015-SLLR-SLLR-1998-1-SHELL-GAS-COMPANY-v.-ALL-CEYLON-COMMERCIAL-AND-INDUSTRIAL-WORKERS-‘-.pdf
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SHELL GAS COMPANY
v.ALL CEYLON COMMERCIAL AND INDUSTRIALWORKERS' UNION
COURT OF APPEALJAYASURIYA, J.
C A. 587/97ARBC 1/1496/97JULY 24, 1997SEPTEMBER 1, 1997.
Writs of Certiorari and Prohibition – Arbitration record defective – Could the recordbe contradicted ? -Arbitrator biased – Grounds- Likelihood of bias or reasonablesuspicion of bias – S. 92 Civil Procedure Code – S. 114 Evidence Ordinance.
The petitioner-company sought to quash the appointment of the 2nd respondentas arbitrator made by the 3rd respondent Minister. The petitioner complains thatthe proceedings as recorded are defective and do not contain a true and accuratereflection of the matters pleaded and sought to tender an affidavit from itsManager, and further alleged bias.
Held:
It is irregular and improper to file a convenient and self serving affidavitin the Court of Appeal to add to the record and to amplify the record orto contradict the record.
There is no right in a litigant to demand that a Judge do disqualify himselffrom hearing the case but it is a matter for the exercise of the unfettereddiscretion of the particular Judge to do so, if he personally thinks in thecircumstances it is prudent to do so.
As regards bias, the burden on a person seeking to show reasonable causeis to satisfy the objective test on a balance of probability, the criterion isobjective and not subjective.
An APPLICATION for Writ of Certiorari/Prohibition.
CA
Shell Gas Company v. All Ceylon Commercial and Industrial
Workers' Union (Jayasuriya, J.)
119
Cases referred to:
Jayaweera v. Assistant Commissioner of Agrarian Services Ratnapura -1996 – 2 SLR 70.
Vannakkar and 6 others v. Urhuma Lebbe 1996 – 2 SLR 73.
King v. Jayawardena – 48 NLR 489 at 503.
Gunawardena v. Kellart – 48 NLR 522.
Seebert Silva v. Aroana Silva – 60 NLR 272 at 275.
Sameen v. Abeywickrema – 61 NLR 442.
ABN-AMRO Bank NV v. Conmix (Pvt) Ltd. and others – 1996 1 SLR 8at p. 14.
Kumarasena v. Data Management Systemes Ltd., 1987 2 SLR 190
Hoggton v. Hoggton – 2 WNT 849.
Nadarajah v. Krishnadasan (DB) – 78 NLR 255.
Metropolitan Properties Company v. Lannon – 1968 3 All ER.
Negombo South Fishermen's Co-operative Society Ltd. v. TheCo-operative Employees Commission – CA 590/91 C.A.M. 2.10.85.
In Re Ratnagopal – 70 NLR 409.
Faiz Musthapa, PC with Nigel Hatch and Sanjeewa Jayawardena for thepetitioner.
Ms. Chamantha Weerakoon-Unamboowe with Ms. Dilhani Perera for the 1strespondent.
Cur. adv. vult
September 17, 1997
JAYASURIYA, J.
The petitioner-company in its application for the issue of a mandatein the nature of a writ of certiorari and prohibition has prayed, interalia, that this court be pleased to issue a mandate in the nature ofa writ of certiorari quashing the appointment of the second respondentas arbitrator made by the Minister of Labour (vide document markedP5), and also quashing the determination, decision and order of thesecond respondent-arbitrator dated 26.3.97 as contained in documentmarked P13 and for a writ of prohibition prohibiting and restrainingthe second respondnet-arbitrator from inquiring into and determiningthe aforesaid dispute referred to him by document marked P5.
The petitioner has produced marked as P9 the proceedings andorders made by the second respondent-arbitrator on 12. 6. 97 andthe proceedings and orders made by the arbitrator on 23. 6. 97 asP13. The proceedings P9 contains the following recording: "that the
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representatives of the parties had discussions before the arbitrator inregard to the dispute referred to, for the purpose of arriving at asettlement." In paragraph 22, of its petition the petitioner complainsthat the proceedings of 12. 6. 97 as recorded in P9 are "defectiveand do not contain a true and accurate reflection of the matterspleaded herein" and has attempted to tender to this court an affidavitsworn to by Nihal de Silva, its Manager, Personnel and HumanResources Division marked P10, a fax message from the said NihalSilva to Messrs. Julius & Creasy marked as P10A and a facsimilemessage from its Attorney-at-law marked P11. It is significant thatthe petitioner has not tendered the aforesaid affidavit and otherdocuments before the arbitrator and made an application to add to,amplify and correct the proceedings conducted on 12. 6. 97.
Our courts have constantly drawn the attention of learned counselthat it is not open to a petitioner to file a convenient and self-servingaffidavit for the first time before the Court of Appeal and thereby seekto contradict a judicial or a quasi-judicial record and that if a litigantwishes to contradict the record, he ought to file the necessary papersbefore the court or tribunal of first instance, initiate an inquiry beforesuch authority, obtain an order from the deciding authority of firstinstance and thereafter raise the matter in appropriate proceedingsbefore the Appeal Court so that the appellate court would be ina position on the material before it to make an appropriateadjudication with the benefit of the order of the deciding authority inthe first instance. Vide Jayaweera v. Assistant Commissioner,Agrarian Services, Ratnapura(1>; Vannakar v. Urhuma Lebbe& ;King v. Jayawardena® at 503 ; Gunawardena v. Kelaart*41.
It is irregular and improper for a petitioner to file a convenient andself-serving affidavit in the Court of Appeal seeking to add to the recordand to amplify the record or to contradict the record. Justice Diasin King v. Jayawardena (supra) after a review of a series of decisions,held that no party ought to be permitted to file a self-serving andconvenient affidavits to contradict or to vary the record. In Vannakar'scase, (supra) the Court of Appeal Judge observed : "If the party hadtaken such steps to file papers before the presiding officer of the courtof first instance, then an inquiry would be held by him and the self-serving statements and averments would be evaluated after cross-examination of the affirmant when he gives evidence at the inquiry.If such a procedure was adopted the Court of Appeal would have
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the benefit of the recorded evidence which has been subjected tocross-examination and the benefit of the findings of the judge of thecourt of first instance. When such a procedure is not adopted, JusticeDias ruled that the Court of Appeal could not take into considerationself-serving and convenient averments in the affidavit to contradict orvary the record".
It is manifest that in this matter no such effort was made by thepetitioner and its legal advisers to file an application with affidavitsbefore the arbitrator and seek to amplify and add to the record ofproceedings held on 12. 6. 97. Even on a perusal of the proceedingsof 23. 6. 97, it appears that a motion had been filed on behalf ofthe petitioner and in that motion there was no attempt made toadd to and amplify the proceedings held on 12. 6. 97. But certainaverments were made in regard to the making of certain allegedobservations by the arbitrator and the petitioner merely moved thatthe arbitrator be pleased not to proceed to inquiry into the matter indispute in order to enable the parties to have the matter in disputereferred to such other arbitrator as the Minister of Labour maybe pleased to appoint Thus, there was no motion nor an applicationmade before the arbitrator to add to and amplify the proceedingsconducted on the 12th of June, 1997.
In regard to the motion that the petitioner-company was not satisfiedwith the conduct of proceedings held on 12. 6. 97, and that thereforethe arbitration inquiry be not commenced before the secondrespondent-arbitrator, the second respondent-arbitrator has held thathe does not accept the matters urged by learned counsel who appearedfor the petitioner.
There was some argument at the bar in regard to the interpretationof the Sinhala expression: ’d® sSeso 0®£ateid2sod oStioe® j&SeqOdcsa58aftsdjn®® 8§ sjnDozS®.” appearing in the
said order. A perusal of the proceedings of the 12th of June, 1997and of the 23rd of June, 1997 and a consideration of the order clearlyestablishes that the learned counsel for the petitioner has erred infailing to make an application to add to and amplify the proceedingsof 12. 6. 97 before the arbitrator on 23. 6. 97.
Learned president's counsel contended that it was open to thepetitioner-company to rebut the presumption of accuracy and regularityof the proceedings of the 12th of June, 1997 by filing the affidavit
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marked P10 from the Manager of the petitioner-company. He reliedon the decision in Seebert Silva v. Aroana Silva® at 275 and thedecision in Sameen vs. Abeywickrema®. In Seebert Silva's case, thejudgment of the Divisional Bench was delivered by Justice K. D. deSilva. In the course of his judgment at page 275, Justice K. D. deSilva remarked thus: "Section 92 of the Civil Procedure Code providesfor the maintenance of a journal in which shall be minuted, as theyoccur, all events in the action and the journal so kept shall be theprincipal record of the action. A journal has been maintained in thisaction and the court is entitled to presume that it was regularly keptThis presumption which arises under section 114 of the EvidenceOrdinance is based on the maxim – omnia praesumuntur rite etsolemniter esse actae. This presumption is, of course, rebuttable butthe respondents on whom is the burden have not placed before thiscourt sufficient material to rebut it".
Justice Mark Fernando in the Amro Banff* decision, at page 14,refers to the aforeasaid Divisional Bench decision when he dealt withthe possibility of rebutting the correctness of a journal entry. In thisinstance we are not concerned with the journal entry, but we areconcerned with events that took place in the course of proceedingsand Justice Mark Fernando emphasizes that it is only in exceptionalcircumstances and in extreme situations that even the correctness ofa journal entry could be rebutted by a party. Inasmuch as the presentpetitioner has not adopted and pursued the course of action spelt outin the decision in Vannakar v. Urhuma Lebbe (supra), I hold thatthe petitioner-company is not entitled to amplify and add to theproceedings of the 12th of June, 1997 by filing a self-serving andconvenient affidavit, as it has done through its Manager. It would beopen to the petitioner to scrupulously follow the procedure spelt outin the said cases of Jayaweera v. Assistant Commissioner of AgrarianServices, Ratnapura (supra) and in Vannakar v. Urhuma Lebbe (supra)before the second respondent-arbitrator and, thereafter, to file a freshapplication before the Court of Appeal so that the Court of Appealwould have ample material before it to adjudicate upon the petitioner-company's fresh application.
This determination is sufficient for the disposal of the presentapplication. However, learned president's counsel contended that thepetitioner-company is invested with the legal right to demand that thesecond respondent-arbitrator do disqualify himself from hearing and
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determining the said dispute. He relied on the decision in Kumarasenav. Data Management Systems Ltd.<a> In this matter I have alreadyheld that the petitioner-company has not proved in a legal and propermanner its assertions. It is to be emphasized that Justice Goonewardenain Kumarasena v. Data Management Systems Ltd. (supra) expresslydesisted from making the order prayed for by the petitioner upon thatapplication. Justice Goonewardena on that occasion emphasized that"any other order, it must also be observed, would open the floodgates to a multitude of similar applications by parties dissatisfiedwith some incidental order made by the judge or otherwise unhappywith the case continuing before him anxious to take it elsewhere''.What must be stressed is that Justice Goonewardena, on thatoccasion, deliberately refrained from making an order that furtherproceedings in that case should not be taken by the particular judge.However, he remarked that it would be open to the particular DistrictJudge in the exercise of his unfettered discretion to disqualifyhimself from hearing the case. Justice Goonewardena, in this context,remarked thus : "It is, however, open to the District Judge if he thinksit prudent to do so having regard to the lack of confidence in hisimpartiality expressed by one of the parties to disqualify himself anddirect that further proceedings be had before another, taking also intoaccount that if he were to hold against the party so complaining, atthe conclusion of the trial he could leave himself open to the furthercharge of prejudice against such party consequent upon such alle-gation being made". Thus, it is evident there is no right in a litigantin such circumstances to demand that a judge do disqualify himselffrom hearing the case but it is a matter for the exercise of theunfettered discretion of the particular judge to do so, if he personallythinks in the circumstances it is prudent to do so. I
I have already observed that the petitioner-company has adoptedan improper procedure upon this application to add to and amplifythe proceedings of 12th June 1997 held before the second respondent-arbitrator. Thus, there is no legal proof in the legitimate manner ofthe facts asserted by the petitioner-company. Nevertheless, it is relevantto refer to the appointment of the arbitrator and the making of thereference of the dispute to the arbitrator in considering the firstrespondent's contentions. P5 establishes that the Minister of Labour,in pursuance of the powers vested in him by section 4 (1) of theIndustrial Disputes Act, has referred the dispute in question to thesecond respondent for settlement by arbitration. When such matter
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is taken up for settlement by arbitration, it is the recognised and legalpractice to proceed to conciliation in the first instance and in theprocess of conciliation representations are made by the parties andstatements are made by the arbitrator with the intention of arrivingat a settlement. If a settlement by conciliation recedes, then the matteris taken up for adjudication on a consideration of evidence. Thesecond respondent, who is an experienced lawyer and a Presidentof a labour tribunal, would be conversant with the principle that allnegotiations, representations and submissions made during the proc-ess of conciliation can never be looked into and taken into consid-eration if the negotiations fail to produce the necessary result. AsLord Mansfield has often observed: "All men must be permitted tobuy their peace without prejudice to them should the offer not suc-ceed". Vide Taylor on Evidence. Thus, in consonance with the policyof the law courts of law will be disposed to infer that the parties didnot intend evidence to be given of facts communicated in the courseof and on the faith of pending negotiations". Vide Hoggton v. HoggtonI am of the view that the arbitrator, with his legal qualifications andexperience would have been aware of these principles of law. Hehas expressly stated in his order dated 23. 6. 97 that it is the dutyof the arbitrator when a matter is referred to him for settlement byarbitration, to resort to conciliation between the parties to arrive ata settlement of the dispute. He has stated that if the efforts to arriveat a settlement by conciliation recede into failure, thereafter the arbitratorwould proceed to arrive at an adjudication. Thus, whatever was utteredby the parties and whatever was stated by the arbitrator on suchmatters would not engage the attention to the arbitrator when heproceeds to an adjudication on a consideration of the evidence placedbefore him. It is implicit in his order that whatever has transpiredin conciliation proceedings would not influence or affect hisdeterminations to be arrived at on an adjudication on a considerationof the evidence.
At the hearing of this application, learned counsel appearing forthe first respondent trade union forcefully and eloquently argued thatthe instant application was a veiled and disguised attempt to revokethe said reference to arbitration and change the arbitrator at the whimsand fancies of the agents of the petitioner-company. She stressedthat prayer B of the petition seeks an order to quash the appointmentof the second respondent as arbitrator. She contended that once areference is made to an arbitrator for the settlement of a dispute, theMinister himself has no power to revoke the said order of reference.
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This contention is well founded. Vide the decision in Nadarajai. v.Krishnadasanfw). Justice Sharvananda having considered the schemereflected in the provisions of the Industrial Disputes Act, held that"having regard to the scheme of the Act the Minister of Labour doesnot come into the picture once he had made a reference under section4 (1) of the Industrial Disputes Act and he cannot frustrate suchreference on second thoughts. That arbitrator proceeds with the ref-erence without interference and directions from the Minister. Once hehas acquired jurisdiction over the dispute between the parties, theMinister cannot divest himself of that jurisdiction". The learned counselfor the first respondent contended although the Minister of Labour hasno right to revoke a reference once made, the petitioner-company isseeking indirectly upon this application to change the Arbitrator, whichattempt this court will certainly thwart.
In paragraph 27E, of the petition, the petitioner has stated thatthe petitioner has lost confidence in the second respondent-arbi-trator and has substantial and credible grounds to believe that therewould be a denial of justice if the second respondent were to continueto inquire into and determine the said dispute. In paragraph 27C, thepetitioner has stated that the said arbitrator is disqualified in law fromhearing or determining the said dispute on the grounds of bias. Inlaw what is material is not the subjective belief and the standard ofthe petitioner himself. On the issue of bias, Lord Denning, Master ofthe Rolls in Metropolitan Properties Company v. Lannorf"> outlinedthe test to be applied in determining the issue of the likelihood ofbias in the following terms : “In considering whether there was a reallikelihood of bias, the court does not look at the mind of the justicehimself … It does not look to see if there was a real likelihoodthat he would or did in fact favour one side at the expense of theother. The court looks at the impression which would be given to otherpeople. Even if he was as impartial as could be, nevertheless, ifright minded persons would think that in the circumstances therewas a real likelihood of bias on his part, then he should notsit. . . There must appear to be a real likelihood of bias. Surmiseor conjecture is not enough . . . there must be circumstances fromwhich a reasonable man would think it likely or probable thatthe justice… would or did favour one side unfairly at the expenseof the other. The court will not inquire whether he did in factfavour one side unfairly. Suffice it that reasonable people mightthink he did". The reason is plain enough. Justice must be rooted
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in confidence… and the confidence is destroyed when right mindedpeople go away thinking – "the Judge was biased", (at page 707).
Lord Denning has laid down the test in such clear terms and Istate with respect that this is a correct statement of the law. In thecircumstances, I am unable to agree with the dicta of Justice SivaSelliah expressed in the decision in Negombo South Fishermen'sCo-operative Society Ltd. v. The Co-operative Employees' Commis-sionf12) when His Lordship stated that : “Manifestly the purpose ofinquiry is lost if the second respondent had no confidence in theinquiring officer" . His Lordship Justice Siva Selliah proceeded tostate "at the hearing held before us, it has been conceded that biashas been alleged by the second respondent against the inquiringofficer Mr. Ranasinghe and there was no purpose in holding thatinquiry. We are in agreement with the view that manifestly the purposeof an inquiry is lost if the second respondent had no confidencein the inquiring officer. In the circumstances we quash all theproceedings and determinations and send this case back for theappointment of another inquiring officer". Justice Siva Selliah erredwhen he adopted a subjective test. The correct test to be appliedis the objective test as enunciated by Lord Denning in MetropolitanProperties Company Ltd. case, (supra)
That the criterion is objective and not subjective is put beyond alldoubt by Justice T. S. Fernando in re Ratnagopaf131 when His Lordshipobserved : "The proper test to be applied is, in my opinion, anobjective one and I would formulate it somewhat on the followinglines : Would a reasonable man in all the circumstance of the casebelieve that there was a real likelihood of the Commissioner beingbiased against him? I agree with the respondent's counsel that theburden on a person seeking to show reasonable cause is to satisfythis objective test on a balance of probability." Though Justice T. S.Fernando was dealing with a case where a person had been calledupon to show cause for his refusal to be sworn as a witness underSection 12 (1) of the Commissions of Inquiry Act, yet the principleenunciated would be applicable to the present situation where thepetitioner-company is complaining of bias on the part of a personacting in a quasi-judicial capacity.
The reasonable man in the application of the objective test wouldcertainly consider the incidents, implications and the import of the
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process of conciliation embarked upon by the second respondent-arbitrator, in determining the issue of the likelihood of bias.
I hold that there has been no legal proof of bias or likelihood ofbias or reasonable suspicion of bias adduced on an objective stand-ard against the second respondent-arbitrator in the circumstances ofthis application. For the aforesaid reasons, I refrain from issuing noticeof this application on the respondents and I refuse the applicationof the petitioner-company without costs. But I reserve the right of thepetitioner-company to take the legal course of action spelt out by mebefore the arbitrator and thereafter to file another application for awrit of certiorari seeking relief, if it is so advised. Application isdismissed with costs in a sum of Rs. 2,100/- payable by the petitioner-company to the first respondent.
Notice Refused.