096-NLR-NLR-V-73-THE-STATE-BANK-OF-INDIA-Petitioner-and-S.-SUNDARALINGAM-et-al.-Responden.pdf
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Alles, J.—State Brink of India v. SundaraVngam
'Present: Alles, J.
THE STATE BANK OF INDIA, Petitioner, andS. SUNDARALINGAMcl al., Respondents
S. C. 300JC0—Application for the issve of Mandates in the nature of Writsof Certiorari and Prohibition
Industrial Disputes Act—Section 4 (1)—Dispute between ap employer and an ex-ruiployre—Whether it is an "industrial dispute”—Writs of Certiorari andProhibition.
An arbitrator appointed by tho Minister under section 4 (1) of the IndustrialDisputes Act has no jurisdiction to entertain an alleged industrial disputebetween an omployor and an ox-employco who has already retired from theservices of tho employer and thus ceased to be an omployoe. Such a case isone of cessation of employment and not one of termination or ro-instatementand, therefore, is not an “ industrial dispute .
APPLICATION for writs of Certiorari and Prohibition.
Lakshman Kadirgamar, for the petitioner.
A. Q. de Silva, for the 2nd respondent.
Cur. adv. vult.
September 24, 1970. Alles, J.—
. – The simple question that arises for consideration in this applicationfa whether tho arbitrator appointed by the Minister under Section 4 (i)of the Industrial Disputes Act had jurisdiction to entertain an allegedindustrial dispute between the petitioner and the 2nd respondent.When this same question WA3 raised before the Arbitrator he overruled
' ALLES, J.—Stale Bank of India v. Sundaralingam
313
the objection and held that he had jurisdiction. The present application,for mandates in the nature of Writs of Certiorari and Prohibition, isfrom this order.
The facts as set out in the petition are to the following effect:—
One Thuraisingham, a Sub-Accountant employed by the petitionerBank, retired from the service of the Bank on 10th April I9G2. Sixteenmonths later, on 15th August 19G3, the 2nd Respondent Union on hisbehalf and that of other Sub-Accountants applied for the benefits of asalary revision subsequent to the orders in I.D. 30G and I.D. 30GA.In the application the 2nd Respondent included an application forrevision of pension and the consequent arrears of salary and pension.
The Award in I.D. 306 and its clarification I.D. 30GA contain noorder or direction affecting the salaries or payment of increments toSub-Accountants and consequently' the awards in these two Disputeshave no application to Thuraisingham. Indeed at the abortive pro-ceedings first held before M. R. A. Carim (Arbitrator) on 12th October196G, the 2nd Respondent Union specifically admitted that the awardin I.D. 30G did not apply to Thuraisingham. Although the awards in
D. 306 and I.D. 30GA did not apply to the emoluments of Sub-Accountants, the petitioner Bank offered two increments of salary to suchSub-Accountants who were re-engaged by the petitioner Bank on 2GthMarch 19G2 after a strike which was then existing among the membersof the 2nd respondent Union, and which was called off on that day.Thuraisingham, being on medical leave between 27th December 1961(the date of the commencement of the strike) and 30th December 19G1and thereafter being on leave until the effective date of his retirementon 10th April 19G2 was not a person on strike and therefore the petitioner’soffer of two months increment of salary' was not applicable to him.According to the statement filed by the Commissioner of Labour w hichaccompanied the order of the Minister under Section 4(1) the matterin dispute is “ whether Mr. L. T. Thuraisingham should have beengranted two increments on the basis of Industrial Court Award in I.D.
30G” Since the Industrial Court Award in I.D. 306 admittedly
contained no order or direction affecting the salaries and payment ofincrements to Sub-Accountants the question whether Thuraisinghamshould have been granted two increments on the basis of the said Awardcannot possibly' arise because it has no relevance or application to theservices rendered by Thuraisingham.
Quite apart from his inherent flaw in the reference under Section4 (1), learned Counsel for the petitioner raises a further questionof fundamental importance. It is his submission that at the time ofthe reference under Section 4 (1) (19th May I960 and 31st December1963) there was no industrial dispute between the petitioner and Thurai-singham inasmuch as Thuraisingham had long since ceased to be anemployee under the provisions of the Industrial Disputes Act. Accordingto the petitioner a panel of three Judges of the Industrial Court in
510AT.T.ES. J.—Stole Dank 0/ India v. SnndaralInborn
J.D 337 had held that there carinot in law be an industrisl disputein connection with the " terms of empk^ment ” of a person after holias ceased to be an employee of the employer with whom the allegedindustrial dispute is raised. There was no appeal to the Supreme Courtfrom this decision and it is the submission of the petitioner that in theabsence of such an appeal this decision should be binding on theArbitrator. Nevertheless, since this question has now come up forconsideration before this Court, I propose to examine this issue in thelight of the provisions of the Industrial Disputes Act.
An “ industrial dispute ” under the Act is defined as " any dispute ordifference between an employer rn.l a workman or between employersand workmen or between workmen and workmen connected with theemployment or non-employment, or the terms of employment, or withthe conditions of labour, or the termination of the services, or thereinstatement iri service, of any person and for the purposes of thisdefinition ‘ workmen ’ includes a trade union consisting of workmen
I cannot see how this definition can-ever apply to " any dispute ordifference ” between an employer and an ex-employee who has retiredfrom the services of his employer. Thuraisingham ceased to be the peti-tioner's employee on 10th April 19G2. This is a case of cessation ofemployment and not one of termination or reinstatement. . When aperson ceases to be in employment, there cannot be a live dispute betweenthe parties which can ever culminate in an award affecting the terms ofemploj ment. Learned Counsel for the petitioner submitted that beforeThuraisingham retired there was a dispute between the Bank and itsemployees in relation to the salary scales and superannuation allowanceswhich affected his pension. Thuraisingham was not a party to thatdispute. The Bank, though not bound to extend the benefits of thatAward to Sub-Accountants, decided to do so in respect of those Sub-Accountants who were on strike and who were rin active service at thetime the strike was settled. Thuraisingham ceased to be in activeservice from 27th December 10G1 up to the date of his retirement andseeks to obtain certain benefits to which he is not Justly entitled.
It is unnecessary to consider the decision in the Divisional Bench ensoof The Colombo Apothecaries Co., Lid. v. Wijeysooriya and others1 whichwas cited by Counsel for the petitioner, for that case dealt with a case oftermination, of employment and not cessation.
For the above reasons, I hold that the dispute referred to the Arbitratorunder Section 4(1) is not an industrial dispute within the meaning of theAct and that therefore its reference for settlement by arbitration isinvalid. • I therfore quash the proceedings held on 27th March 19G9 and •direct that the petitioner is entitled to the writ of prohibition prayed forby him. The petitioner will also becntitlcd to the costs of this applicationwhich I fix at Ks. 210, payable by the 2nd respondent.
Application: allowed.
* COGS) 70 y. L. It. 4S1.