“ workman ” means any person who has entered into or works underj a contract with an employer in any capacity, whether the contract isi expressed or implied, oral or in writing, and whether it is a contract ofservice or of apprenticeship, or a contract personally to execute anywork or labour and includes any person ordinarily employed under anysuch contract whether such person is or is not in employment at anyparticular time, and, for the purposes of any proceedings under thisAct in relation to any industrial dispute, includes any person whoseservices have been terminated.
2*—R 3800 (7/62)
54SANSONI, «T.—Ceylon Bank Emjiloyccs Union v. Yatawara
He pointed out that although in the clause defining “ industrial dispute ”the word “ workmen ” includes “ a trade union consisting of workmen ”,the clause does not say that the word “ employers ” includes a trade unionof employers. He urged that the definition of “ employer ” cannotinclude a trade union of employers in the sense of a trade union whosemembers are employers: and that it can, as framed, only mean a tradeunion which is a separate employer in itself. He relied on the juxta-position of the words “ firm, company, corporation ”, each of whichcould form a body of employers having its own employees, and arguedthat a trade union having its own employees could in that sense be anemployer, and in no other sense. He would, in other words, treat thewords “trade union” as eiusdem generis with “firm, company orcorporation ”. Each Bank was a separate employer, and he argued thatas there were nine banks in the Commercial Banks Association there shouldbe nine separate references in their case. He excluded the possibility ofthe Commercial Banks Association being treated as an “ employer ” asthe definition now stands. He did not concede that the Association couldcome within the phrase “ body of employers ” since, he submitted, thewords within brackets show what the draftsman meant. In short, hisobjection was that the statute did not contemplate the Commercial BanksAssociation being a party to a reference, and consequently there was novalid reference into which an Industrial Court could inquire.
Mr. Ponnambalam ’ s reply was that the Act contemplates a TradeUnion of several independent and distinct employers representing itsmembers and being a party to an industrial dispute. Where such aUnion takes up a dispute it can bo a party to a reference. He alsostressed the phrase “ body of employees” and the presence of the words“ trade union ” in the bracketed clause, and argued that the CommercialBanks Association, which is a body of employers and a Trade Unionof employers would fall within those words. He referred to severalsections of the Act, and to some of the regulations made by the Ministerby virtue of the powers vested in him by section 39, in supportof his contention. Confining the references to that Part of the Actwhich deals with Industrial Courts, he mentioned section 24 (3) whichprovides that reference shall be made in every award of an IndustrialCourt to the parties and Trade Unions to which, and the employersand workmen to whom, such award relates. Section 26 provides thatevery award shall be binding on the parties, Trade Unions, employersand workmen referred to in that award. Section 27, which deals withreconsideration of an award, in' proviso (6) enacts that where a TradeUnion is, or is included in, a party bound by ah award, no applicationin respect of that award made independently of that Trade Union byany employer or workman who is a member of that Trade Union, shallbe entertained by the Minister. The proviso to section 36 (5) contem-plates an employer, who is a member of a Trade Union which is a partyto proceedings before the Court, raising a matter relating to the
SANSONI, J.—Ceylon Sank Employees Union v. Yatawara
dispute. Section 46 (3) (6), which deals with representation before theCourt, again refers to employers who are members of a Trade Unionwhich is a party to a proceeding.
Amongst the regulations, he referred to regulation 37 (a) which providesfor the service of notices, summons, etc. In the case of an employersuch notices can be effected (1) on the employer himself (2) where theemployer is represented by a Trade Union, on the President or theSecretary or any other officer of such Trade Union, (3) where theemployer is an incorporated body, on any Director, manager or otherprincipal officer of such body, (4) where the employer is a firm, on anypartner of the firm. This regulation, he pointed out, seems to havebeen framed in the light of the definition of “ employer ” in section 47of the Act, for it refers to (1) an individual employer, (2) a Trade Unionrepresenting an employer, (3) an employer which is a company orcorporation, and (4) an employer which is a firm such as a partnership.
Mr. de Silva, in reply to these arguments, analysed many of the provi-sions of the Trade Unions Ordinance, Cap. 138, the Wages BoardsOrdinance, Cap. 136,'and the Industrial Disputes Act in its originaland present form. He stressed that a Trade Union of employers neednot be a parly to an industrial dispute, though it can be addedas a party pending proceedings after the inquiry begins. It can also bea party likely to be affected or bound by a dispute, and it can bementioned in an award. I think Mr. de Silva conceded that the structureof the Industrial Disputes Act appeared, in some parts, to support theview that a Trade Union of employers could be a party to an industrialdispute. I do not see why one should not look at the whole Act beforearriving at the meaning of words which are defined in the interpretationsection, if there is any uncertainty about the matter. The other parts“ throw light on the intention of the Legislature and may serve to showthat the particular provision ought not to be construed as it would bealone and apart from the rest of the Act.” I
I hope I will not be thought discourteous if I do not set out andexamine more closely Mr. de Silva’s detailed argument. But I am byno means satisfied that the definitions in section 47 preclude a TradeUnion consisting of independent employers from being made a partyto a dispute. The argument that the definition of the phrase “ industrialdispute ” does not specifically refer to a Trade Union of employers ismetjby the fact that the word “employer” as already defined has such areference. The word “workman”, on the other hand, had yet to bedefined and the draftsman could have placed it either in the definitionof “ industrial dispute ” or in the definition of “ workman ” : he chosethe former course. The numerous references in the Act to Trade-Unionsconsisting of employers show clearly that such a concept was wellknown to the draftsman. It also points to the words “ trade union ”having a wider import than Mr. de Silva gave to them.
SANSONI, J.—Ceylon Bank Employees Union v. Yatawara
It is legitimate and proper, -when construing the word “ employer ”,to do so not by talcing the definition by itself but by reading the Actas a whole, looking at its general purpose, and asking oneself the ques-tion “ In this statute, in this context, relating to this subject matter,what is the true meaning of that word ”? : see the judgment of LordGreene, M.R. in in re Bidie 1. The rule is that the word alone should >not be looked at when one is trying to arrive at its meaning, nor onlyits definition as given in the Act. One must also look at the context,and arrive at the meaning according to what would appear to be itsmeaning in that context. “ Context ” in its widest sense means “ otherenacting provisions of the same statute, its preamble, the existing stateof law, other statutes in pari materia, and the mischief which Ican, by those and other legitimate means, discern .the statute wasintended to remedy”: see the judgment of Viscount Simonds inAttorney-General v. Prince Ernest Augustas of Hanover2. It should benoted also that the interpretation section 47 begins “ In this Act, unlessthe context otherwise requires ”.
Apart from these considerations, however, when one analyses thedefinition of the word “ employer ”, one finds that its first meaning is“any person who employs”, and the third meaning is “ a body ofemployers (whether such body is a firm, company, corporation or tradeunion) ”. Now a person can be either a natural person or an artificialor legal person. A company or corporation can be a person. Thus, whenwe come to the phrase “ body of employers ”, a body of Banks, each ofwhich employs workmen, would come within that phrase, and the words“ trade union ” within the brackets would include such a body of Banks.Mr. de Silva sought to confine the meaning of” trade union ” to a TradeUnion as a particular kind of employer, analogous to a firm, company orcorporation. To arrive at that result one would have to exclude arti-ficial persons from the conception of “person ” and ‘‘employer ” in thedefinition ; one would also have to give the phrase “ trade union ” a very,restricted meaning, and treat it as only being a species of the genus firm,company or corporation. If, however, one includes artificial persons asfalling within the words “ person ” and “ employer ”, and if one reads thewords in brackets disjunctively rather than according to the eiusdemgeneris rule, the Commercial Banks Association would clearly fall withinthe meaning of the word “ employer ” as defined in section 47. I hold, .having regard to the purpose of the Act, its different provisions to which Ihave referred, and the result produced by an examination of the defini-tion of the word itself in section 47, that the Minister’s order was valid,and that the industrial dispute was properly referred to the IndustrialCourt. The Industrial Court, therefore, has jurisdiction to inquire intothe dispute.
It is, of course, not open to doubt that the Union was entitled to attackthe jurisdiction of the Court, by trying to show that what was referred bythe Minister was not an industrial dispute within the meaning of the1 {1940) Ch. 121.2 {1957) A. C. 436.
SANSONI, J.—Ceylon Bank Employees XJnion «. Yatawara
Act. It was also within the inherent power of the Court, when the ques-tion was raised, to see whether the dispute was one which fell within itsjurisdiction, for if it did not so fall it would have no power to adjudicateon the dispute. It is clear that a Tribunal of specialjurisdiotion createdby a statute can only act if the terms contained in the statute giving itjurisdiction are complied with. If they are not complied with, thejurisdiction does not arise.
But the “ factual existence and the expediency of making a referencein the circumstances of a particular case are matters entirely for theGovernment to decide .upon, and it will not be competent for this Courtto hold the reference bad and quash the proceedings for want of juris-diction because there was, in its opinion, no material before theGovernment on which it could have come to an affirmative conclusionon those matters ” : see The State of Madras v. C. P. Sarathy andanother 1. I refer to this as it was a matter of complaint made by theUnion, both before the Industrial Court and before me, that the Govern-ment unreasonably thrust itself betwen the Union and the Banks whenthey were in the process of arriving at a voluntary agreement, when itshould not in this way have attempted to force them to resolve theirdifferences. I also quote the following passage from the concludingparagraph in the judgment of Patanjali Sastri, C.J. in that case : “ Inview of the increasing complexity of modem life and the interdependenceof the various sectors of planned national economy , it is obviously in theinterestsof tho-public that labour disputes should be peacefully and quicklysettled within the framework of the Act rather than by resort to methodsof direct action which are only too well calculated to disturb public peaceand order and diminish production in the country, and Courts should notbe astute to discover formal defects and technical flaws to overthrow suchsettlements. ” The Act envisages an industrial dispute being referred toan Industrial Court for settlement, for those are the very terms of section4 (2); its title is an Act “ to provide for the prevention, investigation andsettlement of industrial disputes ”. This Court cannot pronounce on thedesirability or otherwise of letting the contestants in an industrial disputework out their own solution in the knowledge that no settlement can everbe imposed by a statutory Tribunal. The Act empowers an IndustrialCourt to make an award which may appear to it to be just and equitable,and such an award is binding and enforceable, though provision has alsobeen made for its reconsideration.
Mr. de Silva urged that the Bank of Ceylon has salary scales differentfrom those of the other Banks, while those other Banks themselves haveno uniform salary scale. He adduced this as an argument against theconsolidation of this dispute to which the Bank of Ceylon and theCommercial Banks Association had been made parties. Mr. Ponnam-balam, on the other hand, submitted that the dispute referred raisedquestions common to all the Banks, and there was no reason why thedispute should be separated into smaller compartments. The definitionof “ industrial dispute ” does not limit a reference to one which
1 A. I. R. (1963) S.C. 53.
58SANSONI, J.—Ceylon Bank Employees Union v. Yatawara
concerns a single employer and his workmen. It contemplates a disputeinvolving more than one employer on the one hand and their workmen onthe other. I cannot see anything undesirable or unfair in a compositereference, the object of which would be to bring about uniformity interms and conditions of service in the Banking industry. The terms of ;reference here show that there was a dispute which was identifiable asa common dispute, and it is surely more desirable that there should be, if •it were legally permissible, one inquiry which would be so much more •expeditious than ten inquiries. It is significant that a particular matterwhich concerned only the Chartered Bank was not referred to the Court. ,It was omitted because, I suppose, it was not a matter which was commonto all the Banks.
The next point raised by Mr. de Silva was with regard to the Bank ofCeylon being made a party in the order made by the Minister. Hesubmitted that the order was invalid on this account, because the Bankof Ceylon is, since the passing of the Finance Act No. 65 of 1961, virtuallya Government Department. In this view he contended that section48 of the Industrial Disputes Act made the order bad.
Section 4S reads :
“ Nothing in this Act shall apply to or in relation to the Crown or
the Government in its capacity as employer, or to or in relation to a
workman in the employment of the Crown or the Government.”.
His argument was that the employees of the Bank of Ceylon areworkmen in the employment of the Government. In support of thisargument he relied on certain provisions of the Finance Act. Bysection 2, all the ordinary shares of the Bank of Ceylon became vestedin the Government. Yet section 11 provides that the Bank shall bedeemed not to have ceased to be a Corporation under the Bank of Ceylon'Ordinance. He submitted that this was only a matter of form, for insubstance the Government is the employer of all the workmen in theBank and for the purposes of the Industrial Disputes Act they are,Government servants. He next pointed to the powers of theMinister who has the right, under section 8, to appoint and to removeall the Directors of the Bank except for the ex officio Director, who isthe Secretary to the Treasury for the time being. He pointed outthat under section 5 the Secretary to the Treasury has the power toissue directions with regard to certain kinds of business which had beendone prior to the date of commencement of the Act. He drew attentionto section 10 which enables the Minister to make regulations for thepurposes of carrying out the princijdes and provisions embodied inPart I of the Act. The Government, he submitted, had entered a fieldformerly ocoupied by private enterprise, and the true character of theBank was that of a Government Department.
Mr. Alles, in reply, urged that the staff of the Bank is not appointedby the Government but by the Board of Directors. The Directors arenot the agents of the Government but of the Corporation, and the Bank
SANSONI, J.—Ceylon Bank Employees "Union v. Yatawara
continued as a Corporation under the Bank of Ceylon Ordinance byvirtue of sections 10 and 11 : no new Corporation was created, althoughthe Minister would have more powers of control. The regulations thatmay be framed would not be directives to the Directors but would onlybe concerned with questions of policy.
Obviously each Corporation, and the terms of the Statute governingit, must be the subject of scrutiny when the question of its true characteris raised. For instance, a Corporation to which the State IndustrialCorporations Act, No. 49 of 1957, applies is of a widely different sortfrom the Bank of Ceylon. Once the principles applicable to the deter-mination of the question are known, the character of the particularCorporation can be decided.
In Tamlin v. Harmaford1, Denning, L.J. after pointing out thatministerial control over such a body as this is insufficient to make it aservant or agent of the Crown, said : “ When Parliament intends that anew Corporation should act on behalf of the Crown, it as a rule says soexpressly, as it did in the case of the Central Land Board by the Town
and Country Planning Act, 1947In the absence of any
such express provision, the proper inference, in the case, at any rateof a commercial Corporation, is that it acts on its own behalf, eventhough it is controlled by a Government Department.” He also pointedout that in the eye of the law the Corporation (in that case the BritishTransport Commission) is its own master, it has none pf the immunities orprivileges of the Crown, its servants are not civil servants, and itsproperty is not Crown property. The same observations may properly,I think, be made about the Bank of Ceylon.
There is also the instructive judgment of Rajagopala Ayyangar, J. inNarayanaswamy Naidu v. Krishnamurthi2, which dealt with the LifeInsurance Corporation of India. The learned Judge quoted the followingpassage from an article by Professor Wade in Current Legal Problems,1949 : ” The public Corporation, as an agency distinct from the usualform of Government Department over which a political Minister presides,has evolved in its modem guise from the need for resolving two conflictingconsiderations; (a) the demand for some form of State intervention(6) the resistance to a form of nationalisation which would involve directadministration by the Civil Service. Hence the constitutions of theseState agencies have been influenced by the desire to safeguard some of thefeatures of private enterprise and to avoid the closer control necessarilyinvolved in direct administration by the State. ”
The tests for determining the constitutional position of such a-Corporation laid down by the learned Judge are :
„ (1) The incorporation of the body, though not determinative, is of somesignificance as an indication by Parliament of its intention tocreate a legal entity with a personality of its own distinot from
the State.
* (I960) 1 K.,B. 18.
• A. I. R. 11958) Madras 343.
SANSONI, J.—Ocylon Bank Employees Union v. Yatawara
The degree of control exercised by the Minister over the functioning
of the Corporation is a very relevant factor, a complete depen-. dencc on him marking it as really a governmental body, while.. comparative freedom to pursue its administration is treated asan element negativing an intention to constitute it aGovernment agent.
The degree of dependence of the Corporation on the Government
for its financial needs.
Guided by these authorities and applying them to the provisions of theFinance Act, No. 65 of 1961, I hold that the Bank of Ceylon is not aGovernment Department, and that section 48 has. not been contravenedby the inclusion of the Bank of Ceylon as a party to this industrialdispute.
The next point raised by Mr. de Silva was that the Industrial Courthad no power to entertain the application made on behalf of the Batiksfor its approval in writing to terminate the services of, or punish in anyother way, their employees who were on strike. He raised several otherobjections to the validity of the order made by the Court on these appli-cations. The first objection was that the notice filed by the proctors forthe Commercial Banks Association, was not on behalf of the individualBanks, and as the Association had no employees to be dealt with in thatway tiie notice was bad. The Association, as the Union representingits individualmembers, was entitled to give the notice. But it must notbe overlooked that the notice mentions that the application will be made onbehalf of the members of the Association for permission in writing to ter-minate the services of or punish all or any of the employees employed bymembers of the Association. The second objection was that the noticesreferred to all or any employees who went on strike and were continuingto strike, without specifying their names. It is true that the strikers arereferred to as a class ; the class comprising every employee who struckand was continuing to strike. I do not think it was necessary to mentioneach employee by name, since both the employee and the employer wouldknow who was intended. The third objection was that nothing was speci-fied as to what punishment, if any, was to be inflicted ; indeed, as appearsfrom the proceedings before the Industrial Court, no decision on thisquestion had been taken by any Bank. In this connection, my attentionwas invited to the word “ approval ” to be found in section 40 (1) (p).
Section 40 (1) (p) reads :
“ Any person who being an employer, after an industrial dispute inany industry has been referred for settlement to an industrial court,or for settlement by arbitration to an arbitrator, but before an award inrespect of such dispute has been made—
,(i) terminates the services of, or punishes in any other way,
without the approval in writing of such court or arbitrator, anyworkman concerned in such dispute, for any act or omission connectedwith, arising from, or constituting or included in such dispute, or
SA2JSONI, J.—Ceylon Bank Employees Union v. Tatawara
(ii) in regard, to any matter connected with such dispute, alters,to the prejudice of any workman concerned in such dispute, theconditions of service applicable to such workman immediatelybefore the reference of such dispute to such court or arbitrator,shall be guilty of an offence under this Act. ”
Mr. de Silva submitted that the appropriate word would have been"permission ” if what was contemplated by the Act was a lifting of theban against action on the part of the employer, as contrasted with" approval ” which could only refer to action which had alreadybeen decided upon.
This ground of objection raises a large question as to the meaning andeffect of section 40 (1) (p), which occurs in a section dealing with offencesmade punishable under section 43 of the Act, and I think I should make afew preliminary observations. Section 40 provides that any person whocommits any of the numerous offences specified in that section, one ofthem being an offence described in section 40 (1) (p), shall be guilty of anoffence under the Act. The purpose underlying this provision is to pre-serve the status quo pending proceedings ; to protect workmen concernedin a dispute against victimisation by the employer for having raised, orfor continuing, those proceedings. Another purpose is to maintain apeaceful atmosphere until those proceedings are concluded by an award.It will be noticed that, unlike in India where section 33 of the IndustrialDisputes Act, 1947, in terms imposes a ban on the employer taking anyaction against the workman, our Act only makes it a criminal offence totake such action unless approval in writing is obtained. Nevertheless,
. there is an implied ban in section 40 (1) (p), which also provides for theremoval of that ban by the granting of approval by the Court or arbitrator.
One thing is clear, and it is that this is a provision dealing only with thecriminal liability that will be incurred by an employer who takes certainaction against a workman pending the proceedings, and which providesthat in order to avoid such liability he must get the approval of the parti-cular tribunal which is inquiring into the dispute. It is open to thattribunal to grant or to refuse its approval, acting entirely in its discretion.Before making its order it could hear evidence if it so desired, or it couldonly hear arguments. The circumstances of the particular case willundoubtedly decide what course it will adopt. It will be dealt with as anincidental matter brought up by an employer who wishes to protect him-self against criminal liability. But the workman or workmen with regardto whom the approval is being sought must undoubtedly have notice ofthe application, in order that they might be heard before it makes its orderon the application. Here I disagree with Mr. Bonnambalam who arguedthat the employee concerned need not have notice because, he submitted,nothing may eventually be done by the employer and in that event noprejudice will be suffered by the employee. It is clearly a quasi-judicialorder that the Court is asked to make, and notice is essential accordingto the audi alteram partem rule.
SAJNSONI, J.—Ceylon Bank Employees Union v. Yalawara
What happened in the case of these applications was that notieoregarding them was given oh 8th January, and Counsel for the Banks-mentioned them on 10th January before the Court when it beganits sittings. The representative of the Union objected to its being dealtwith on that day, and the Court directed that it be heard, on 12th January.On that day and on six days thereafter, the application was made thesubject of argument, and the objections raised before me were also raisedbefore the Court. On 27th January, the Court allowed the applications
Before I deal with the third objection, I shall deal with a fourthobjection raised by Mr. de Silva. He urged that each employee shouldhave been given separate notice of the application made against him, beforean order was made against him. I think this objection is answered by theprovisions of sections 36 (5) and 36 (6) of the Act, and also by regulation37 (6). The employees who were on strike were being represented beforethe Court by the Union. The Act and the regulations provide for suchrepresentation. The provisions I have referred to enact, in effect, thatnotice to an officer of the Union is notice to the workmen who weremembers of the Union. The application was not a new dispute (as Mr.de Silva argued), but “ fresh matter relating to the dispute ” 'withinsection 36 (5). When section 36 (6) says that a workman who is a memberof a Trade Union need not be notified of such fresh matter “ independentlyof his Trade Union ” it says more than that the notice need not be sent“ care of his Trade Union ”—which was the meaning Mr. de Silva gaveto those words. Now, the application was made against all thoseemployees who were on strike, and it was made on a ground common to allof them, namely, that they were committing an offence by continuing toremain on strike. There can be no doubt that the Union’s representativewho spoke for the employees well knew that it was one charge that wasbeing brought against all the striking employees^ based on one circum-stance, viz. that by concerted action they were continuing on strike. Thefacts were self-evident, although it was disputed whether, by participatingin the strike, the employees had rendered themselves liable to bedismissed or otherwise punished.
Returning to the third objection, I find that section 33 of the IndianAct, as amended, provides for “ permission in writing ” in one class ofcases, and “ approval of the action taken by the employer ” in anotherclass of cases. It is not easy to say exactly what the word “ approval ’*in our Act connotes. It may mean that the employer’s application for theremoval of the existing embargo on disciplinary action is merely granted.It may also mean that the employer who has decided on a particularcourse of action, and wants the Tribunal to permit him to follow it, isallowed to do so. The case of Davis v. Corporation of Leicester 1 is notan authority for the proposition that you cannot approve of action thatis proposed to be taken in alternative ways. It only decided that beforeapproval can be given by a person, he must have full knowledge of what heis giving bis approval to. I do not regard the decision of this question as
'(1894) 2 Oh. 208.
S.YNSONT, J.—Ceylon Bank Employees Union v. Yataioara
important, because these are Certiorari proceedings. In this case theparties were heard fully before the Court gave its approval, and I amunable to say that the order giving approval is, in the circumstances, onethat is liable to be quashed on certiorari. By that I mean that in makingits order the Court does not seem to me to have (1) acted without, or inexcess of, jurisdiction to make it; (2) made any error apparent on theface of the record ; or (3) acted in contravention of the rules of naturaljustice. As Mr. Ponnambalam pointed out, no statutory procedure islaid down as to what should be done by an employer when he is seekingapproval, or by the Tribunal before it gives approval. No time is speci-fied as to when such application should be made, or at what stage in theproceedings, or whether before or after a punishment has been decidedupon. No particular type of inquiry has been provided for, nor have thegrounds upon which the tribunal should grant or refuse its approvalbeen stipulated. This is, therefore, not even a case where there has beena failure to comply with statutory requirements, in which event it mighthave been necessary to consider the effect of such failure on the questionof jurisdiction. It is a case where the Court itself had to decide, withoutstatutory guidance, whether to allow or to refuse the application. Whereall these matters that I have detailed are left unprovided for in the statute,one is only left with the question whether there has been a violation of theprinciples of natural justice. I can fold none here, because the groundsupon which the application was made were known, and a full hearing wasaccorded to the representative of the employees.
Several cases were cited by either Counsel on the question whether ornot an act that is penalised by Statute can be valid. The cases seem toestablish the principle that the intention of the legislature must beascertained from an examination of the particular Statute. In the caseof Statutes dealing with the Revenue, and even in others which do notindicate that the act was penalised for the protection of the public or anyparticular section of the public, the only result of a breach of the Statutewill be the incurring of the prescribed penalty. But if the Statute indi-cates that the prohibited act was intended to be illegal and void, due effectwill be given to that intention. My own view, having regard to the objectof the Act, which was to ensure industrial peace and prevent victimisationduring the pendency of an inquiry into an industrial dispute, is that anyaction taken by an employer in breach of section 40 (1) (p) shouldbe treated as invalid. But in this case, as the orders of dismissal have theprotection of the Court’s order, that question does not arise for decision.
Many Indian judgments, mainly delivered by the Supreme Court, werereferred to in the course of the argument. After careful consideration Ihave decided that detailed reference to them will only result in confusionrather than clarity. The Indian Statutes and the administrative machi-nery in India are different, and it is safer to proceed on an examinationof our law. I must, however, acknowledge my indebtedness to the Indianjudges whose judgments I have read and re-read with admiration. Ihave profited much thereby, for I have learnt in this way a great deal
SANSONI, J.—Ceylon Bank Employees Union v. Yatawara
about a branch of the law of which I was comparatively ignorant. Mythanks are also due to the three Counsel who argued their respectivecases with marked ability.
Mr. de Silva urged that there should have been a preliminary inquiryheld by each Bank, against each employee upon a proper charge, beforethe application under section 40 (1) (p) was made. As there is no suchrequirement in this or any other Act, the failure to follow such a procedurecannot, in any event, result in the order being liable to be quashed oncertiorari. The reason is that an employer dealing with a workman indisciplinary proceedings does not, on that account, act in a quasi-judicialcapacity. The only quasi-judicial order made since this dispute beganis the order made by the Court giving its approval: and I have alreadyexplained why it was in a judicial position between the Banks and theirrespective employees. I can see no ground for interfering with it.
. There is no legal necessity for an employer to hold an inquiry beforeho applies for an order under section 40 (1) (p), but it may be desirablein some cases, for instance where misconduct of some sort is alleged. Theparticular tribunal may not be satisfied that there is a prima facie caseor that there is bona fides, if there has been no inquiry. But these arematters for the tribunal to consider, when it has to decide the application.I would add that I have no power to sit in judgment on the correctness ofthe decisions made, for I am not sitting now as a Court of appeal. I canonly interfere on certiorari if the order is invalid on any of the threegrounds which I have already mentioned. It is for this reason that Ihave refrained, as far as possible, from expressing any opinions on themerits of this dispute. They have yet to be inquired into. They areirrelevant in the realm of certiorari.
Before I conclude this judgment, I wish to refer to one question whichhas a bearing on this point. It relates to the reinstatement of the dis-missed workmen. Mr. de Silva insisted that the orders of dismissal werefinal and not open to review by the Industrial Court, because it had madeits order allowing the applications of the Banks. He referred meto section 24 (1) which requires the Court to take such decisions as mayappear to it to be just and equitable. Mr. Ponnambalam was equallyinsistent that the Industrial Court could deal with the matter of reinstate-ment, after going into the merits, acting under section 33 (1) (6) whichpermits an award to contain decisions, inter alia, “ as to the reinstatementin service …. of any workman …. who was dismissed. in the course of any strike …. arising out of theindustrial dispute ”.
I realise that it is a risky thing to make judicial observations obiter,though it is also a well established practice. My only excuse for dealingwith this matter is that it affects the employees who have been dismissed,and I feel that if the subject is brought up before the Industrial Court someguidance may be useful. I have already said that no particular type ofinquiry is provided for before approval under section 40 (1) (p) is grantedby the Court. No reasons need bo given—as indeed was the case here.
Commissioner of Inland Revenue v. de Silva
Only the prima facie aspect of the matter has to be considered, andapproval granted or refused—without the imposition of any conditions—according as the Court considers that a prima facie case has or has notbeen made out. The order, if granting approval, does not validate thedismissal, for its effect is only to remove the ban imposed on the employer.What if the workman is dissatisfied with the order ? In India he is en-titled to complain to the very tribunal before which the proceedings werepending, and that tribunal is bound to adjudicate upon the complaint as ifit were a dispute referred to or pending before it. It has jurisdiction to docomplete justice between the parties after going into the merits of theorder of dismissal: and it will make, or refuse to make, an order of re-instatement after considering their conflicting claims. I think theposition is the same under our law.
I have now dealt with the matters that awaited my decision. But Ishould like to add one word more. Nobody who listened to the argumentswhich have been addressed to me over so many days, nobody who heardthe beginning and the subsequent history of this dispute unfolded byCounsel on either side, can fail to realise that difficult and anxious humanproblems await solution. My jurisdiction is a limited one, but the membersof the Industrial Court, when their turn comes to inquire into theseproblems, will no doubt appreciate that they do not sit as a Court oflaw sits, strictly to adjudicate upon and enforce contractual rights, andobligations. They can create new contracts, and modify existing ones.They have to take account of considerations which bear upon industrialpeace and the social well-being of the entire community. It is hardlynecessary for me to stress what an anxious and heavy responsibility liesupon them.
In view of my findings—(1) on the validity of the reference, and (2)on the validity of the orders made by the Court upon the applicationsof the Banks, it follows that this application fails. The Respondents areentitled to their costs.
Application refused.