049-NLR-NLR-V-71-MUNICIPAL-COUNCIL-OF-COLOMBO-Petitioner-and-T.-P.-DE-S.-MUNASINGHE-and-4-ot.pdf
H- N. Q. FERNANDO, CJ.—Municipal Council of Colombo v. Munasinqhe 223
1088 Present: H. H. G. Fernando, CJ., and de Kretser, J.
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MUNICIPAL COUNCIL OF COLOMBO, Petitioner, and ..
T. P. DE 8. MUNASINGHE and 4 others, Respondents
8. O. 4S5 J64—-Application for a Mandate in the nature of a
Writ of Certiorari
Industrial dispute—Arbitrator's award—Requirement Oust it should be "/tut andequitable”—Scope of arbitrator’s discretion.
The discretion which the Industrial Disputes Act confers on an Arbitrator tomake an sward which is " just and equitable ” must be exercised in a reasonablemanner. The award must be “ just and equitable ” as between the parties tothe dispute in question. Hie fact that one party might have encountered“ hard times ” because of personal circumstances for which the other party isin no way responsible is not a ground on which justice or equity required theother party to make undue concessions.
“An Arbitrator holds no licence from the Legislature to make any suchaward as he may please, for nothing is just mid equitable which is decided bywhim or caprice or by the toss of a double-headed coin."
Ar:
PLICATION for a writ of certiorari.
H. V. Perera, Q.C., with H. Wanigatunga, for tho Petitioner.
No appearance for the Respondents.
Cur. adv. null.
September 3,1968. H. N. G. Fernando, C.J.—
The petitioner in this application is the Colombo Municipal Counciland the 2nd respondent is a person who from 27th November 1957 wasemployed in the post of Peon in the Municipal Engineer’s Department ofthe Council, to which post is attached the salary scale Rs. 540 rising byannual increments to Ra. 804. Shortly afterwards the 2nd respondentmade representations to the Council in an effort to be appointedto some other post, and he ultimately requested that he be placedretrospectively on a higher point in the scale of salary for Peon than theinitial of that scale.
In the result the Minister of Labour referred to the arbitration of the1st respondent a dispute between the 3rd respondent (the NationalEmployees* Union) and the Council, the matter in dispute being specifiedas follows.:—
“ The matter in dispute between the National Employees’ Union,632, Galle Road, Colombo 3, and the Municipal Council, Colombo, iswhether the Municipal Council, Colombo, is justified in placing
224 H. N. O. FERNANDO, C.J.—Municipal Council of Colombo v. Mxmaoingke
Mr. Samelis Dias on the initial point of the scale of salaries applicableto peons, viz., Rs. 540—12—Re. 804, with effect from 27.11.57, andto what relief is Mr. Samelis Dias entitled. ”
The Arbitrator in his award has inter alia recorded the followingunequivocal findings as to the facts of this case :—
(а)Samelis Dias, the employee concerned in the dispute, had beenin employment under the Council as a Bicycle 'Orderly from May1944.
(б)In June 1955 a charge sheet was served on him allegingthe misappropriation by him of a sum of Rs. 120 being moneysentrusted to him by the Council, and he pleaded guilty to thischarge.
The proper punishment for Dias’ offence was dismissal with lossof pension rights, but as a merciful alternative Dias was insteadretired for inefficiency. He thus retained his pension rights inrespect of his services for about 10 years as Bicycle Orderly.
In 1957, Dias in a letter to the Commissioner of the Councilbegged for reinstatement in the capacity of an orderly, peon orbinder. Thereafter in November 1957 he was re-employed as apeon, his letter of appointment specifying the salary scale ofRs. 540 with annual increments to Rs. 804—(E.B. before Rs. 636and Rs. 732), the appointment to be on probation for a period ofsix months.
Dias applied for and accepted this post of peon on definiteconditions of service specified in his letter of appointment.
(/) Dias should not have been re-employed by the Council as he hadbeen previously guilty of misappropriation of money.
(g) On 25th April 1961 Dias appealed for better terms of employmenton the ground of his 25 years' service under the Council.
The mere perusal of these findings of the Arbitrator suffices to establishthat Dias was fortunate indeed to have been re-employed by the Council,that the Council would not have so re-employed him except on probationand except on the basis that he was being newly employed and thereforeon the initial of the salary scale attaching to the post of peon, and thatDias himself voluntarily accepted the new appointment on those termsand in fact received salary payments for some years on the basis of aa new employment. That being so I regret that I am utterly unable tounderstand the last paragraph of the Arbitrator’s award which reads asfollows:—
“ Mr. Dias and his family have gone through very hard times sinoe1955 and some sort of relief is called for. My award is that Mr. Diasshould be paid the maximum of the scale Rs. 504—12—8C4, viz.,Rs. 804 per annum from the date of re-employment, 27th November1967. The other conditions attached to his re-employment shouldremain unaltered.”' .'
Cargo Boat Despatch Co. Ltd. v. Moosajee Ltd.
225
No doubt th'e Arbitrator has relied on the provision in the IndustrialDisputes Act which requires an Arbitrator to make an award “ justand equitable But there is literarily no single sentence in the whole ofthe award, except only the reference to ‘ hard times ’ which refers toany matter which might render it just and equitable that the Councilshould have treated Dias in any manner more favourable than any otherperson to whom the Council gave employment as a peon in 1957. On thecontrary all the findings of the Arbitrator afforded sufficient grounds, in-my opinion, for the Council to treat Dias even less favourably than otherpersons in its employment as peons.
I hold that when the Industrial Disputes Act confers on an Arbitratorthe discretion to make an award which is * just and equitable theLegislature did not intend to confer on an Arbitrator the freedom of awild horse. An award must be ‘ just and equitable ’ as between the partiesto a dispute ; and the fact that one party might have encountered ‘ hardtimes ’ because of personal circumstances for which the other party isin no way responsible is not a ground on which justice or equity requires'the other party to make undue concessions. In addition, it is time thatthis Court should correct what seems to be a prevalent misconception.The mandate which the Arbitrator in an industrial dispute holds underthe law requires him to make an award which is just and equitable, andnot necessarily an award which favours an employee. An Arbitrator holdsno licence from the Legislature to make any such award as he may please,for nothiug is just and equitable which is decided by whim or capriceor by the toss of a double-headed coin.
There being nothing in the findings of the Commissioner to render ‘ justand equitable ’ an award compelling the Council to treat Dias on termsin any way more favourable than the terms on which Dias actuallyaccepted re-employment, there is error appearing on the face of the recordwhich vitiates the Arbitrator's award.
For these reasons the award is quashed.dk Kbetser, J.—I agree.
Application allowed.