Jayasena v. Sideek
1961Present : T. S. Fernando, J.G. H. L. JAYASENA, Appellant, and A. M. M. SIDEEK and two others,
S. C. 203 of 1961—M. C. Colombo, 35321/B
Industrial Court—Delegation oj its functions—Illegality—Award of Industrial Court—Right to challenge its validity at the stage of execution—Industrial DisputesAct, No. 43 of 1950, as amended by Act No. 62 of 1957, ss. 4, 22, 33 (2).
An Industrial Court cannot delegate to a third party its function of decidinga dispute which has been referred to it for settlement. «Where an award ismade in violation of this rule, any sum of money due upon it cannot be recoveredin a Magistrate’s Court in terms of section 33 (2) of the Industrial DisputesAct.
The award of an Industrial Court contained, inter alia, a direction the termsof which were as follows :—
“ We direct that all payments due under this award shall be made throughthe Commissioner of Labour to whom the manager of Messrs. Wahid Brothersshall submit a schedule of the amounts due to the various workers. Shouldany disagreements arise as regards the correct computation, the decision of theCommissioner of Labour or any ether officer nominated by him shall be final.”
Held, that the direction amounted to a delegation of the functions of theIndustrial Court rendering the award itself bad.
I*PPEAL from an order of the Magistrate’s Court, Colombo.
No appearance for the petitioner-appellant.
B. Vannitamby, for the respondents.
Cur. adv. vuU.
T. S. FERNANDO, J.—Jayasena v. Sideek
November 23, 1961. T. S. Fernando. J.—
The petitioner-appellant sought an order from the Magistrate’s Court(in terms of section 33 (2) of the Industrial Disputes Act, No. 43 of 1950,as amended by section 15 of the Industrial Disputes (Amendment) Act,No. 62 of 1957) directing the respondents to pay to him a sum ofRs. 1,130*54, money which he claimed was due to him from them uponan award of an Industrial Court, and, if not so paid by the respondents,directing that the amount be recovered in like manner as a fine imposedby the Court. The application of the petitioner was opposed by therespondents on two grounds, one of which was that the award of theIndustrial Court was a nullity in that the Court had delegated the functionof deciding the dispute between the parties to a third party. The learnedMagistrate held with the respondents on this ground, and I am of opinionthat he was right in so doing.
The award in this matter came to be made consequent upon an Order- made by the Minister under section 4 of Act No. 43 of 1950 referringfor settlement by an Industrial Court a dispute which had arisen betweenthe Ceylon Press Workers’ Union and W. M. A. Wahid & Brothers.An Industrial Court consisting of three persons was accordingly constitutedin terms of section 22 of the Act, and that Court made an award onJanuary 19, 1959. This award contained, inter alia, a direction whichhas been attacked by the respondents as amounting to a delegation ofthe functions of the Court rendering the award itself bad. The termsof the direction aye reproduced below :—
“We direct that all payments due under this award shall be madethrough the Commissioner of Labour to whom the manager of Messrs.Wahid Brothers shall submit a schedule of the amounts due to thevarious workers. Should any disagreements arise as regards the correctcomputation, the decision of the Commissioner of Labour or any otherofficer nominated by him shall be final
The complaint of the respondents is that the other terms of the awardwere such that disagreements were bound to arise as regards the correctcomputation, and that such disagreements did in fact arise as a result ofcomputations having been made in the Department of the Comjnissionerof Labour, and that in the result the award has become in fact and inlaw the award not of the Industrial Court but- of the Labour Commissioner’sDepartment. They point also to the circumstance that the award leftthe decision not only to a third party, viz. the Commissioner of Labour,but made it possible even for any nominee of the Commissioner to makethe award in this case. The functions of an Industrial Court under the
T. S. FERNANDO, J.—Jayasena v. Sideek
Act are undoubtedly in the nature of judicial functions, and judicialfunctions cannot normally be delegated—see per Lord Somervell ofHarrow in Vine v. National Dock Labour Board.1 The English Courtshave consistently refused to enforce awards which are bad as being madeby persons to whom the power to make the award could not have beendelegated.
In Pedley v. Goddard 2, Lord Kenyon C.J., in holding that an award ofarbitrators was not final, stated :—“ The case that most resembles thisis that cited from 3 Lev. 18 : but that is like the common case of leavingcosts to be taxed by the officer of the Court, which does not vitiate theaward. But here the arbitrators, instead of determining the points indispute between the parties, have left one sum in dispute to be decidedby the person who of all others was the least qualified to decide, thedefendant himself ”. Then again, in Tomlin v. The Mayor of Fordwich 3,the Court in refusing to enforce an award upheld the principle that anarbitrator cannot delegate his power. In a local case, Ekanayake v.Prince of Wales Co-operative Society Ltd*, Windham J. (with whomNagalingam J. agreed) held that where application is made to executean award which is invalid for want of j urisdiction it is open to the executingcourt to refuse to execute it. Said Windham J., quoting from a judgmentin a case decided in India, " it is common ground that the general ruleis that an executing court cannot go behind the decree. It must takethe decree as it is and must proceed to execute it. To this general rule,however, there is a well established exception that if there was a lack ofinherent jurisdiction in the court which had passed the decree and forsome other reasons, the decree is a nullity, the executing court mustrefuse to execute it. ”
I am clearly of opinion that the Industrial Court had no power todelegate to anyone else its function of settling the dispute. I need nothere consider what might have been the position if the Industrial Courthad enlisted the assistance of the Commissioner of Labour or of theDepartment in the computation and then, with the figures before it, haditself reached a decision on the amount to be awarded and thereaftermade an award.
I would dismiss the appeal.
1 (1957) A. C. at 512.
*[1796) 7 Term Rep. 73 at 77.101 Eng. Rep. 861 at 863.
* [1836) 5 Ad. dk EU. 147 at 152. Ill Eng. Rep. 1121 at 1123.4 [1949) 50 N. L. R. at 297.
G. H. L. JAYASENA, Appellant, and A. M. M. SIDEEK and two others, Respondents