036-NLR-NLR-V-48-LIPTONS-LTD.-Petitioner-and-GUNASEKERA-Respondent.pdf
Liptons, Ltd. v. Gunasekera.
105"
1947 Present : Soertsz S.P.J., Keuneman J. and Canekeratne, J.
LIPTONS, LTD., Petitioner, and GUNASEKERA, Respondent.
S. C. 619—In the matter of an application for a Mandate in the
NATURE OF A WRIT OF CERTIORARI AGAINST S. S. J. GUNASEKERA,
a Tribunal appointed under the provisions of the EssentialServices (Avoidance of Strikes and Lockouts)
Order, 1942.
Writ of certiorari—Essential Services (Avoidance of Strikes and Lockouts>Order, 1942, rules 6, 7—Trade dispute referred by Commissioner ofLabour to District Judge for settlement—Duty- of District Judge to besatisfied in his own mind that the dispute is a trade dispute.
A District Judge to whom a petition for the settlement of a tradedispute is referred by the Commissioner of Labour under rule 6 of theEssential Services (Avoidance of Strikes and Lockouts) Order, 1942, must,if objection is taken' that the matter referred for investigation does notrelate to a trade dispute, be satisfied in his own mind that a trade disputeand not any other kind of dispute has been referred to him. He is notbound to accept as conclusive the opinion of the Commissioner of Labourthat the dispute in question is a trade dispute.
A
PPLICATION for a writ of certiorari. This application was referredby Soertsz A.C.J. to a Bench of Three Judges.
The Commissioner of Labour was satisfied that a petition presented tohim under rule 6 of the Essential Services (Avoidance of Strikes andLockouts) Order, 1942, related to a trade dispute, and referred the petitionto the District Judge. When the matter came up before the DistrictJudge, preliminary objection was taken that the question raised in thepetition did not disclose a “trade dispute” within the meaning of thedefinition of that term in the Essential Services (Avoidance of Strikesand Lockouts) Order, 1942. The District Judge took the view that he
106
Uptons, Ltd. v. Gunasekera.
could not challenge the judgement of the Commissioner of Labour oncethe latter had exercised his judgment and found that the matter in thepetition referred to a trade dispute. He, accordingly inquired into thematter and made an award.
This application for a writ of certiorari was made to quash the order ofthe District Judge.
H. V. Perera, K.C. (with him E. G. Wickramanayake), for the petitioner.—The Essential Services (Avoidance of Strikes and Lockouts) Order, 1942,was made under rule 43 (c) of the Defence Regulations. The Orderdefines various terms. The definitions of “ workman ” and “ tradedispute ” must be carefully considered.
Under section 6 where a trade dispute arises between the employerand his workmen the workmen or the employer may petition the Controllerto settle the dispute. The Controller, if he is satisfied that the petitionrelates to a trade dispute, shall transmit the petition to the District Judge.
[Soertsz S.P.J.—Can the District Judge canvass the finding of theController that there is a trade dispute and can even this court interferewith such a finding ?]
The Controller is merely the transmitting officer. He does not andcannot make an order affecting the rights of parties and, further, theController acts ex parte without any notice to and without hearing theother side. Acting in this way the Controller cannot be said to beexercising judicial functions. The fact that the transmission by theController is necessary before the District Judge can inquire into thematter does not preclude the District Judge from deciding whether ornot a trade dispute exists, if the issue is raised before the District Judge.
Section 8 of the Order states that the award of the District Judgeshall be final and shall not be called in question in a court of law. Thatonly means that such award is not subject to appeal or revision but suchaward can certainly be quashed by this Court if it was made outsidejurisdiction. Such an award would clearly be in excess of jurisdictionif the District Judge makes an award in a matter which would not be atrade dispute according to the definition in the Order. Thus the Writ ofCertiorari will lie against the District Judge but not against the Controllerwho is merely the transmitting officer.
The definition in the Order involves two essential elements in a tradedispute. Firstly there' must be a dispute between an employer andworkmen who remain as workmen at the time the dispute arose,and secondly the dispute must be “ in or in connexion with or incidentalto the performance of essential services.” A safeguard against unfairadvantage to an employer by dismissal of workmen during a trade disputeis provided by including in the category of workmen workmen dischargedduring a trade dispute. But a workman dismissed before the disputeoriginated does not and cannot come in under the definition of workmanin the Order. The word “ performance ” in that context is important.
The question naturally arises “ performance by whom ?” and it is obviousit cannot mean performance by anybody at all. The most reasonableconstruction seems to be that it is performance—as far as employees areconcerned—by workmen who remain as workmen and not by dismissed
Lip tons, Ltd. v. Gunasekera.
107
workmen. It will thus be clearly seen that the reinstatement of a dis-missed workman cannot be a trade dispute between the employer andremaining workmen. The dismissal of a workman and his reinstatementare matters personal to him but such matters may give occasion for atrade dispute, but of themselves can never be a trade dispute according tothe definition in the Order.
The reasonable construction to be placed on the meaning of tradedispute in the context seems to be that it refers only to the terms andconditions of employment. Sections 8, 9, 10 and 11 of the Order seem tosupport this view. The decision in Brown and Company v. Roberts1 can-not be justified in so far as trade dispute has been given an-extendedmeaning and as it held that the Tribunal could not canvass the findingof the Controller that there was a trade dispute.
S. Nadesan (with him G. Thomas), for the respondent (the Presidentof the Ceylon Mercantile Union).—The Avoidance of Strikes and LockoutsOrder was made for the purpose of preventing interruption of work inthe Essential Services by strikes and lockouts. Workmen going out onstrike to get other workmen unfairly dismissed reinstated was a commonoccurrence before the Order was made, and after the Order was mademany workmen have been sentenced to terms of imprisonment on thefooting that such strikes were for and in futherance of trade disputes.
The definition of Trade Dispute in the Order (Avoidance of Strikes andLockouts) is at least as wide as the definition of Trade Dispute in TradeUnions Ordinance (Cap. 116, Legislative Enactments). English Courts,considering a definition identical in terms with definition of Trade disputein Chap. 116, have held that a strike to get a dismissed workman reinstatedwas a trade dispute. See Rex v. National Arbitration Tribunal Ex parteKeble Press, Ltd The definition of trade dispute in the Order is verywide and the words “to … performance of Essential Services ”
were put in merely to distinguish disputes of workmen in their employ-ment from disputes other than those in their employment. Therestricted meaning of trade dispute suggested by the petitioner wouldnot even cover terms and conditions of employment.
Walter Jayawardane, C.C., as amicus curiae.—On the question whetherthe Controller’s finding that there is a trade dispute can be canvassed,it depends on whether the Controller was exercising judicial functions ormerely executive or administrative functions. If he was acting judiciallyand within jurisdiction the finding cannot be canvassed but if he actedoutside his jurisdiction his finding can be canvassed. But if he wasexercising executive functions or merely acting ministerially his findingcannot be canvassed. The question is what powers are given to theController by the particular words “ if he is satisfied ”. In arriving at adecision on this matter the following cases may prove useful: Liversidge v.Anderson and another’; Point of Ayr Collieries, Ltd. v. Lloyd George ‘;Carltona, Ltd. v. Commissioner of Works and OthersB; Wijesekera v.Festing *; Ramasamy Chettiar v. Attorney-General ’; The Attorney-Generalv. Valliyamma Atchles.
1 (1946) 47 N. L. R. 529.
(1943) 2 A. E. R. 633.
(194?) 1 A. C. 206.
(1943) 2 A. E. R. 546.
s (1943) 2 A. E. R. 560.
• L. R. 1919 A. C:(P. C.) 646.■> (1937) 38 N. L. R. 313.
« (1944) 45 N. L. R. 230.
108
SOERTSZ S.P.J.—Liptcms, Ltd. v. Gunasekera.
On the question whether Certiorari would lie against the DistrictJudge who is the Tribunal, the District Judge is merely persona designataand does not act under an extended jurisdiction of the ordinary DistrictCourt.
As regards trade dispute the definition in the Order (Avoidance ofStrikes and Lockouts) is wider than the definitions in Chap. 116 and inthe various English Orders. The language itself is clear and thereforeconstruction becomes unnecessary. If the definition is wider than, oreven as wide as, the definitions in the English Orders then English Caseswould be relevant. National Association of Local Government Offices v.Bolton Corporationl, Rex. v. National Arbitration Tribunal Ex parte KeblePress, Ltd. Furns Shipbuilding Co. v. London and North Eastern Rail-way“ are some of the cases in which the meaning of trade dispute hasbeen considered. Conway v. Stocks' may be considered as authority forthe proposition that the finding of such an officer as the Controller cannotbe canvassed.
H. V. Perera, K.C., in reply.—The principle in Conway v. Stocks{supra) is not applicable in the circumstances of this case. The decision inthat case means only that the jurisdiction of a tribunal legally constitutedcannot be challenged by parties.
March 7, 1947. Soertsz S.P.J.—
This is an application for a writ of Certiorari to quash the award madeby a District Judge to whom the Controller of Labour referred a petitionthat had been presentd to him, admittedly, by a .competent person,for the settlement of the matters raised in the petition, the Controllerstating in his letter which accompanied the petition that he was satisfiedthat the petition disclosed a trade dispute and that he was, therefore,referring it for necessary action.
When the matter came up before the District Judge to whom it hadbeen thus referred, Counsel appearing on behalf of the respondent tookthe 'objection that the question raised in the petitioner’s petition did notdisclose a “ trade dispute ” within the meaning of the definition of thatterm in the Essential Services (Avoidance of Strikes and Lockouts) Order,1942, and Counsel invited the Tribunal to consider his objection by wayof a preliminary issue, but the District Judge took the view that hisjurisdiction had been determined for him when the Controller of Labourreferred the petition to him on the footing that he, the Controller, wassatisfied that it disclosed a trade dispute. The District Judge dealt withthis objection to his jurisdiction as follows : —
“ In an earlier trade dispute which was referred to this Tribunal asimilar preliminary objection was taken and I held there that oncethe Commissioner of Labour had exercised his judgment and foundthat the matter in the petitipn referred to a trade dispute, such decisionipso facto conferred jurisdiction on this Tribunal to inquire into thematter and make an award and that this Tribunal could not challengethe judgment of the Commissioner of Labour.”
1 {1943) 3 A. E. R. 425.3 (1934) 103 L. J. (K.B.) ISO at 1S2.
* (1943) 2 A. E. R. 033.* (1943) 2 A. E. R. 226.
SOERT3Z S.F.J.—Lip tons. Ltd. v. Gunasekera.109
In my opinion, this is a grave misconception on the part of the DistrictJudge of his powers and functions in a matter of this kind. If that viewwere to prevail, it would mean that the important question whetherthere is a trade dispute or not can be decided without the party res-pondent being heard in regard to that question, and that would be sub-versive of the fundamental rule that enjoins that the party concernedbe heard—" Audi alteram partem. ” The definition of trade dispute inthe order is of such a nature that it is hardly to be expected that to allminds it will convey the same meaning. Rather it may be said in regardto it that “ Quot homines tot sententiaeand, therefore, parties to adispute are entitled to have the benefit of the view of all the persons thatare empowered by law to reach a view as to whether the dispute is a tradedispute. The rule under which the Controller referred the petition to theTribunal is rule 6 (2). That rule says that—
“ On receipt of any such petition, the Controller shall if he is satisfiedthat the petition relates to a trade dispute transmit the petition to theDistrict Judge.”
Rule 7 goes on to say :
“ A District Judge may hear such evidence as he may deem necessaryfor the investigation of any trade dispute referred to him for settlementunder the preceding paragraph of this order but shall net be bound bythe rules of evidence.”
A District Judge is required to investigate “ any trade dispute referredto him.” that is to say a trade dispute so defined in the order and anydispute that to the mind of the Controller appears to be a trade dispute.In other words, the District Judge has to be satisfied in his own mindthat it is a trade dispute within the meaning of the definition, that comesup for investigation. It may, no doubt, happen that a dispute which theController erroneously considers to be a trade dispute appears to theDistrict Judge himself to be a trade dispute. That is not to the point,for the power to decide a question does not mean the power to decideit rightly but the power to decide it in a judicial manner, that is to say,without surrendering his judgment to the view of some other party. Inthe case of Brown & Co., Ltd. v. Roberts Dias J. observed as follows : —
“ Once the Controller has Satisfied himself under section 6 (2) that atrade dispute in an Essential Service existed and transmits the disputeto the Tribunal for settlement, I do not think Mr. T. W. Roberts(that is to say the Tribunal in that instance) had any option but toproceed.”
With due deference, I do not agree with that view at all for the reasonsI have already given. In ray view, when the respondent took theobjection that the matter referred for investigation did not relate to atrade dispute, it became the duty of the District Judge to consider thequestion whether there was a trade dispute and to give his decision thereon,for his power to proceed further depended on his finding that there wasa trade dispute and not upon the declaration of the Controller that he
1 {1946) 47 N. L. R. 529.
110
HOWARD C.J.—Appuhamy v. Thailammal.
was satisfied that there is a trade dispute. To put in other words, anecessary condition for the Controller to derive the power necessary forhis transmitting the petition to a District Judge is that he should besatisfied that it disclosed a “ trade dispute ”, and for the District Judgeto invest himself with the necessary power to investigate and settlethe matter he, in turn, must be satisfied that there is a trade dispute andnot any other kind of dispute that has been referred to him.
The District Judge, having refused to deal with the question in thatway, was not competent to make the award he made. In this view of thematter, it is not necessary to consider the other questions that were raisedand discussed at the hearing. I would quash the proceedings and award.Keuneman J.—I agree.
Canekeratne J.—I agree.
Proceedings and award quashed_