Brown and Company r. Steuarl Industries Ltd. (Alttkorale. J.)
RATNAYAKE AND OTHERS
C.D. PERERA AND OTHERS
SHARVANANDA, J., VICTOR PERERA, J.. AND COLIN-THOME, J.
S.C. 32/81 – CA No.2332/80MAY 3 AND 4, 1982.' 1982.
Trade Union Ordinance, Section 52 – Interpretation Ordinance, Section 2(gg) -Writ of Mandamus – Availability to enforce' performance of public duty – Noprivate contractual right
The appellants and the 3 respondents are teachers and are also members of theLanka Guru Sangamaya. A is a member of the General Committee of theSangamaya for the year 1980/81, 1st respondent is the Secretary, 2nd respondentis the President and 3rd respondent is the Treasurer.
The appellants 43 in number alleged that as duly elected members of the GeneralCommittee they requisitioned a meeting of the Central Committee in terms oftheir Constitution – but that' the respondents acting in concert refused to convenethe meeting and had committed various other breaches of their duties in violationof the Constitution.
The appellants therefore prayed for a Writ of Mandamus directing the respondentsto do various things besides convening the meeting.
The respondents filed objections stating that the Writ of Mandamus was notavailable to appellants.
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^either the Lanka Guru Sangamaya nor the respondents, its officials are publicbodies performing duties of a public nature; the duties that the petitioners wantthe respondents to be compelled to perform by Writ of Mandamus arc not dutiesof a public nature for which'a Writ" will lie. They aTe contractual duties outsidethe ambit of Mandamus.
Cases referred to:
Bonsor v. Musicians Union (1956) A.C. 104; (1955) A.E.R. 518.
F’erera v. Municipal Council, Colombo (1947) 48 NLR 66.
Perera v'.' Ceylon Government Railway Union Staff Benevolent Fund (1963)67 NLR 191.
DeAlwis v. Silva (1967) 71 NLR 108.
Siriwardene v.xFernando (1973) 77 NLR 469. ■■
Ex-pane Napier (1852) 18 Q.B. 692.
King v. Governor & Co., Bank of England 2, B and Aid. 620, 622.
Farasmus v. Film Artists Association (1963) 1 AER 636.
Trade Exchange Ceylon Ltd. v. Asia Hotels Corporation Ltd. (1981) 1 Sri LR67.
APJPEAL from Judgement of the Court of Appeal
Nimal Senanayake, S.A. with (Mrs.) A.B. Disanayake and Arunalilake de Silvafor the petitioners – appellants.
D.S. Wijesinghe with Percy Dharmawdrdena for die respondents respondents.
June 1st-, 1982
The petitioners-appellants and the three respondents belong to theteaching profession. They are members of the trade union called andknown as ‘Lanka Teachers Union’ (Lanka Guru Sangamaya). ’Thepetitioners-appellants are elected members of the General Committeeof the Sangamaya for the year 1980/81 and camp to function as suchfrom 27.7.1980. The 1st respondent is the elected General Secretary;and 2nd respondent is the elected President; and the 3rd respondentis the elected Treasurer of the said union for the year 1980/81 andhave functioned as such from 27th June 1980.
Under the provisions of the Constitution of the Union the firstrespondent' is charged with the performance of the administrativeduties of the union under the supervision of the General Committeeand with the duty of convening meetings of the Central Committeeand General Meetings of the Union in accordance with the Constitutionof the Union; the second respondent is under a duty to preside atmeetings and ensure the observance of the Rules of the Constitution
SC Ratnayako and Others v. C.l). Perera and Others (Sharvananda, ].)453
at meetings; and the third respondent is charged with the duty ofkeeping proper accounts of the union and ensuring that union fundsare used for purposes authorised4 by the Central Committee and toprevent utilisation of the funds of the union without the sanction ofthe Central Committee in accordance with the rules of the union.
The petitioners Who numbered 43 in the Court of Appeal allegedinter alia that they were all duly elected members of the CentralCommittee of the union and that despite the requisition dated 20thAugust 1980 signed by the 38 members to convene the meeting ofthe Central Committee 7 the 1st and 2nd respondents acting in concertwith the 3rd respondent have inter alia refused to convene a meetingof the Central Committee and had committed various breaches oftheir duties in violation of the provisions of the union Constitution.The petitioners therefore prayed for the issue of a Writ of Mandamus-
fa) directing the 1st, 2nd and 3rd respondents to convene ameeting of the Central Committee of the Lanka GuruSangamaya, for the, purpose of submitting a statement ofclaims of expenditure and income and consideration of suchstatement;
for the appointment of a date of meeting of the CentralCommittee.
for an injunction restraining any expenditure by the 1st,2nd and 3rd respondents of the money of the union otherthan expenses necessary for the convening of the CentralCommittee meeting.
directing the respondents to place on the Agenda of meeting;
the consideration of returns and declarations made bythe respondents under the provisions of the TradeUnion Ordinance and the issuing of directions by theCentral Committee in respect thereof,
directions by the Central Committee in respect of allfinancial matters and legal actions pending in Court.”
The respondents filed objections to the application. While denyingthe allegations of the petitioners, (hey took the objection in limine,that the application of the petitioners for the grant of Writ ofMandamus was misconceived and that such a Writ was not availableto the petitioners. '••-'•w :
The Court of Appeal upheld the objection and held that the dutycast on the Secretary of the Lanka Guru Sang-maya to summon a
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meeting of the Central Committee on a requisition made by' 1/3 ofthe members of the Central Committee was not a duty of a publicnature and hence the Writ of Mandamus did not lie to compel itsperformance. The petitioners have preferred this appeal against theOrder of dismissal of their application.
The main contention of the petitioners-appellants is that the dutyto summon the meeting is a statutory duty and that the duty is ofa public nature.: Reference was made to the provisions of the TradeUnion Ordinance and regulations made thereunder, and it wascontended that the Constitution of the Lanka Guru Sangamaya hadstatutory orientation being “Written Law” within the meaning ofsection 2(gg) of the Interpretation Ordinance.
The Interpretation Ordinance section 2(gg) (Chap.2) states that“In this Ordinance and in every written law ….“Written Law"shall mean and include “all Ordinances and Acts of Parliament
and all Orders, Rules, Bye-Laws, Regulations made by
any body of persons under the authority of the statute.”
It was submitted that the sole question posed by this section waswhether the Rules of the Union have been made under the authorityof a statute and if so, they constituted “Written Law”. Counsel urgedthat these rules have been made under the authority of the TradeUnion Ordinance and the Regulations made thereunder. Section 52of the Trade Union Ordinance authorises the making of regulationsby the Minister. It provides that the Minister may .make Regulationsfor the purpose of carrying out or giving effect to the principles andprovisions of the Ordinance. There is no provision in the TradeUnion Ordinance or in the Regulations made thereunder empoweringany private person or group of private persons to frame any statutoryRules or Constitution for any trade union. It is not claimed that theConstitution of the Lanka Guru Sangamaya was made by the Ministeror any other public authority in the exercise of the regulation makingpower under section 52.
It was however submitted by Counsel that as section 8 of theOrdinance makes registration of a trade union compulsory and assection 10 makes satisfaction'of the Registrar, that the objects, rulesand Constitution of the union do not conflict with any of suchprovisions and are not unlawful, condition precedent to registrationof such union, and as section 38 makes it mandatory that Rules ofevery registered frzdz union should provide for all the matters
SC Rainayaka and Others v. C.D. Perera and Others (Sharvananda. ].)455
specified in the First Schedule and as part VI of the Ordinancemakes provision for certain matters of the Constitution of the union,that the Rules or Constitution of the union constituted “Written Law”as defined in the Interpretation Ordinance and hence had statutory force.
The fundamental flaw in the argument relating to the applicabilityof section 2(gg) of the Interpretation Ordinance is that it overlooksthe fact that the statutory definition of the words contained in section2 of the Interpretation Ordinance applies only when such words arepart of any enactment and are to be interpreted. That definitioncannot be applied in a non-statutory context. Our attention Has notbeen drawn to the words “Written Law”, in the text of the Ordinanceand hence that definition of “Written Law” cannot be invoked insupport of the argument that the Rules of the Union constitutedLaw of the land.
Regulation 3 of the Trade Union Regulations of 1935 made undersection 52 of the Ordinance provides that every application (badeudder section 9(1) of the Ordinance for the registration of a TradeUnion should be substantially in form “B” of the Regulation andform “B” requires a copy of the Rules of the union to be attachedto the application for registration. For a trade union to be registeredunder section 8, it is essential that it should have a Constitution orRules. Section 38 mandates that the Rules of the union shouldprovide for the matters specified in the first schedule. One of thematters so specified is the appointment or election and removal ofany Executive and of Trustees, Secretary, Treasurer and other Officersof the Trade Union. According to item 8 of the form “B” referredto in Regulation 3 provision has to be made in the Rules of theunion, inter alia for the manner in which the meeting of the unionshould be held, minutes of the meetings should be recorded andconfirmed and meetings of the Board should take place and themanner in which the executives, the officers of the union, the auditoror trustee shall be appointed and removed. Compliance with therequirement that the trade union should have a constitution and thatthe constitution should provide for all matters referred to above, isa sine qua non to secure registration of the union. It is however tobe noted that the contents of the Rules are left to. the free determinationof the members of the union. Section 15 empowers the Registrar tocancel the registration if the trade union rescinds any Rules providingfor any matter for which provision is required by section 38. Thefallacy in counsel’s argument lies in his assumption that registrationof the union in conformity with the requirement's ofthC'Trade Union
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Ordinance operates to stamp the union’s constitution with statutorycharacter. Registration does not impart any statutory quality to theRules of the union.' Trade unions are not the creation of statute,they a re'the creations of contract and their rules are consensualin nature.
The registered trade union is not . a corporation, nor an, individual,nor a partnership. A union becomes on registration a legal , entity■ distinct from an . unregistered, trade union. A registered trade unionis recognised by the law as a body distinct from the individuals whofrom time to time compose it. Bonsor Vs. Musicians Union. (1)
A trade union thus possesses some sort of entity apart from itsmembers. However a trade union is basically a voluntary associationand contract is the foundation or basis for its Rules. The union hasno statutory constitution – the rights of its members stem from thecontract of membership. The fundamental concept that the relationshipbetween the members and the trade union is the product of contracthas to be borne , in mind in determining the question, of law raisedin the appeal, namely, whether it is a private or public body.
The general rule of Mandamus is that its function is to compel apublic authority to do its' duty. The essence of Mandamus is that itis a command issued by the superior Court for the performance ofpublic legal duty. Where officials have a public duty to perform andhave refused to perform, Mandamus will lie to secure the performanceof the public duty, in the performance of which the applicant hassufficient legal interest. It is only granted to compel the performanceof'duties of a public nature, and riot merely of private character-that is to say for the enforcement'of a mere private right, stemmingfrom a contract of the parties —
“The duty to be performed must be of a public nature. AMandamus will not lie to order admission or restoration to anoffice essentially of a private character, nor in general, will itlie to secure the due performance of the obligations owed bya company towards its members, or to resolve any other private. dispute, such as a claim to reinstatement to memt>ership of atrade union, nor will it issue to a private arbitral tribunal” deSmith t judical Review 4th Ed. page 540.
It is settled law that for Mandamus to lie the applicant must havea legal right to the performance, of some duty, of a -public and not■of a private character – Perera Vs. Municipal Council, Colombo.(2)Even a -duty arising under a statute may be a duty of a private kind.
SC Ratnayaka and Others v. C.D. Perera and Others (Sharvananda, J.)457
It was held in Perera Vs. Ceylon Government Railway Union StaffBenevolent Fund (3) that the duty under section 17 of the RailwayUnion Staff Benevolent Fund Ordinance, of the Secretary and Treasurerto summon a General Meeting is neither a public duty nor a dutyto be performed in the interests or for the benefit of the people,and that hence a Writ of Mandamus will not lie to compel itsperformance. It was again held in De Alwis Vs. Silva, (4) that theadministrative regulations laid down in the Ceylon. GovernmentManual of Procedure did not have the status of "Law** and thatnon-compliance with them could not be enforced by Mandamus. Thusit is fundamental for the invocation of the remedy of a Writ ofMandamus that there must be refusal to perform some, duty of apublic nature and, not of a privte character.
Counsel for the* appellants referred to the case of Siriwardena Vs.Fernando (5), as pointing out the criteria for identifying what was“Office of public nature” for the purpose of the issue of a Writ ofQuo Warranto. In that case it was held that offices of President andVice President created by bye-laws of a Co-operative Society registeredunder section 6 of the Co-operative Societies Ordinance were officesof a public nature. The judgment in that case is based on theadmission of Counsel for both petitioner and the respondents, thatthe office in question was one “which had been created under astatute” and on the assumption that a bye-law of the NattandiyaCoconut Producers Co-operative Society Ltd., Lunuwila, was “writtenlaw”, within the meaning of section 2(gg) of the InterpretationOrdinance. The correctness of this admission and assumption is opento question and this conclusion may have to be reviewed in anappropriate case. It js not necessary for the purpose of this case togo into the question of the correctness of the above conclusion; itis sufficient to state that it is not legitimate to apply the indicia foridentifying an “office of a public nature” to determine' what is a“duty of a public nature” for the enforcement of which a Writ ofMandamus will lie.
“The right of the. applicant may arise from and the duty whichhe seeks to enforce,may be imposed by either .(1) statute (2) charteror (3) the common law or custom as e.g. the right of burial in theparish church yard’’ – Short on Mandamus 228. However today thechief function of the Writ is to compel the performance of publicduties prescribed by statute though it lies as well for the enforcementof a common law public duty. Lord Campbell C.J., in Ex-ParteNapier (6) at 695 stated that – “a legal obligation which is the proper
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substratum of a Mandamus can arise only from common law, statuteor some contract.”
Professor Wade in his book ‘Administrative Law’ 4th Edition, page603 correctly characterised this statement as a loose dictum whichneed not necessarily mean that Lord Campbell thought that Mandamuswas a remedy for a breach of contract. “Rights flowing merely froma contract of membership should not be within the scope of Mandamus"..The Court does not issue a Writ of Mandamus in a case in whichthe fight which the petitioner wants to enforce is based on a contract.Contractual duties are enforceable as matter of private law by theordinary contractual remedies, such as damages, injunctions andspecific performance. Duties enforceable by Mandamus arc thoseimposed by law. This is an application at the instance of severalpartners in a trading company to compel its co-partners in a tradingcompany to compel its co-partners to divide the profits, but that ismerely a private purpose and present a fit subject for inquiry onthe other side of the Hall. There is no instance in which the Courtshave granted a Mandamus to a trading corporation" – per Bayley.J. in King Vs. Governor & Co., Bank of England. (7)
The prerogative remedies of Certiorari, Prohibition; and Mandamuscover the field of governmental powers and duties. Modern Governmentis founded almost exclusively on statutory powers and duties vestedin public bodies and the regular method of enforcement of thoseduties is by way of Mandamus, if a public official refuses to performhis duties Mandamus is the proper remedy. But if an official of abody such as a trade union vested with no statutory power conductshimself in the same way this remedy is inapplicable. The rights ofits members are spent by their contract of membership and aresecured by the ordinary remedies of private law.
The Rules of a trade union are not statutory Rules and cannotbe equated to the regulations framed under section 52 of the ordinance.They are the terms of the contract of association between the membersof the union. In the course of his judgment in Bonsor Vs Musiciansunion, (1) Denning L.J. said of Trade Union rules – “They are morelike bye-laws than a contract.” Diplock L.J., and Upjohn L.J.. inFarasmus Vs Film Artists Association (8) dissented from this viewand stated that there was no true analogy between the rules of atrade union and the bye-laws of a public corporation and that theprinciple of ultra vires was not applicable to the rules of trade unions,as it would apply in the case of bye-laws. On appeal The House ofI .rrrE (*-1 ■ A F. R. page 25) approved this statement of the law.
St Ralnayaka and Others i'. C.D. Pereru and Others (Sharvananda, J.)459
In the relationship between union and members, or among themembers including the officials of a trade union, the constitution ofthe union occupies a position of primary legal importance. The rightsand obligations of the union are demarcated by the Rules. It is areflection of the fact that the trade union is a Voluntary associationthat the general principle governing its constitution is'that of freedomof contract. The union rules are all framed'freely’according to thewill of the members and their enforceability is governed by generalprinciples of the law of contract', a transgression of the rules iswrongful for the reason that it is a breach of the contract ofassociation, it is therefore open to an aggrieved member to seek hisremedy in private law; but since the rules do not involve performanceof a duty of public nature the remedy of Mandamus will not beavailable to him.- •.
Counsel for the petitioners referred to the powerful position oftrade unions in the operations of the welfare society of today: andto the momentous impact of their actions on the public at large. Onthis score Counsel contended that the public are interested in theperformance by the officials of the union,, .of their,, duties, $nd thathence those duties are of public nature. The fallacy in the argumentis manifest. The measure of a body’s potentiality to affect the publicat large cannot be the criterion for determining the legal status ofthe body whether it is a public or private b°dy.
Lord Denning's observations on the inadequacy of present legalremedies to counter the mischief resulting from group action isapposite here:
“In the 19th century the individual was predominant in ouraffairs, in the 20th century it is a group. The industrial sceneis dominated by groups – of employers on the one hand andemployees on the other. The nationalised undertakings of largecompanies control the destinies of thousands and spend millionsof money. The associations of workmen – organised officiallyand unofficially – exert enormous power over working menand women and have great impact on the daily lives of thepeople. Like the powers of government, these powers of thegroups are capable of misuse and abuse…. The trade unions
and employers’ associations are all voluntary associationsthey
wield tremendous power over every man and woman in theland. They can give or take away his or her right to work.They can put him or her on the dole. They can call strikesor other lock-outs. By so doing they can inflict widespread
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damage The- question at once arises: if these groups of
people abuse or misuse their power, can the Court of Law doanything tc restrain them? It is the most important questionaffecting society today. None of the old machinery of Certiorari,Mandamus or Prohibition is available against these groupsbecause they are not public authorities. If there is to be machineryit has to be newly designed and newly made” Lord DenningThe Discipline of Law at page 147 at 148.
In my view neither the "Lanka Guru Sangamaya”nor the respondentsits officials, are public bodies performing duties of a public nature.The duties that the petitioners want the three respondents to becompelled to perform by a Writ of Mandamus are not duties of apublic nature for which such a Writ will lie. They are contractualduties outside the ambit of Mandamus.
The activities of private persons, whether natural or juristic, areoutside the bounds of Administrative Law. Trade Exchange CeylonLtd., Vs. Asia Hotels Corporation Ltd. (9).
1 agree with the Court of Appeal that the petitioners have misconceivedtheir remedy. I affirm the judgment of that Court and dismiss theappeal with costs.
VICTOR PERERA, J., – I agree.
COLIN-THOME, Jv – I agree.
RATNAYAKE AND OTHERS v. C. D. PERERA AND OTHERS