090-NLR-NLR-V-72-THE-COCONUT-RESEARCH-BOARD-Petitioner-and-N.-R.-SUBRAMANIAM-et-al.-Respondent.pdf
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WEERAMANTRY, J.—Coconut Research Board, v. Subramaniam
1969‘ Present: H. N. G. Fernando, C.J., and Weeramanfry, J.
THE COCONUT RESEARCH BOARD, Petitioner, and N. R.SUBRASfANIAM et al., Respondents
S. C. 85f6S—Application No. L. T. Sf16766
Industrial Disputes Act—Section 4.0—Coconut Research Board—Incapacity of theBoard to claim• Croum privilege in an industrial dispute—Corporationsdepending on and controlled by the Government—Whether they can claim to beservants or agents of the Croton—Interpretation Ordinance, s. 3—CoconutResearch Ordinance (Cap. 440) s.- 4 {?).
Tho Coconut Research Board, which is a body corporate) established andincorporated under tho provisions of the Coconut Research Ordinance, does notperform functions and duties which have traditionally been performed by thoCrown or the Government. Therefore the Board is not entitled to invoke thoprovisions of section 49 of the Industrial Disputes Act, in order to claimas against its employees the privileges available to the Crown in respect of Crownemployees.
A Corporation, such ns the Coconut Research Board, depending on andcontrolled by the Government, may nevertheless bo the employer of personsin its services within tho meaning of the definition of “employer” in theIndustrial Disputes Act. In such a case, such Governmental control does notbring the Corporation within the scope of the exemption provided by section49 of the Industrial Disputes Act.
Appeal from an order of a Labour Tribunal,
Walter Jayawardena, Q.O., with Lakshman Kadirgamar and V. Kanda-samy, for the petitioner.
N.Satyendra, for the 2nd respondent..
H. L. de Silva, Crown Counsel, for the Attorney-General, on notice.
Cur. adv. vult.
June 23, 19G9. Week am ante y, J.—In this application the petitioner contests the right of the secondrespondent, one of its employees, to invoke the provisions of the IndustrialDisputes Act. It is the petitioner’s contention that it performs functionsand duties which have traditionally been jterformed by the Crown or theGovernment and that it is therefore entitled to claim as against itsemployees the privileges available to the Crown in respect of Crownemployees.
The petitioner is a body corporate established and incorporated underthe provisions of the Coconut Research Ordinance (Cap. 440) for thepurpose of establishing and maintaining a coconut research instituteand otherwise managing, conducting and furthering scientific research in
WEERAMAXTRY, J.—Coconut Research Board r. Subramaniam
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respect of coconuts and problems connected with the coconut industry.In particular the Board is concerned with the growth and cultivation ofcoconut palms, the prevention and cure of diseases and pests and theutilisation and marketing of the products of the coconut palm.
Though dependent on Government funds, the Board has full powerand authority generally to govern, direct and decide on all mattersconnected with the appointment of its officers and servants, theadministration of its affairs and the accomplishment of its objects andpurposes1. There is also express provision in the Ordinance that any suchofficers or servants when appointed shall for the purposes of disciplineand otherwise bo subject to the control and supervision of the Chairmanof the Board 2.
Dependence on the Crown for funds does not of course have the effect,by itself, of making a Corporation a Government institution or aGovernment undertaking 3 nor does Government control necessarily render
a Corporation a servanfc or-agent of tlie Crown^.Furthermore, as this
Court recently decided in Air Ceylon Ltd. v. Rasanayagam 5, provisions inan Act creating a corporation which show Governmental contributions ofcapital, Governmental control of appointments and Governmental rights,to the surplus remaining out of nett receipts does not have the effect thatin law the Crown or the Government is the employer of persons employedon the staff of such Corporations.
Having regard to these principles Mr. Jayawardena for the petitioner-rightly stated that he was not submitting that his client was a servant or anagent of the Crown, and conceded that the second respondent employeewas an employee of the petitioner and not of the Government. Dis-position however was that his client performed functions and dutiestraditionally performed by the Crown or the Government and as such wasin consimili casu with a servant or agent of the Crown and entitled to claimthe privileges of Crown servants or agents.
Reliance was placed, in support of this contention on the Mersey DocksCase 6 where Blackburn, J. recognised that a Corporation not subject to-control by the Crown or by a Minister and whose revenues were notCrown revenues, could claim Crown privilege on the ground that it wasperforming a public duty. Blackburn J. observed“In these latter casesit is difficult to maintain that the occupants are, strictly speaking, servants,of the Sovereign so as to make the occupation that of her Majesty; but thepurposes arc all public purposes, of that kind which, by the constitution of'
1 Section 4 (7).* Section 4, proviso.
Ceylon Tea Propaganda Board v. Commissioner of Inland Revenue (1963) 67~
N. L. R. I.
Ceylon Bank Employees' Union v. Yalatcara (1962) 64 N. L. R. 49.
(1966) 71 N. L. R. 271.
Mersey Docks and Harbour Board Trust v. Cameron (1866) 11 H. L. C. 443~
'• ibid at p. 501-2.
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this country, fall within the j)rovincc of Government and are committedto the Sovereign, so that the occupiers, though not perhaps strictly•servants of the Sovereign might be considered in co/isimili cosu
No detailed inquiries are necessary for an appreciation of the manifestdistinction between the cases of the Mersey Docks and Harbour BoardTrustees and the Coconut Research Board, forapplying the tests formulatedin that judgment itself, the functions performed by the former werepublic purposes which bj' the constitution of Great Britain fell within theprovince of Government and were committed to the Sovereign. On theother hand the functions performed by the Coconut Research Boardcannot be said to be of a kind which by the constitution of this countryfall within the province of Government and are committed to the Crown.The constitution of this country is written and neither under theconstitution nor under any of the other laws of this country can anyprovision be pointed out which makes coconut research a function orduty of the Government or commits such matters to the Crown.
Mr. Jayawardena contended that agriculture has traditionally been aGovernmental function and duty in this country, and that scientificresearch pertaining to a major crop is likewise a Governmental functionor duty. There is no material before us on which we can arrive at theconclusion that “ the management conduct and furthering of scientificresearch in respect of coconuts and problems connected with the coconut■•industry” (to borrow the words of the Statute itself) has traditionallybeen a function of the Government of this country. The Coconut ResearchOrdinance goes as far back as the year 192S and we are unable to saythat the functions for which the Board was set up had been traditionallyperformed by the Government prior to this date. Even if we were in aposition to arrive at this conclusion, the tests set out in the Mersey Dockscase would still remain unsatisfied, for this function could not. under ourlaws be described as one committed to the Government.
It is of importance also to note that what was contemplated in theMersey Docks case was not the question of the employer-employeerelationship but the question of Crown privilege in regard to liability torates of premises occupied by such an agency for the purposes of tlieGovernment.
Learned Crown Counsel appearing as amicus curiae referred us to anumber of eases in which Crown privilege was successfully claimedby statutory bodies which, though not strictly servants of the Crown, wereconsidered as being in consimili ca-su. All these cases likewise turnedout to be cases of a claim of privilege vis-a-vis the State or tlie public,as for example in matters of taxation, rating and patent rights. Wo havenot been referred to any decision dealing with a claim of privilege in regardto the employer-employee relationship subsisting between such Boards -and their employees.
WEERAMAXTRY, J.—Coconut Research Board v. Subramaniam425-
It is lienee unnecessary to refer in detail to the various cases cited or to thetests therein propounded for determining the question whether such anagency may claim Crown privilege. We may however make reference tothe case of Pfizer Corporation v. Ministry of Health1 where it was held t hatthe supply of drugs to National Health Service Hospitals for administrationto out-patients and in-patients was a use for the services of the Crownand was accordingly within the authority conferred by section 4G (1) ofthe Patents Act of 1949 granted to a Government Department to use andexercise a patented invention for the services of the Crown. The speechesin this case are of interest for the observations they contain in relation tothe changed nature of “ Services of the Crown ” in the present age. lordReid observed2 that “ although in Victorian times the armed services—the Navy and the Arm}'—the Civil Service, the foreign colonial andconsular services, the Post Office and perhaps some others comprise theservices of the Crown ”, today there are many newer services, such ashospital service, which are nevertheless services of the Crown. So also-Lord Evershed pointed out3 that there is not and cannot be in thisday and age a true antithesis between the services of the Crown in thesense of services related to the functions of Government as such and*services of the Crown in the sense of the provision of facilities com-manded and defined by Act. of Parliament for the general public-benefit. ”
This view still does not avail the applicant in the present case, for the-Hospital Boards and Committees which administered these hospitals-were manifestly discharging duties laid upon the Minister by statute. TheNational Health Services Act of 1946 placed upon the Minister, in specificterms, a statutory obligation to promote the establishment of a compre-hensive health service designed to secure improvement in the physicaland mental health of the people, and the Boards and Committees weredischarging these duties committed by statute to the Minister. No suchstatute placed uj>on any section or Department of the Government ofthis country at any time the specific function of conducting scientificresearch in respect of coconuts, and government did not therefore standcharged or committed with such a duty.
Section 49 of the Industrial Disputes Act provides that nothing in theAct shall apply to or in relation to the Crown or the Government in itscapacity as emplo3'cr or to or in relation to a workman in the emplo}Tuentof the Crown or the Government. In Air Ceylon Lid. v. Basanayagam 4this Court-has alread}'held that a Corporation depending on and controlledby the Government was nevertheless the employer of persons in its serviceswithin the meaning of the definition of “employer” in the IndustrialDisputes Act and that such Governmental control did not bring such acorporation within the scope of the exemption provided by section 49.
Mr. Jayawardens has failed to satisfy us that there is any distinctionbetween the corporation there under consideration and the Coconut
~111965) A. C. 512 (H. L.)* ibid at p. 543.
* ibid at p. 533.* Supra.
M26
Joseph v. Thiruchelvam
Research Board, and the cases to which we have been referred only serveto confirm this court in the view taken in that case. Moreover we see. no merit in the contention that this view in any manner affects the rightsof the Crown which are protected by section 3 of the InterpretationOrdinance, for what we are here considering are admittedly not the•rights of the Crown or of a Crown agent or servant.
For these reasons we are of the view that the contention that Crownprivilege may be claimed b}7 the Coconut Research Board as a Crown-agent must fail, and that the Board would be amenable to the jurisdictionof a Labour Tribunal in terms of the Industrial Disputes Act.
Another ground of attack upon the order of the Tribunal was that theapplication by the secoud respondent was out of time. This ground wasnot however pressed by Mr. Jajmwardena as it rested on a very technicalview of the nature of the amendment to the original application.
For the reasons set out the petition fails and is dismissed with costs..payable to the second respondent which we fix at Rs. 315.
H. N. G. Fernando, C.J.—I agree.
Application dismissed.