MALIBAN BISCUIT MANUFACTURERS LTD., Petitioner, and R. SUBRAMANIAM (President,

001-NLR-NLR-V-71-MALIBAN-BISCUIT-MANUFACTURERS-LTD.-Petitioner-and-R.-SUBRAMANIAM-President-.pdf


THE
NEW LAW REPORTSOF CEYLONVOLUME LXXI1968 – Present: H. N. G. Fernando, C.J., and Abeyesundere, J.MALXBAN BISCUIT MANUFACTURERS LTD., Petitioner,and R. SUBRAMANIAM (President, Labour Tribunal) and3 others, Respondents498 !6?—Application for a Mandate in the nature of aWrit of Certiorari andfor Prohibition
Industrial Disputes Act {Cap. 131)—Effect of an atcord of an industrial court—Scopeof section 36.
Thirty workmen were transferred or demoted or interdicted by theiremployer-Company. Their dispute with the Company, which was referred bythe Minister to an Industrial Court, was withdrawn because the workmenceased to be member* of the trade union (National Employee.-:’ Union) whichrepresented them. Accordingly, on 10th February 19S7, the Industrial Courtmade an ** award ” stating: “ As there is now no dispute between tho Unionand the Company I make no award Subsequently, nearly 400 workmen,including the 30 workmen, were dismissed by the Company and, on 14th Juno1967, the Minister referred the dispute for settlement by arbitration by aLabour Tribunal. The workmen were represented this time by the CeylonMercantile Union. The Commissioner of Labour referred separately to thecases of the SO workmen in the following or similar terms: “ Whether thetransfer, demotion and the subsequent termination of employment of thefollowing employees is justified and to what relief each of them is entitled ”.
Held, that the “ award ” of the 19th February 1967, as it did not adjudicateupon and settle the disputes which had been referred to the Industrial Court,could not be binding, or operate as res judicata, in the present referenceconcerning the 30 workmen. In such a case, section 26 of the IndustrialDisputes Act has no application.
LZZt—1
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H. X. G. FERNANDO, C.J.—Mnliban Biscuit Manufacturers Ltd.
v. Subramaniam
Application for a Writ of Certiorari and/or Prohibition on thePresident of a Labour Tribunal.
C. Ranganaihan, Q.C., with <S. J. Kadirgamar, Q.C., K. D. P. Wiclcrema-singhe, C. A. Amerasinghe and II. A. Abeyicardcna, for the Petitioner.
N. Satyendra, for the 2nd Respondent.
II. L. de Silva, Crown Counsel, for the 3rd Respondent.
Cur. adv. vuU.
April 9, 1968. H. N. G. Fernando, C.J.—
By order made under the Industrial Disputes Act (Chap. 131) anddated 14th June 1967, the Minister of Labour referred for settlement byarbitration by a Labour Tribunal an industrial dispute between theCeylon Mercantile Union (the 2nd Respondent to the present application)and Maliban Biscuit Manufacturers Ltd. (the present Petitioner). Interms of the Act, the matters in dispute were specified in a statementpublished in the Gazette, and some of the matters were :—
Whether the termination of employment of about 300 namedemployees of the Petitioner was justified ;
Whether the non-offer of work to over 60 named employees wasjustified ;
Whether the transfer, demotion of and subsequent termination ofthe employment of about 26 employees was justified ;
Whether the transfer, and demotion of and subsequent non-offerof work to about 20 employees was justified ;
Several demands of the employees regarding their conditions ofemployment.
The Petitioner thereupon submitted to the Labour Tribunal astatement of its case. Paragraph two of the statement referred totwo matters:
Firstly, that there had previously been another reference to anIndustrial Court in the ease of a dispute between the Petitionerand some of its employees, and that an award had been madein that dispute ;
Secondly, that some persons named in the reference now underconsideration had instituted proceedings in a Labour Tribunal,i.e. under Part IV A of the Industrial Disputes Act, and thatthe proceedings so instituted had been terminated accordingto law.
H. N. O. FERNANDO, C. J.—Maliban Biscuit Manufacturers Ltd.
v. Subramaniaw
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With regard to the second of these matters, the arbitrator to whomthe present reference was made has upheld the Petitioner’s contentionthat the questions which had been decided by another Labour Tribunalupon the applications made to it cannot be the subject of a newreference to arbitration. There is accordingly no need for any prohibitionfrom this Court against the determination of such matter on the presentreference.
With regard to the first of these matters, I shall deal later with the legalimplications which are involved.
The third and fourth paragraphs of the Petitioner’s statement of casewere as follows :—
The Company submits that this Tribunal has no jurisdiction, in anyevent, to entertain the reference or make any award in regardto termination of services or non-offer of work or transfer,demotions or interdictions.
The Company also submits that the Hon’ble the Minister has no powerto make a reference ' en masse * involving so many persons.
The grounds stated in the third and fourth paragraphs quoted abovehave also been taken in the present application to this Court. ButCounsel who appeared for the Petitioner before us addressed no argumentin support of these grounds. Instead, he desired it to be recorded, and Inow so record, that these grounds were raised because of a possibleeventuality that the Petitioner may be advised in future proceedings tocanvass before the Judicial Committee of the Privy Council the correctnessof the decision of Their Lordships in the case of The United EngineeringWorkers’ Union v. Devanayagam *.
The matter mentioned in the fifth, sixth and seventh paragraphs of.the Petitioner’s statement of case also challenged the jurisdiction of thearbitrator to entertain the reference made to him by the Minister underthe Act. But these matters were apparently not pressed at theproceedings before the Labour Tribunal, and they were not mentioned atall in the application made to this Court or during the argumentbefore us.
The eighth to the last paragraphs of the Petitioner’s statement ofcase referred to various matters pertinent to the actual dispute whichwas referred for arbitration, which matters would of course have beenconsidered by the arbitrator upon the present reference, if the Petitionerhad not objected, by the plea against jurisdiction which the Petitionerraised before the arbitrator and in this Court, to the taking of proceedingsby the arbitrator.
The objections raised by the Petitioner in his statement of case (notincluding of course the matters referred to in paragraphs 8 et seq. of thestatement) were dealt with by the arbitrator in his Order of 12th
1 [1967) 69 N. L. R. 289.
7 -PP 006137 (98/08)
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H. N. O. FERNANDO, C.J.—Maliban Biscuit Manufacturers Ltd.
v. Subramaniam
December 1967. He overruled all the objections, save that concerningthe binding effect of previous determinations of another Labour Tribunal.The arbitrator has thus indicated that he will not re-consider thecorrectness of those determinations.
Thereafter the Petitioner made the present application to this Courtfor a writ of prohibition against the taking of any further proceedingsby the arbitrator on the reference made to him. The grounds uponwhich the writ was sought are set out in 9 sub-paragraphs of paragraph 15of the petition to this Court. But during his argument, Counselfor the Petitioner frankly and properly admitted that he could notpress the grounds stated in 5 of the sub-paragraphs. In addition, theground stated in sub-paragraph (vii), which referred to the previousdeterminations of another Tribunal, had already been decided by thearbitrator in favour of the Petitioner and did not therefore call forargument before us.
Of the other 3 grounds, one of them (in sub-paragraph ii) was formallytaken with a view to reserve the right to challenge before the PrivyCouncil the correctness of Their Lordships’decision in Devanayagam’s case.We are of course unaware of the course which the Petitioner proposes totake in that connection. But I must express emphatically the opinionthat, even if the Petitioner did intend to ask for a re-consideration of thedecision of the Privy Council, the proper stage for so doing would be afterthe arbitrator makes his award on the dispute referred to him.
There remain two grounds for this application, namely those set outin sub-paragraphs (i) and (vi) of paragraph 15 of the petition. Theground stated in sub-paragraph (i) is that the arbitrator " had nojurisdiction to entertain a reference relating to demotion, transfer,interdiction, non-offer of work, non-employment and termination ofservices Counsel however did not urge, as a general proposition, thatsuch matters cannot form the subject of an “ industrial dispute ” withinthe meaning of the Act. The objection taken in sub-paragraph (i) relatesonly to the special circumstances of this case, and is connected withthe grounds stated in sub-paragraph (vi), which reads as follows :—
“ Matters relating to some of the workers in the said reference by the_ Minister having been the subject of a reference previously to anIndustrial Court and an award having been made namely ID No. 361dated 19.2.67 no Industrial Dispute in respect of the said mattersand the said workers survives in law and/or the award made by theIndustrial Court is Res Judicata and/or the Minister has no power inlaw to make this reference and is "Functus officio ” ; a true copy of thesaid award, is produced herewith as part and parcel of the 2ndRespondent’s answer already marked “ F
H. N. O. FERNANDO, C J.—Maliban Biscuit Manufacturers Ltd.
v. Subramaniam
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Some mention of the history of this dispute is now necessary. Some-time before November 1966 about 30 workmen had been either transferredor demoted or interdicted by the Petitioner. Those workmen were atthat time members of the National Employees’ Union, and a disputebetween that Union and the Petitioner concerning the cases of thoseworkmen was referred to the Industrial Court by an order made by theMinister on 22nd November 1966. By the time the case was taken upfor hearing by the Industrial Court, it appears that the workmen hadceased to bo members of that Union. For this reason, a representativeof the Union informed the Court on 18th Februaiy 1967 that “ they werewithdrawing the applications It seems fairly clear that in fact theworkmen no longer had confidence in that Union.
In these circumstances, the Industrial Court, on 19th February 1967,executed a document having the formal appearance of an award madeunder the Act. But the only effective statement in that “ award ” is“ As there is now no dispute between the Union and the Company 7 make 'no award'*.
Events now took a much more serious turn. In circumstances to whichI will not here refer, because it will be the task of the arbitrator to considerthem, nearly 400 workmen were dismissed by the Petitioner, including the30 workmen concerning whom there had been the earlier dispute, and theprincipal matter now referred to arbitration is whether those dismissalswere justified. In setting out the matters now in dispute, the Commis- -sioner of Labour has referred separately to the coses of these 30workers in the following or similar terms:—
“ Whether the transfer, demotion and the subsequent termination
of employment of the following employees is justified and to what
relief each of them is entitled.”
The objection now taken in sub-paragraph (vi) of paragraph 15 of thepetition is that becauso the matters of the transfers and/or demotions ofthe 30 workmen were the subject of the former reference to the IndustrialCourt, those same matters cannot bo the subject of another referenceunder the Act. But considerations both of law and of commonsenserender this objection untenable.
Section 26 of the Act declares that the award-of an Industrial Courtshall be binding on the parties, trade unions, employers and workmenreferred to in the award. But although the Industrial Court, in the caseof the dispute referred in November 1966, made its order in the form ofan “ award ”, there was surely no legal award made in that case. Onthe contrary, the Court explicitly stated that it made no award. Insuch circumstances, the Act has no provision which prevented the Ministerfrom referring to arbitration the disputes concerning the 30 workers towhom the former dispute related. Nor, even if the doctrine of resjudicata is to apply, does that doctrine operate where there has notbeen either an adjudication or a dismissal of an action.
!•*—H 16452 (8/58)
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H. N. G. FERNANDO, C.J.—Matihan Biscuit Manufacturers Ltd.
v. Subramani/jm
Iii fact, at the time when the Minister made the present referencethere was quite clearly in existence a dispute between the CeylonMercantile Union and the Petitioner concerning the termination of theservices of these 30 workmen and also concerning the earlier transfersand/or demotions of those workmon. One object of the Act is the settle-ment of such disputes, and so long as there had not come into force anaward which adjudicated upon and settled the. disputes, it was entirelyreasonable and necessary that the Minister included them in his referenceof the wider disputes which subsequently aroso.
Counsel for the Petitioner was driven into the position of having toargue that the former reference to the Industrial Court is still pending inthat Court, and that the matters of the transfer and/or demotion of the30 workmen must be adjudicated upon by that Court, and not by thearbitrator upon the present reference. If then relief is yet available inlaw with respect to these matters, the Petitioner’s object ion to 1 ho questionof relief being now considered and decided by the arbitrator is purelytechnical and obstructive. The course of proceedings in the present andother cases whieh have come to the notice of this Court create in mymind the fear that any attempt to resume proceedings in the IndustrialCourt will be resisted by the Petitioner with the argument, embodied inparagraph 15 (vi) of the present petition, tiiat the “ award ” made by theIndustrial Court on 19th February 1907 is res judicata.
I hold that the present reference properly inc luded the specified mattersin dispute concerning the 30 workmen regarding whom a dispute existedin November 19U6.
Before the arbitrator, and again in the application to this Court, thePetitioner sought to prevent altogether the taking of proceedings by thearbitrator for the investigation and settlement of the disputes whichhad arisen. In the petition to this Jourt, several objections to jurisdictionwere taken, which the Petitioner’s Counsel did not consider to be worthyof argument before us. One of the objections, namely that the dispute inthis case is not a minor dispute is almost absurd. Indeed, as I haveshown, the one objection pressed before us related only to the cases of30 workmen from among nearly 400 cases ; and even if that objection hadbeen upheld, that w'ould have afforded no ground whatsoever for anorder of this Court restraining the arbitrator from investigating thedisputes concerning the dismissal of over 300 other workmen and variousother disputed concerning the terms and conditions of their employment.In fine, not one of the several grounds of objection could have justifiedany hope of a decision, either by the arbitrator or by this Court, thatproceedings should not be taken by the arbitrator upon the reference. Itis regrettable that advantage is often taken of the right of recourse to thisCourt without any substantial expectation of success, and with theconsequence only that harassment is caused to opposing parties in theform of delays, inconvenience and expense.
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Jaynftingho c. Rnnso Nona
I cannot leave this case without stressing tho need fcr employers andtheir legal advisers to become reconciled to the existence of the IndustrialDispute.-, Act and of the machinery which Parliament has therein providedin th“ public interest for the settlement of industrial disputes and thopreservation of industrial peace. Obstructive tactics by an employerinvolved in such a dispute serve only to create tho impression that theemployer t-Uhtr has no faith in the merits of his own case, or else that heis iu rebellion against the law of the land.
J deoiiss the Petitioner’s application with costs fixed at Its. 1,050payable to tin* 2nd Jtospondent.
A bey ksusdekk, J.—I agree.
Application dismissed.