028-SLLR-SLLR-1998-1-KALAMAZOO-INDUSTRIES-LTD.-AND-OTHERS-v.-MINISTER-OF-LABOUR-VOCAT.pdf
CA
Kalamazoo Industries Ltd. and Others v. Minister of Labour &
Vocational Training and Others
235
KALAMAZOO INDUSTRIES LTD. AND OTHERS
v.MINISTER OF LABOUR & VOCATIONALTRAINING AND OTHERS
COURT OF APPEALJAYASURIYA, J.
C.A. APPLICATION NO. 60/93ARBITRATION INQUIRIES2160, 2161, 2162, 216323RD, 30TH, MAY 1997.
Writs of Certiorari and Prohibition – Arbitration Award – Sections 17 (1), 40 (1)(m)of the Industrial Disputes Act
The dispute was V/hether the demand of the Eksath Kamkaru Samitiya an increaseof Rs. 1,000 on the present salary paid to each of its members employed inthe four respondent companies is justified and to what relief each of them isentitled’. All parties to the dispute consented at the outset of the arbitration inquiiythat the dispute is common to all four companies and the inquiry into the claimfor all demands be consolidated and amalgamated. Both the applicant trade unionand the respondent companies were given time to tender their written submissionswith the documents produced orr their behalf. The applicant handed in the writtensubmissions with the documents but the four respondent companies failed tosubmit their written submissions and documents until the time that the award wasdrawn up and signed by the arbitrator (3rd respondent) marked documents reliedon by the four respondent companies were not tendered.
In the absence of adequate evidence beyond stating that the increase claimedwas beyond the financial capability of the companies the arbitrator stating he wouldconsider the matter on the basis of equity and human grounds and decided onan increase of Rs. 250 per worker.
Held:
Although section 17 (1) of the Industrial Disputes Act stipulates that theabitrator shall make all inquiries into the dispute, hear evidence andthereafter make his award, no duty is cast on him to invade private officesof litigants and take forcible possession of documents. It is not now opento the petitioners to annex the documents R1 to R35 and on their strengthassail and impugn the award.
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A dispute between persons standing in the relationship of employer andemployee need not exist at the point of reference provided the disputehas arisen while the earlier contract of employment existed. It is notnecessary that the contractual relationship should exist at the commence-ment of the arbitration or at the date of reference by the Minister.
The fourth respondent trade union had gone out on a strike and the servicesof the workmen had been terminated on the ground of vacation of postbut the strike was not unlawful. Notice of the strike had been given orallyand in writing.
Per Jayasuriya, J.:
"The right to strike has been recognized by necessary implication in thelabour and industrial legislation in Sri Lanka and there are numerousexpress statutory provisions providing for the regulation of strikes. It is thusa recognized weapon of workmen to be resorted to by them for assertingtheir bargaining power and promoting their collective demands upon anunwilling employer*.
The physical and the mental element should co-exist for there to be avacation of post in industrial law. Just because the workmen failed to reportfor work in prosecution of the strike, it is unreasonable and unrealistic insuch circumstances to impute to them an intention of abandoning theiremployment. The concept of vacation of post cannot be invoked at all andthe workmen ought to be looked upon as members of the trade unionwho were employees in the four petitioner companies.
The rights of parties must be ascertained and determined as at the dateof the institution of the action or as at the date of reference for arbitration.
There is no unlawfulness and/or illegality in the award and it is lawful.
Cases referred to:
Hadley v. Clarke 8 Times Reports 259, 267.
Eager v. Sumivall 17 Chancery Division 115, 121.
Rex v. National Arbitration Tribunal (1947) 2 All ER 693.
Simca Garments Ltd. v. Ceylon Mercantile Industrial and General Workers'Union CA Application No. 735/96 – CA Minutes of 13.11.96.
Perera v. Standard Chartered Bank and C. Carthigeson – (1995) 1 SriLR 73.
Stanley Perera v. Yusuf Shah 65 NLR 193, 194.
Nelson de Silva v. Sri Lanka State Engineering Corporation (1996) 2 SriLR 342.
Silva v. Fernando 15 NLR 499 (PC)
Mohamed v. Meera Saibo 22 NLR 268.
Bartleet v. Marikkar 40 NLR 350.
CA Kalamazoo Industries Ltd. and Others v. Minister of Labour &
Vocational Training and Others (Jayasuriya, J.)237
n ' *
APPLICATION for Writ of Certiorari and Prohibition in respect of arbitrator's award.
Faiz Mustapha PC with V. C. Motilal Nehru PC. S. Mahenthiran andK. Balakrishnan for petitioners.
S. Sinnetamby with Nimal Muttukumarana for 4th respondent
Cur. adv. vult
August 01, 1997.
JAYASURIYA, J.
The petitioners are seeking an order from this court, upon theirapplication for a writ of certiorari and prohibition, quashing the awardmade by the third respondent which has been produced marked 'K'.This award has been published in the Gazette of the DemocraticSocialist Republic of Sri Lanka (Extraordinary) bearing No. 718/14dated 10th June, 1992. The Minister of Labour had made a referenceon 24.11.89 referring a dispute that had arisen between the petitionersand the fourth respondent for settlement by arbitration to the thirdrespondent. The Commissioner of Labour has specified the mattersin dispute in his statement dated 24.11.89 in relation to the claimof the fourth respondent trade union against the four petitionercompanies as follows: "whether the demand of Eksath KamkaruSamitiya of 51/17, St. Michael's Road, Colombo 3, for an increaseof Rs. 1,000 on the present salary paid to each of its membersemployed in the four respondent companies (which are enumeratedin the caption to the award) is justified and to what relief each ofthem is entitled". All parties to the dispute consented at the outsetof the arbitration inquiry that the dispute is common to all fourcompanies and the inquiry into the claim for all demands beconsolidated and amalgamated. I emphasize and stress this factparticularly in view of certain contentions which are raised in thepresent petition of the petitioners. All parties to the dispute filedstatements of their cases and the inquiry commenced before the thirdrespondent on 12.2.90 and was concluded on 17.12.91. Both theapplicant trade union and the respondent companies were then giventime to tender their written submissions with the documents producedon their behalf. The applicant union, accordingly, handed over thewritten submissions with the marked documents to the third respond-ent on the 27th of January, 1992. The petitioners, who were the four
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respondent companies in the arbitration proceedings, had failed andomitted to tender their written submissions and the marked documentseven up to the 4th of May, 1992, which is the date of the award.The third respondent in his order dated 4th of May, 1992, specificallystates as follows: "The written submissions with all the documentsmarked on behalf of the four respondent companies have still notreached me". Thus, there has been culpable remissness and unpar-donable failure on the part of the petitioners to tender their writtensubmissions and the marked documents to the third respondentarbitrator upto the date that the award was drawn up and signed bythe arbitrator. Documents which are marked at an arbitration inquiry,after being initialled by the arbitrator, are handed back to the counselappearing for the parties for the purpose of preparing the writtensubmissions and on condition that they are to be tendered to theArbitrator with a list, together with the written submission, on the dayfixed by the arbitrator. The aforesaid remissness and omission totender the marked documents on the part of the petitioners was soughtto be overcome by learned President’s counsel appearing for thepetitioners by making a feeble reference to section 17 (1) of theIndustrial Disputes Act. He contended that notwithstanding such lapse,the arbitrator was bound by the aforesaid provision to make all suchinquiries into the dispute: "Shall make such inquiries into this disputeas he may consider necessary, hear evidence as may be tenderedby the party to the dispute and thereafter make such award as mayappear to him just and equitable". The powers conferred by thisprovision do not extend to the arbitrator invading the offices of partylitigants and tracing documents which are not tendered to him. Thepowers conferred by section 17 (1) refer to making such inquiries intothe dispute as he may consider necessary upto the point of terminationof the inquiry. It does not contemplate any authority to invade theprivate offices of party litigants and taking forcible possession ofmarked documents which are not tendered to the arbitrator. It mustbe further stressed that an arbitrator is required by law to give priorityto the proceedings for the settlement of any dispute that is referredto him for settlement by arbitration and a labour tribunal presidentwho is appointed an arbitrator is mandatorily required to give suchpriority to arbitration proceedings over other matters in his role. Wheremarked documents are wrongfully not tendered to an arbitrator toprepare his award, the party litigant who commits such a default mustbear the full consequences of his remissness. The law does notcompel an arbitrator to do what is humanly and physically impossible.
CA Kalamazoo Industries Ud. and Others v. Minister of Labour &
Vocational Training and Others (Jayasuriya, J.)239
Vide the maxim lex non cogit ad impossibilia. The law does not compela man to do that which he cannot possibly perform.
Even where the (aw creates a duty or charge and the party isdisabled to perform, without any default in him and has no remedyover, then the law will in general excuse him. Vide dicta of JusticeLawrence in the case of Hadley v. Clarke*’’ at 267 quoting the decisionin Paradine v. Jane. Impotentia excusat legem. Also, note the dictaof Jessel Master of Rolls in Eager v. Sumivall,®. But in this instancethere was no such duty or charge on the third respondent arbitrator.
In the circumstances, it is not open to the petitioners in the presentapplication to annex documents R1 to R35 and on the strength ofthe contents of those documents to impugn and assail the award ofthe arbitrator when those aforesaid documents were never tenderedto the arbitrator for the preparation of his award. The arbitrator's awardhas to be judicially reviewed having regard to the oral testimony andthe documentary evidence that were tendered to him before heprepared his award.
The third respondent arbitrator, having considered the oral anddocumentary evidence, which were placed before him, has held thathe is of the view that "the claim and demand for a wage increaseby the workmen in 1988 was reasonable and justifiable but the claimof wage increase has to be considered on the ground whether suchincrease in wages all round among the workmen will affect the financialstability of the companies adversely. In fact, the Chairman and ManagingDirector of the companies has stated in his evidence that if aRs. 1,000 increase in wages is granted to the workmen, he had hisdoubts whether the companies will be able to survive. But he did notexpand on this matter further and state the quantum of wage increasethat the companies will be able to offer so that the financial stabilitywill be maintained. If such a statement was made on behalf of thefour companies at the inquiry before me, the decision on the appli-cation for salary increase by the workman referred to me for arbitrationwould have been considerably easier. In the absence of any suchcriteria regarding the quantum of the increase in salary to be awardee,
I have to decide to consider this matter on the basis of equity andhuman grounds. It is my view that the wage paid to the workmenin the respondent companies is low and needs revising. A basic wage
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varying from Rs. 160 to Rs. 378 is, in my opinion, hardly an incomefor an individual who could live against the rising cost of living forsometime here. Therefore, I feel that some kind of relief in the wayof an increase in wages should be granted. I have been informedthat a wage increase of Rs. 500 is under consideration to the workersin the printing industry by the Wages Board. Having considered allthese facts carefully a salary increase of Rs. 250 on the presentsalary paid to each of the workers with effect from 24.11.89 employedin the four companies, to wit, Ceylon Printers Ltd. (ArbitrationNo. 2163), Paragon Ceylon Ltd. (Arbitration No. 2162), KalamazooIndustries Ltd. (Arbitration No. 2160) and Dataset Equipment Ltd.(Arbitration No. 2161) is justified and equitable. The workmen in thesaid four companies are entitled to the reliefs as stated above. Thispayment should be made within 45 days of the date on which thisaward is published in the Gazette. I make award accordingly".
The petitioners in their petition and through the contentions of theirsenior counsel have attempted to impugn this award on the groundthat the evidence led at the inquiry disclosed the fact that atthe commencement of the arbitration there existed no contractualrelationship between the workmen and the companies and the work-men's services had been terminated on the basis of vacation of postsand there existed no master and servant relationship which was asine qua non for an award to be made in their favour. It is complainedon behalf of the petitioners that no ruling had been given by thearbitrator on this fundamental issue and that the arbitrator had chosento ignore this vital and fundamental point. This court is of theconsidered view that the arbitrator has very rightly and deliberatelyomitted to give a ruling on this issue as it is a wholly untenable andunsustainable issue, having regard to the law, Lord Goddard, dealingwith such an issue in Rex v. National Arbitration Tribunal(3) succinctlyremarked that "A dispute that has arisen while the contract ofemployment existed could be referred for settlement by arbitration eventhough the contract had been later terminated and whether suchtermination had been initiated or brought about by the employer orby the workmen". Thus, a dispute between those persons standingin the relationship of employer and employee need not exist at thepoint of reference provided the dispute has arisen while the earliercontract of employment existed. This dictum pronounced by LordGoddard was cited with approval and applied in Simca Garments Ltd.v. Ceylon Mercantile Industrial and General Workers' Unionf4)
CA Kalamazoo Industries Ud. and Others v. Minister of Labour &
Vocational Training and Others (Jayasuriya, J.)241
and by Justice Amerasinghe in the Supreme Court in S. B. Pererav. Standard Chartered Bank and C. Carthigesonfi which SupremeCourt judgment overruled the Court of Appeal judgment pronouncedby Justice Grero in C.A. 456/92. In the circumstances, the aforesaidpoint which was strenuously urged at the hearing of this applicationis without substance and is wholly unsustainable. The claim anddemand for an increase in the monthly salaries of the workmen byRs. 1,000 on account of the rising cost of living was preferred bythe fourth respondent by its letter dated 12.3.1998 (vide documentmarked 'O' at page 26 File marked D.) This demand led to the presentdispute and 'It' arose at a time when the contractual relationship ofemployer and employee existed between the members of the fourthrespondent trade union and the four petitioners.
Labouring under a misconception as to the law and grievouslyerring in regard to the relevant and applicable point of time, learnedPresident's counsel who appeared for the petitioners contended thatat the commencement of the arbitration there existed no contractualrelationship between the workmen and the companies. He stressedthat both at the date of reference by the Minister and of the statementof the second respondent of the matter in dispute that there existedno such contractual relationship of master and servant and there wasno warrant, right and authority for an award to be made. In termsof the aforesaid judgment of Lord Goddard, I hold that this is a whollyuntenable and unsustainable contention in law. The aforesaid lettermarked "D" dated 12th March, 1988, clearly discloses that when thedispute arose, the relationship of employer and employee existedbetween the four petitioner companies and the members of the fourthrespondent trade union.
Learned President's counsel contended that at the arbitrationinquiry, the fourth respondent trade union led the evidence of workman
S.N. Donald Dias who was previously employed by the third petitionercompany and the evidence of Sarath llangakoon who was previouslyemployed by the third petitioner company and no evidence was ledin respect of the salaries and wages of the other workmen employedby the first and second petitioner companies and on this groundalone the award is liable to be struck down. I hold that this contentiontoo is untenable and unsustainable for, at the inquiry, SelvamKanagaratne, the Chairman and Managing Director of Ceylon Printers
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Group of Companies gave evidence on behalf of the petitionercompanies and produced in the course of his evidence the CollectiveAgreement No. 3J of 1971 which was marked as R2 (extract fromthe Government Gazette No. 14,975 dated 10th September, 1971)relating to the printing trade and the Collective Agreement No. 3 whichwas marked as R3 (Government Gazette – General, Part 1: Section1 dated 10th September, 1971) relating to the engineering trade andthe second schedule to both these collective agreements sets Out thescales of consolidated monthly wages for all categories of workmenemployed by the four petitioner companies. It was his evidence thatthe workmen employed, who were members of the fourth respondenttrade union, were in receipt of the monthly wages set out in the secondschedule to the said collective agreements. At the argument, whenthis court was pleased to refer learned President's counsel to theprovisions of the aforesaid collective agreements, he irresponsiblyargued that a collective agreement would set out only articles andwould not contain scales of consolidated monthly wages. Contentsof documents marked R2 (c) and the contents of the second scheduleto R3 completely belie the aforesaid assertions of learned seniorcounsel. In the circumstances, the feeble attempt made by learnedPresident's counsel to strike down the award on this basis falls tothe ground and is unsustainable.
A further contention was advanced that whilst arbitration proceed-ings bearing No. A 1996 was pending, the Minister of Labour hadno jurisdiction, right and authority to refer for settlement by arbitrationthe instant reference to the third respondent and that the secondrespondent Commissioner of Labour had no right and authority to drawup a statement of the matters in dispute and issue such a statementto the third respondent. This contention is equally untenable andunsustainable on a consideration of the contents of the mattersreferred to arbitration in arbitration inquiry No. A 1996 and in theinstant reference to the third respondent. It is manifest that the tworeferences are in respect of two distinct and separate matters. Thestatement of one of the matters in dispute drawn up by G. Weerakoon,Commissioner of Labour, dated 12th September, 1983, which hasbeen marked as "C" in the file marked "A" is as follows:
CA Kalamazoo Industries Ltd. and Others v. Minister of Labour &
Vocational Training and Others (Jayasuriya, J.)243
“Whether the demand of Eksath Kamkaru Samitiya made onbehalf of its members employed by the aforesaid employers isjustified and to what relief the said members of the union areentitled under (1) consolidation of salaries. (2) The monthly salarynow paid to each member of the union be increased by an amountconstituting the non-recurring cost or living gratuity calculated ona monthly basis as opposed to a yearly formula".
Thus, the reference of the matter in dispute in arbitration inquiiyNo. A 1996 is related to the consolidation of the monthly salary withthe monthly non-recurring cost of living gratuity, whereas the instantreference was in regard to the dispute relating to the demand of thefourth respondent union on behalf of its members for an increase ofRs. 1,000 per month on the present monthly salary paid to each ofits members. The Court of Appeal, by its judgment in C.A. 45/89 (Courtof Appeal minutes dated 6.12.89) held that the strike which was thesubject matter of that proceeding was legal and that did not violatesection 40 (1) (m) of the Industrial Disputes Act, as the strike inquestion was not in the same industry in which the dispute had beenreferred to arbitration in Arbitration Inquiry No. A 1996/83 in 1983(1995) and was still pending. The petitioner's application to the SupremeCourt for special leave to appeal (S.C. 27/90) against the judgmentof the Court of Appeal in the aforesaid application was also dismissedby the Supreme Court. In the circumstances, the matters averred inparagraph 36 of the petition of the petitioners are misconceived andbereft of any substance.
Learned counsel contended that the strike launched by the fourthrespondent trade union on behalf of its members with effect from25.3.88 was without lawful notice; in breach of and in repudiation ofthe contract of employment; illegal and in violation of section 40 (1)(m)of the Industrial Disputes Act, as the strike was commenced andcontinued after the dispute was referred to arbitration and was pending(numbered A 1996) but before an award could be made. I havealready adverted to the fact that there was no violation of section40 (1) (m) of the Industrial Disputes Act, as the strike was in connectionwith a dispute relating to an increase in monthly salary of Rs. 1,000for each workman, whereas the dispute referred to arbitration andwhich was pending in arbitration inquiry No. A1996 related to a disputerevolving on the consolidation of salaries with the non-recurring costof living gratuity. Learned counsel argued that by registered letterdated 14.4.88 (which has been marked "F“ in the file marked "D” the
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petitioner companies who were adversely affected by the lighteningwild-cat strike informed the workmen who failed to report for workfrom the 20th of April, 1988, that their contracts of employment wouldcease. Learned counsel reiterating his submissions submitted that themembers of the fourth respondent trade union had gone out on awild-cat strike and their services were terminated on the basis ofvacation of post and on the ground of vacation of post their contractsof employment had been terminated by letters dated 14.4.88. Thiscontention is also reflected in paragraphs 2, 31, 22 and 20 of thepetition of the petitioners. On the aforesaid premises, learned seniorcounsel for the petitioners contended that on the workmen decidingon 23.7.88 to call off the strike and when they reported for work on26.7.88, these ex-workers were informed clearly that they had casedto be employees of the petitioners in April, 1988.1 propose to analyseand evaluate the aforesaid submissions of learned counsel for thepetitioners. Was the strike commenced without lawful and sufficientnotice as contended for on behalf of the petitioners? A pointedreference was made to a letter written by the fourth respondent tradeunion dated the 23rd of March, 1988, which has been marked as'E1. In that letter, the General Secretary of the fourth respondent tradeunion states thus: “We therefore inform you, as our representativeshave already informed you, members employed by Ceylon PrintersLtd., Paragon Ceylon Ltd., and Kalamazoo Industries Ltd., will be onstrike from the 25th of March, 1988, until you grant our demands".There is a reference in the said document marked 'E' that therepresentatives of the fourth respondent trade union had alreadyinformed the management antecedently that the strike would belaunched from the 25th of March, 1988. In the statement of objectionsdated 16th of March, 1993, filed on behalf of the fourth respondenttrade union, it has been specifically pleaded thus: "However, underthe circumstances adequate notice of the strike was given orally aswell as in writing". The veracity of this averment and plea has notbeen impugned or challenged by a counter-affidavit and in thecircumstances this court has to accept the assertion that prior oraland adequate notice of the strike to be held on 25.3.88 had beengiven to the petitioners by the fourth respondent trade union.
Is the strike launched on the 25th March, 1988, by the membersof the fourth respondent trade union unlawful as contended for onbehalf of the petitioners? The right to strike has been recognised bynecessary implication in the Labour and Industrial legislation in SriLanka and there are numerous express statutory provisions providing
CA Kalamazoo .Industries Ud. and Others v. Minister of Labour &
Vocational Training and Others (Jayasuriya, J.)245
for the regulation of strikes. It is thus a recognised weapon of workmento be resorted to by them for asserting their bargaining power andpromoting their collective demands upon an unwilling employer. Videthe judgment in Stanley Perera v. Yusuf Shah,<6lat 194 where ChiefJustice Basnayake reproduces a part of the award of the arbitrator,Mr. P. O. Fernando, in the industrial dispute between United Engi-neering Workers* Union and Taos Ltd. The arbitrator after reviewinga series of Indian decisions observes that a right to strike is afundamental right in that award. However, I would prefer to refer tothe right to strike as a basic right conferred on workmen for theadvancement and promotion of their collective demands and in theassertion of their bargaining powers with the employer. In the circum-stances if the workmen in question exercised their basic right to launcha strike with a view to obtaining an increase in their monthly wageson account of the rising cost of living and in pursuance of that strikekept away from work, can it be reasonably and legitimately contendedthat they acted with an intention to abandon their employment? Onthe attendant circumstances relating to the keeping away from work,after having launched a strike with effect from 25th March, 1988, couldany court or tribunal hold that there was a voluntary and intentionalvacation of post on the part of the workmen in question? It is tritelaw that physical and the mental element should co-exist for thereto be a vacation of post in industrial law. Just because the workmenfailed to report for work in prosecution of the strike, it is unreasonableand unrealistic in such circumstances to impute to them an intentionof abandoning their employment It is logical and realistic to infer insuch circumstances that they kept away from work with the intentionof successfully prosecuting the strike and with the intention of obtainingtheir demands for an increase in their monthly wages. Vide in thisconnection for a review of the legal principles and a discussion ofSri Lankan decisions of the concept of vacation of post – the decisionin W. Nelson G. de Silva v. Sri Lanka State Engineering Corporationm.On an application of the principle enumerated above, I hold that thecontention of learned counsel that the services of the workmen wereterminated on the basis of vacation of post in terms of the lettersdated 14.4.88 and that their contracts of employment had ceasedon vacation of post and that the workmen ceased to be employeesof the petitioners in April, 1988, is wholly misconceived and untenable.Even the contents of this letter do not specifically state that "thecontracts of employment of the workmen had ceased0.
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Blit its contents set out, "You have wilfully kept away from work witheffect from 25th March, 1988, without leave or permission and youhave failed to report for work thereafter to date. Your conduct isunlawful, illegal, you have repudiated your duties and obligations underthis contract of employment… we have no alternative but to replaceyou if our industry is to survive. You are accordingly hereby advisedthat unless you offer yourselves for employment and commence workby 20th of April, 1988, we shall take all such steps as are necessaryto continue our industries". There is no reference to a termination ofemployment by vacation of post or that the contracts of employmentof the workmen had ceased. Thus, the basis for the averments inthe petition that the fourth respondent trade union represented work-men "who were earlier in the employment of the petitioners and whohave vacated their respective posts… contracts of employment havebeen terminated in terms of letters of 14.4.88 … when workers cameto the petitioner company on 26.7.88 and they were told that theyceased to be employees in April, 1988, that the purported referenceis bad in that there was no contractual relationship of employmentbetween the petitioners and the fourth respondent members on therelevant dates" are all untenable and unsustainable averments. Learnedcounsel for the petitioners objected to the use of the expression“employed" appearing in the statement of the matters in dispute asframed by the Commissioner of Labour. His contention was to theeffect that the increase of Rs. 1,000 on the present salary paid toeach of the members of the trade union employed in the four petitionercompanies was the adoption of an unrealistic and non-existent stateof relationship. He strenuously argued that the workmen were nolonger employed in the four petitioner companies relying wholly onthe concept of vacation of post and on the strength of the letters dated14.4.88. Inasmuch as no imputation of an intent to abandon theiremployment could factually and realistically be attributed to the workmenin question, the concept of vacation of post cannot be invoked at allin the attendant circumstances of this arbitration inquiry and theseworkmen ought to be looked upon as members of the trade unionwho were employed in the four petitioner companies.
Likewise, in launching the aforesaid strike, it could not be reason-ably and realistically asserted that the workmen in question had actedin breach of or in repudiation of the contract of employment and inviolation of the provisions of the collective agreement. It wascontended that as the collective agreement was in operation and
CA Kalamazoo Industries Ud. and Others v. Minster of Labour &
Vocational Training and Others (Jayasuriya, J.)247
its provisions were applicable to the parties that the arbitrator hadno jurisdiction to proceed with the arbitration inquiry. On the sameground the vires of the arbitration proceedings in arbitration inquiryA1996 were challenged before the arbitrator, Mr. H. C. Gunawardena.Mr. H. C. Gunawardena pronounced his order on the aforesaid pointof law raised before him and stated, inter alia: "according to myinterpretation of the wording, the union is not bound by any form ofagreement and it is at liberty to request for any benefits relating tothe items in the clauses mentioned in this order and for any otherbenefits it may consider warranted. The question of any repudiationdoes not come in. In fact, I would go to the extent of even saying,there is no provision for any repudiation under section 9 where theunion is concerned, since the union is not a party to any agreement.I hold that the Minister is, in law, justified in referring this disputeto arbitration under the powers vested in him by section 4 (1) of theIndustrial Disputes Act. The arbitration will consequently be proceededwith". Vide document marked R15. Vide also the Court of Appealjudgment in C.A. Application No. 1485/83, Industrial Court ArbitrationNo. A 1966/83 pronounced by Justice Sarath Silva.
It was further contended that the provisions of the collectiveagreements marked R2 and R3 and the extension of the aforesaidcollective agreement to the printing and engineering industries by theHon. Minister of Labour by Gazette Notification (Ceylon GovernmentGazette Extraordinary No. 14995/8 dated 1.2.72) marked as R4, stoodin the way of the workmen's claim for a salary increase of Rs. 1,000per month and the making of a lawful reference of such dispute toarbitration by the Minister of Labour. This contention, which wasfounded on the extension of the aforesaid collective agreements tothe printing and engineering industries does not bear any furtherexamination or consideration in view of the judgments pronounced bythe Court of Appeal in C.A. Application No. 1485/83, Industrial CourtArbitration No. A 1996/83 and the Supreme Court judgment inS.C. Appeal No. 31/88. In the Court of Appeal judgment, Justice SarathSilva held that the aforesaid extension order made by the Ministerof Labour related to only certain portions of the collective agreementand that such a selective extension was invalid in law and thereforecannot bar the subsequent reference to arbitration. Justice Sarath Silvaobserved thus: "As the Minister is not empowered to make a selectiveextension of only certain terms and conditions of the collectiveagreement that is in force, as has been done in this instance . . .
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For the reasons stated above, the petitioner cannot rely on theextension order of the Minister to challenge the validity of subsequentreference to arbitration made in terms of section 4 (1)". In the SupremeCourt judgment, Justice Mark Fernando upheld the judgment of JusticeSarath Silva in the Court of Appeal and remarked thus: "I thereforehold that the extension order made by the Minister is bad. That thedoctrine of severability cannot be applied. The objection to thereference by the Minister and to the jurisdiction of the arbitrator basedon the extension order fails". These judgments pronounced betweenthe present petitioners and the present fourth respondent trade unionconclude the petitioners and the petitioners are prevented from raisingthe same issue by the doctrine of estoppel by record.
In conclusion, learned counsel for the petitioners submitted thatthe third respondent, in his award dated 4th of May, 1992, had decreedand granted a salary increase of Rs. 250 on the present salary paidto each of the workers, with effect from 24.11.89, employed in thefour petitioner companies and contended that his award in this respectwas tainted with jurisdictional error on account of an increase ofpayment decreed with retrospective effect from 24.11.89, when theaward was made on the 4th of May, 1992.1 venture to wholly disagreewith the contentions of learned counsel for the petitioners. It is tritelaw that a court or tribunal must determine and ascertain the rightsof parties as at the date of the institution of the action or as at thedate of the making of the reference for arbitration. Commencementof the action is the time at which the rights of the parties are to beascertained. Vide Silva v. Fernando,m; Mohamed v. Meera Saibo&Bartleet v. Marikkar,<10>. The claim and demand on behalf of the workerswho were members of the fourth respondent trade union had beenmade on 12th of March, 1988. The reference by the Minister of Labourfor settlement by arbitration had been made on the 24th of November,1989 and the statement of the matter in dispute has been framedby the Commissioner of Labour and specified on the 24th ofNovember, 1989. In the circumstances, the arbitrator had jurisdiction,authority and right to decree the grant of a salary increase ofRs. 250 with effect from 24.11.89.
There is no misdirection in point of fact or law which vitiates theaward. There is no failure on the part of the arbitrator to take intoconsideration the effect of the totality of the oral and documentary
CA Kalamazoo Industries Ltd. and Others v. Minister of Labour &
Vocational Training and Others (Jayasuriya, J.)249
evidence placed before him and there is no improper evaluation ofthe evidence placed before the arbitrator on a consideration of theaward and the totality of the evidence placed before him in this matter.This court must keep prominently in forefront that it is exercising inthis instance a very limited jurisdiction quite distinct from the exerciseof appellate jurisdiction. Relief by way of certiorari in relation to anaward made by an arbitrator will be forthcoming to quash such anaward only if the arbitrator wholly or in part assumes a jurisdictionwhich he does not have or exceeds that which he has or acts contraryto principles of natural justice or pronounces an award which iseminently irrational or unreasonable or is guilty of an illegality. Theremedy by way of certiorari cannot be made use of to correct errorsor to substitute a correct order for a wrong order and if the arbitrator'saward was not set aside in whole or in part, it had to be allowedto stand unreversed. It is pertinent to refer to the principles laid downby Prof. H. W. R. Wade on "Administrative Law" 12th edition at pages34 to 35 wherein the learned author states: "Judicial review is radicallydifferent from the system of appeals. When hearing an appeal, thecourt is concerned with the merits of the decision under appeal. Butin judicial review, the court is concerned with its legality. On appeal,the question is right or wrong. On review, the question is lawful orunlawful . . . judicial review is a fundamentally different operation.Instead of substituting its own decision for that of some other body,as happens when an appeal is allowed, a court, on review, isconcerned only with whether the act or order under attack should beallowed to stand or not". In the circumstances the objective of thiscourt upon judicial review in this application is to strictly considerwhether the whole or part of the award of the arbitrator is lawful orunlawful. This court ought not to exercise its appellate powers andjurisdiction when engaged in the exercise of supervisory jurisdictionand judicial review of an award of an arbitrator.
Having carefully considered the grounds of impugnment advancedby learned President's counsel on the third respondent's award, I holdfor the reasons already enumerated by me that there is no unlaw-fulness and/or illegality in the said award and that the award is lawful.
I have reproduced extensively the last two paragraphs of the saidaward. In view of the matters spotlighted in the said two paragraphsby the arbitrator, I hold that this award is eminently rational andreasonable and that it is a just fair and equitable award viewed fromthe standpoint and the interests of all the parties to the arbitration
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(1998) 1 Sri LR.
inquiry. In the circumstances, I proceed to dismiss the applicationsof the four petitioners with costs in a sum of Rs. 7,500 payable bythe four petitioner companies to the fourth respondent trade union whorepresented the workmen as its members.
Application dismissed.