been quite untenable. Theaward had, therefore, necessarily to deal with a dispute involving variouscategories of bank employees.
Section 17 (2) of the Act requires that reference shall be made in everyaward of an arbitrator to “ the parties and trade unions to which, andthe employers and workmen to whom, such award relates ”. Section 19of the Act provides that the award of an arbitrator for the time beingin force shall be binding on “ the parties, trade unions, employers andworkmen referred to in the award in accordance with the provisions ofsection 17 (2); and the terms of the award shall be implied terms in thecontract of employment between the employers and workmen boundby the award ”.
The award of the 29th November, 1956, sets out in paragraph onethe parties to the dispute as the Commercial Banks’ Association and theCeylon Bank Clerks’ Union, in my opinion paragraph one contains asufficient designation, in terms of section 17 (2), of the parties to whomthe award relates. The reference to the Ceylon Bank Clerks’ Unionmust be deemed to be a reference to the Ceylon Bank Employees’ Unionin view of the subsequent change of name. Neither the CommercialBanks’ Association nor the Ceylon Bank Employees’ Union has beenincorporated, and the virtual parties to whom the award relates are themembers thereof. The 1st respondent would appear, therefore, to havecome to a correct conclusion when he decided that the award applies to>all workers who are in the Ceylon Bank Employees’ Union.
The application fails and is dismissed with costs payable to the secondrespondent which I fix at Rs. 525.
Application dismissed.
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