009-SLLR-SLLR-1982-1-Piyadasa-V.-Bata-Shoe-Co..pdf
CA
Piyadasa v. Rant Shoe Co.
91
COURT OF APPEALPiyadasa
V.
Bata Shoe Co.
A. 1529/79
Certiorari — substitution — arbitrator’s dutf – Revocation – appointmentand re-reference – delay.
The Petitioner and five other workmen were employed by the 1st Respondentthe Bata Shoe Company. The 1st R terminated the services of P and Sothers who were also members of a Branch Union, a Trade Union calledAll Ceylon Commercial and Industrial Workers’ Union.
The dispute -whether termination of services of thewPeW'tioner and .5others was justified, was referred by the Minister to an Arbitrator underSection 4 of the Industrial’ Disputes Act. During the hearing of. the disputeP and 5 others requested the Arbitrator to substitute, them for the tracteunion abovenamed on the ground that the Trade Union'had dehsed- tdrepresent them. This request was refused. A short while later the Trade. Upion ..and .the 1st R Bata Shoe Company asked the Arbitrator , forpermission, to withdraw from the proceedings and requested the Arbitratorto return papers to Minister
Th. . Arbitrator refused these requests and made, an award in which he.held.that the termination of .P and 5 other workmen was justified.
Petitioner made application for a Writ of Certiorari quashing the award-on the grounds-"that (1) on the 'withdrawal of the Union from the■ proceedings'it-ceased to be a .;party to the dispute (2) the P and 5. otherworkmen were, not given an opportunity of being heard.
Held /. There is no provision in' the Industrial' Disputes Act forsubstituting parties to an Industrial Dispute referred to anArbitrator under Section 4.
Following Nadarajah V Krishoadasan that once the Ministerhas duly made an order referring an Industrial dispute forsettlement by’ Arbitration he has no power to revoke the-said
‘ order and re-refer it to another Arbitrator.
Under Regulations it was not incumbent on Arbitrator toask for evidence of Petitioner before making award.
Conduct and inordinate delay of Petitioner disentitled, himfrom asking for any relief.
92
Sri Lanka Law Reports
[19821 1 S.L.R
APPLICATION for writ of certiorari.
Before:
Counsel:
Tambiah, J. & Seneviratne, J.
Prins Rajasooriya for the PetitionerMark Fernando for the 1st Respondent
Argued on:Decided on:15.12.1981
25.01.1982Cur. adv. vult.
TAMBIAH, J.
The petitioner has applied to quash by way of certiorari an Awarddated 7.7.78 made by the 2nd respondent to whom was referred adispute under s. 4 (1) of the Industrial Disputes Act by the Ministerof Labour. The present application was made on 3.7.79. almost anyear after the award was made.
The petitioner was employed as a workman under the 1st respondentcompany. He and certain other workmen were members of the 4threspondent-union. In August 1975, the Minister referred for arbitrationto the 2nd respondent a dispute that had arisen between the 1strespondent-company and the 4th respondent-union. The dispute waswhether the termination of the services of the petitioner, P.W.C.Perera, G.W. Aponso, J.E. Fernando, A. Somadasa and Fernando,who are members of the All Ceylon Commercial & Industrial Workers’Union, by the management of Messrs. Bata Shoe Co. of CeylonLtd., is justified and to what relief each of them is entitled.
According to the affidavit of the Personnel Manager of the 1strespondent-company, between September 1975, and July 1977, therewere over 30 dates of inquiry into this matter. On 4 occasions, theinquiry was postponed at the request of the parties, with a view tosettle the dispute between them. The evidence of the PersonnelManager of the 1st respondent-company was led on 30.3.76. Theevidence of one Piyadasa, called on behalf of the 1st respondent-companywas also recorded. According to the Personnel Manager’s affidavit,on about 13 dates, the evidence of these 2 witnesses was recordedand of these 13 dates, about 10 days were taken up for cross-examinationof the 2 witnesses. These are matters not controverted by the petitioner.
Piyiulaxa r. Ilala Shoe (V>. (Itimbiah. J.)
93
CA
On 6.8.77, the Attorney-at-I,aw appearing for the 4th respondentunion stated that there was an internal dispute between the parent-unionand the branch-union, of which the petitioner and the said 5 workmenare members, and asked for a postponement. On 6.9.77, Mr. VasudevaNanayakkara appeared and stated that he was representing- thepetitioner and the other 5 workmen, that they wished to pursue theircase against the employer, and asked that the petitioner and the said5 workmen be substituted in place of the 4th respondent-union, asthe latter no longer represented them. The application for substitutionwas opposed both by the 1st respondent-company and the 4threspondent-union. The application for substitution was refused by thearbitrator.• • <
On 7.11.77. Mr. Oswin Fernando on behalf "of the 4threspondent-union informed the arbitrator that a letter had been sentto the Registrar of the Industrial Court by the Secretary of the 4threspondent-union, requesting that the Union be permitted to withdrawfrom the proceedings and that as the dispute as regards the unionhad ceased to exist, the papers be returned to the Minister. A similarwritten request, signed by the 1st respondent-company had been sentto the Registrar. The arbitrator did not accede to this request buton the available proceedings, made his award wherein he held thatthe termination of the services of the petitioner and the other 5workmen was justified.
The petitioner's Counsel based the application to quash the awardon 2 grounds – (1) Once the union withdrew from the proceedings,it ceased to be a party to the dispute: the arbitrator was functusand had no jurisdiction to made an award. (2) The petitioner andthe other workmen were not efforded an opportunity of being heardin their defence, before tlie award was made.
I think the arbitrator acted quite correctly in procceeding to makehis award, as he had no other option open to him.
The petitioner and the other workmen were members of the 4threspondent-union and the union had taken up. as their ownv> thecause of the workmen. The parties to the dispute were the 1strespondent-company and the 4th respondent-union though the matterin dispute was in relation to the workmen. As was observed by T.S.Fernando, J. in Smith C'cvlon Democratic Workers' Union V Sclvatlnrai
94
Sri Lanka Law Reports
11982j I S L R
(71 NLR 244 at 246)” in the definition of an ‘industrial
dispute’ the expression ‘workmen’ includes a trade union consisting
of workmen The definition of ‘Industrial dispute' in the Act
appears to have been framed with the deliberate purpose of providingfor trade unions to take up, as their own, the cause of the workmenbelonging to their unions, and when a union has so taken up, as itsown, the cause of one of its workmen, the cause for all formal' purposes of the Act must be regarded as that of the Union and notthat of the individual workman.”
There does hot appear to be any provision in the Industrial DisputesAct for substitution of parties, where an industrial dispute is referredto an arbitrator under s. 4 (1) of the Act. There is however provisionfor aiiy person whose interests are affected by such dispute, to applyto' t'hfe arbitrator to be joined as a party (Regulation 27 of theIndustrial Disputes Regulations). There is also provision for thearbitrator, by written notice, to inform every person considered bythe arbitrator as likely to be affected by such dispute, of the date,time and place of hearing (Regulation 25 (1) (b) ). These provisionsdo not enable an arbitrator to substitute one party for another inan industrial dispute pending before him. (See S.R. de Silva’s ‘‘LegalFramework of Industrial Relations in Ceylon, at p. 278).
Nor was it open to the arbitrator to refer the papers back to theMinister, once the 4th respondent-union withdrew from the proceedings,and ask the Minister for a fresh or an amended reference. Once thereference is made, the Minister in functus and in terms of s. 17, thearbitrator is required ‘‘to make -ail such inquiries into the dispute ashe may consider necessary, hear such evidence as may be tenderedby the parties to the dispute and" thereafter make such award as mayappear to him just and equitable”. "It was held in Nadarajah Ltd.V. Krishanadasan (78 NLR 255) that where the Minister has dulyJmade an order under s. 4 (1) of the'Industrial Disputes Act, referringan industrial dispute for' settlement By'arbitration, he has rio powerfto revoke the said order of reference and re-refer the dispute toanother arbitrator. It was further Kelt) that s. 18 of the InterpretationOrdinance which empowered an authority, on whom power wasconferred to issue any order etc, to amend, vary, rescind or revokesuch order, was not intended to apply to an order of reference madeunder s. 4 of the Act and'cannot be invoked to amend, vary, rescindor revoke an order of reference made under s. 4 of the Act.
CA
95
Vivadasn v. Hrtftf Shin* ('<>. (Idnibiah, J.)
• .nr r* '>. w 1 • * ■ •__
The first submission of learned.Counsel, therefore, fails.
Was it incumbent on the arbitrator /io have asked the petitionerfor his defence‘before making his award'/ The other 5 workmen havenot canvassed the award made bv. the, arbitrator
Regulation 28 enables the, arbitrator to proceed with the matternotwithstanding the absence of a party, if without sufficient causebeing shown, a party to the proccedirigs fails to attend. An arbitrator,on a reference, is only required to hear such evidence as may betendered by the parties to thp dispute (*»…!7) unlike the IndustrialCourt which has to heat such evidence.as,,1* may consider necessary(s.24). It is not the petitioner's ease ,that lie . wanted to give evidenceand also call evidence on his „behalf, and .that the arbitrator deniedhim this demand. However it. seems to me that since the arbirtatoris empowered by s. 3b (I).of ttye Act to reqqjre any person tofurnish particulars,, produce documents and .give evidence, it wouldhave been a very desirable, thing if the arbitrator had asked thepetitioner and the other, workmen whether they wished to giveevidence, and/or call evidence on t heir behalf, for, he must act judicially.
However, I am in agreement, with.the submission of learned Counselfor the 1st respondent, that the,pctitjoner's conduct and the inordinate/delay in coming to this Court, disentitles him to ask lor relief.' Mecould have applied to be joined as, a party; he did not do so. If hisapplication now is to quash-on certiorari., ijpr award'uiitiade i withoutjurisdiction, it was equally open to him them hcforurtlic aWard wasmade, to have applied for a prohibition to prevent -the arbitratorfrom continuing with the proceedings. The, submission of the 1strespondent’s Counsel that the petitioner awaited ithei award in orderto sec which way it would go and has now conic, fo- tliis Court forrelief when the award went against him. is not without substance.
The award was made on 7.7.78 and has been published in theGazette. The petitioner has come to this Court about a vear later'on 3.7.79. His explanation that thc;>Jth respondent-union failedjj-tobring to his notice the award made and that he was kept in.ignoranceof it for a considerable, period of time, is not an acceptable one.There is no requirement that ,flvev'award must be communicated tothe parties to the disputev The7cCrtified copy of the award (annexure‘C") filed by the petitioner hed$ the date 16.2.79; at least hv February‘79,’ therefore, he was, ywar^ of- llu'i,award.
5-1
96
Sri Lanka Law Reports
(1982] l S L R
*1 reject'the application of the petitioner, but in all the circumstancesof the case, I make no order in regard to costs.
•V ‘
SENEVIRATNE, J. — 1 agree.
Application rejected.