THE STATE BANK OF INDIA v. EDIRISINGHE AND OTHERS

040-SLLR-SLLR-1987-1-THE-STATE-BANK-OF-INDIA-v.-EDIRISINGHE-AND-OTHERS.pdf


THE STATE BANK OF INDIA
v.EDIRISINGHE AND OTHERS
COURT OF APPEAL.
BANDARANAYAKE, J. AND WIJETUNGA, J.
C.A. APPEAL No. 1070/80.
OCTOBER 15, 16, NOVEMBER 10, 11 AND 12, 1986.
Certiorari-Industrial Disputes Act, s.4(1),33(1)(e) and
48-Retirement-Resignation-Termination of employment-Retire!situation-Pension-Gratuity-Arbitration-Award-Arbitral power-judicialpower-Appointment by Judicial Service Commission-Jurisdiction-Objection toJurisdiction.
The petitioner counted 25 years service in the State Bank of India. When he was 48years old he sought permission to retire so as to be able to accept an appointment inthe Hatton National Bank. The petitioner pointed out that there was risk to the continuityof his service as the Bank would have to be incorporated in Sri Lanka if it was tocontinue business in Sri Lanka. If the Bank was not prepared to permit retirement hewas resigning. The Bank wrote back treating him as having resigned and waived therequirement of three months' notice. On his seeking retiral benefits like pension etc. theMinister appointed the 1st respondent as arbitrator to resolve the dispute. Thearbitrator made monetary awards in favour of the petitioner under three heads: pensionor gratuity, encashment of unutilised leave and revision of salary The main questionswere whether there was a retiral situation in the circumstances of the termination of thepetitioner's employment and whether the relief granted by the arbitrator was in theexercise of judicial power and in excess of jurisdiction or, as it should have been, in theexercise of arbitral power. The arbitrator was also accused of bias and usingintemperate language.
Held-
The petitioner's was a fit case where the Bank should have exercised its discretionin favour of treating the petitioner as having retired because of the changedcircumstances of the risk of the employment getting terminated if the Bank failed tocomply with the requirement then operative of incorporation in Sri Lanka and the factthat 25 years' service was sufficient to entitle him to a pension. There was therefore aretiral situation in petitioner's case.
(a) The dominant duty of an arbitrator is to make an award which is just and
equitable which duty is identical to that imposed on a Labour Tribunal orIndustrial Court. The power to grant relief is limited by the duty to make a justand equitable order and it is also limited by the terms of reference and theexisting law. Yet it is wide and not fettered by the terms of the contractbetween the employee and workman. It should be an order which decides whatthe agreement between the parties should be in the future.'
(b) There was uncertainty in the mind of the workman regarding his futureemployment. He was compelled to volunteer resignation or termination of hisservices. This was a retiral situation
The nature of the award does not reflect the exercise of judicial power but isconsistent with the exercise of arbitral power.
In a retiral situation as arose here it is accepted practice to give retirement benefitsnotwithstanding that there is a termination of services prior to a predetermined age ofretirement. Ordinarily retirement in full time on pension results in a continuingrelationship between employer and workman regarding payment of pension. The awardwhich the arbitrator made of a pension of Rs. 1.000 a month for life is within thepermissible rules and decides the relationship between the parties for the future. Inawarding this pension the arbitrator correctly exercised his powers of making a just andequitable order.
The Industrial Disputes Act (s.33(/) (e)) permits an arbitrator to make an award ofgratuity. The arbitrator exercised his discretion in awarding gratuity on good grounds ina reasonable and proper manner in justice and equity. Here however as a pension wasawarded the question of granting a gratuity in the alternative does not arise.
There is no provision in the Rules for the encashment of lieu leave. Hence the awardunder the head of unutilised leave cannot be substantiated.
The new salary proposals of the Bank were applicable only to Indians serving inIndia. The officers in Colombo enjoyed different terms and conditions of employmentwhich the petitioner had accepted. Hence the award under the head of Revision ofSalary Allowance cannot stand.
Cases referred to:
The United Engineering Workers' Union v. Devanayagam – (1967) 69 NLR 289PC.
The National Union of Workers v. The Scottish Ceylon Tea CompanyLimited-(1975) 78 NLR 133. 158.
Walker Sons & Co.. Ltd. v. Fry – (1965) 68 NLR 73.
South Ceylon Democratic Workers' Union v. Selvadurai – (1962) 71 NLR 244.
Heath & Company (Ceylon) Ltd. v. Kariyawasam – (1968) 71 NLR 382.
Nadaraja Ltd. v. Krishnadasan – (1975) 78 NLR 255.
Attorney-General of Australia v. Regina – [1957] AC 288
Senadhira v. The Bribery Commissioner – (1961) 63 NLR 313. 318.
Piyadasa v. The Bribery.Commissioner – (1962) 64 NLR 385.
Ranasmghe v. Bribery Commissioner – (1962) 64 NLR 449.
Moosajees Ltd. v. Fernando – (1966) 68 NLR 414.
Uyanage v. The Queen – (1965) 68 NLR 265.
Ceylon Transport Board v. Gunasinghe – (1968) 72 NLR 76. 80, 81
Ceylon Transport Board v. Samastha Lanka Motor Sewaka Samithiya – (1962)65 NLR 566.
Hayleys Ltd. v. R. Crosette-Thambiah – (1961) 63 NLR 248. 256.
(1 6) Shell Company of Ceylon Ltd. v. Pathirana – (1962) 64 NLR 71.
Y. G . de Silva v. Associated Newspapers of Ceylon – (1963) Bar Association LawJournal Vol. 1. P.C. 111.
Associated Provincial Picture House Ltd. v. Wednesbury Corporation – [1948]1 K.B. 223.
Cur. adv. vult.
APPLICATION for a mandate in the nature of a Writ of Certiorari.
Dr. H. W. Jayewardene. Q.C. with Ronald Perera. Miss T. Keenawinna and Miss K.Wattage for petitioner.
H L. de Silva, P.C. with M. Bastiansz. Miss L. N. Adittiya de Silva and Chanaka de Silvafor 3rd respondent.
January 30. 1987.
BANDARANAYAKE, J.
The petitioner seeks a mandate in the nature of a Writ of Certiorari toquash an award made by the 1 st respondent, an Arbitrator appointedby the Minister of Labour under s. 4(1) of the Industrial Disputes Actto hear and determine a dispute between the 3rd respondent and thepetitioner. The award determined that-
the 3rd respondent was entitled to a pension for life in a sum ofRs. 1,000 per month or a gratuity in a sum of Rs. 26.390, andto payment of other benefits being sums of money on accountof-
Encashment of leave in a sum of Rs. 16.800; and on accountof-
Revision of salary allowance in a sum of Rs. 24,805.
The petitioner is a Branch of the State Bank of India and carries on thebusiness of Banking in Sri Lanka.
The 3rd respondent, Gunawardene was first employed by the Bank on1st December 1949 as a Probationary Assistant. He rose to theposition of Accountant on 1st January 1975 and had over 25 yearsservice at the Bank at the time of termination of employment on 30thApril 1975. The Bank treated the 3rd respondent as having resignedfrom service before entitlement to pension or gratuity according to theBank’s Rules and consequently refused to pay him a pension orgratuity or any other payment whatever.
It was in these circumstances that the dispute was referred to the1 st respondent. The statement of the matter in dispute dated 5.4.77was furnished to the 1 st respondent by the Commissioner of Labourand has been marked 'A' in arbitration proceedings A 1617. Both thepetitioner and the 3rd respondent also submitted statementsregarding the dispute. The statement of matters in dispute betweenMr. G. Gunawardene and the State Bank of India are stated by theCommissioner of Labour as follows:
whether the refusal and/or failure of the State Bank of India topay Mr. G. Gunawardene a pension of 1,015 per month for lifewith effect from 1/5/75 is justified and to what relief he isentitled; and
Whether the following claims of Mr. Gunawardene against theState Bank of India:
that he be paid in lieu of unutilized leave,
that he was entitled to a revision of salary and allowanceswith effect from 1.1.70 in terms of Staff Circular 15 of31.3.71.
are justified and to what relief he is entitled.
The award was attacked by Dr. H. W. Jayewardene, Q.C., forpetitioner under several headings which may be summarised thus:
(a) The award was in direct contradiction to the terms andconditions of employment as evidenced by the "Rules governingthe service of officers in the Bank of India, A 62(R8) and theRules and Regulations of the Pension and Guarantee Fund of theBank R1, as these Rules constitute part of the contract ofservice of the 3rd respondent.
The award displays complete bias and a refusal to be guided byapplicable principles of justice. The arbitrator has indulgedhimself in unfair criticism. The arbitrator has ignored the duty toact judicially. He has failed to hold an even hand betweenconflicting interests and failed to make a just and equitableorder as enjoined on him by the law.
This was an industrial dispute not capable of being referred toarbitration.
Sections 4 and 15 to 20 limit the arbitrator's powers. He canlay down terms and conditions for the future. An awardbecomes an implied term of the contract of employment. Thisaward is outside the scope of his powers, in that the 3rdrespondent first asked for permission to retire and if refusedindicated his decision to resign and resigned from hisemployment-vide his letters to the Bank marked A14 dated30.3.75 and A15 dated 2.4.75 and the Bank's acceptance ofhis resignation by letter A16 dated 30.4.75. According to theRules, upon resignation 3rd respondent was not entitled to apension or any other benefit. But after the employee terminatedhis own employment he asks the arbitrator for a new contractwhich included a right to a pension after resignation which thearbitrator has awarded. The power to make a just and equitableorder does not give a power to displace the contract ofemployment. Thus the arbitrator acting outside the scope of his •powers has made a monetary award which is the traditionalexercise of judicial power. The only power an arbitrator isauthorised to make is to make an award which decides what theagreement between the parties should be in the future and notto act as a judge and determine the rights of parties which iswhat he has done. The effect of the award is not the exercise ofarbitral power but the exercise of judicial power which wasbeyond his jurisdiction. Since the award was judicial in natureArt. 170 of the 1978 Constitution required the presiding officerof a Tribunal exercising judicial power to be appointed by theJudicial Service Commission. The arbitrator was not soappointed in this instance. Therefore his award must be struckdown.
Learned counsel for respondent objected to petitioner's counsel'ssubmissions as to (c) and (d) above on the grounds that-
the objection that the arbitrator who in this case had exercisedjudicial power was not appointed by the J.S.C. in terms ofArticle 170 of the 1978 Constitution was a new point beingtaken for the first time and not mentioned in the petition.
that an objection to jurisdiction was never taken before theTribunal.
the objection is in reality an objection taken against the decisionof the Minister who made a reference under s. 4(1). TheMinister of Labour is not a party-respondent. Court must hearthe party whose decision is sought to be struck down.
Section 4(1) read with s. 48 defines an Industrial Dispute toinclude a termination of service; A 'termination' is an endingand does not always mean termination by an employer. Soconcept of a dispute widened and included any disputeconnected with termination.
I am inclined to the view that this being an application for a writ of ’certiorari, if the award is ultra vires for want of jurisdiction, then thisCourt must consider the position and issue a writ to quash theproceedings if ultra vires. The Constitutional provision Article 170requiring Tribunals to be appointed by the Judicial Service Commissionbecame operative in September 1978. The reference to arbitrationwas made by the Minister on 5.4.77 when the Privy Council decisionin Devanayagam's case (1) was binding where it had been held that aLabour Tribunal was not exercising judicial power. Again, the Ministerneed not be made a party as the attack is not on the legality of thedirection made by the Minister but to the award made by thearbitrator. The objection of respondent's counsel is thereforeoverruled.
• Evidence.-There is little dispute about the material facts. Theevidence led at the inquiry before the arbitrator consists of the twosets of Rules (i.e) Rules governing the service of officers in theBank-A62(R8) and the Rules and Regulations of the Pension andGuarantee Fund of the Bank (R1) the evidence of the 3rd respondentand the General Manager (Planning) of the Bank, E.R.A. da Cunha whohad earlier been the Bank's agent in Colombo between 1971 and1976. The arbitrator was also assisted by submissions made by
counsel on both sides. The interpretation to be placed on certain ruleswere in dispute however as were the inferences to be drawn upon acomparison of the Bank's conduct in dealing with the termination ofthe services of other officers with that of the 3rd respondent.
Immediate circumstances which led to the termination of the 3rdrespondent's employment.-The 3rd respondent addressed thefollowing letter (A14) to T. R. Varadachary, Managing Director, StateBank of India of Bombay, India dated 30.3.75:
"Dear Mr. Varadachary.
I am venturing to write to you on this matter on the advice of the Branch Agent Mr. E.R. A. da Cunha.
I have been offered a very senior post in the Hatton National Bank Ltd., and I wouldlike to accept it. I have already completed 25 years of pensionable service with theState Bank of India on 1.12.74. I shall be glad if the Bank would exercise its optionunder Rule 37 of the Rules governing the service of officers in the (Bank) and permit meto retire from the Bank's service as from 1st day of May 1975.
As you may be aware there are very limited opportunities for me for advancement inservice at this Branch. I have also enumerated to Mr. da Cunha the various reasonswhich prompted me to make this decision after careful thought. The principal one is thefact that in view of recent legislation requiring the Bank to incorporate itself in Sri LankaI have no guarantee of the continued existence of this Bank in Sri Lanka. In fact in thematter of the revision of salary scales of staff officers Grades I, II and III on 26.3.71 theadverse decision taken vis a vis me was due to my being a Ceylonese officer in anorganization mainly staffed by Indians and to the fact that my pension rights under theThalogodapitiya Award would be in excess of pensions drawn by other Indian officers.
In the event of the Bank being unwilling to extend the benefit of Rule 37 to me I shallbe most grateful if you would sanction the payment to me of a suitable gratuity in lieu ofa pension in consideration of my long and devoted service.
I regret having to trouble you…. but due to the limited time available to me to indicateacceptance of the offer made by the Hatton National Bank I shall thank you to adviseMr. da Cunha and me by cable if possible of your willingness to release me and thequantum of relief which you may consider appropriate in the circumstances.
I am very grateful to the management for the excellent training afforded me as aprobationer, the kindness and courtesy shown to me as an officer and the appreciationof my services by your promotion of me to the First Grade of Officers.'
A15 was the 2nd letter dated 2.4.75 sent by the 3rd respondent tothe Managing Director, State Bank of India, Bombay, India. It reads:
‘Retirement from Service
Dear Sir,
I have already completed 25 years of pensionable service in the Bank on 1.12.74 andI shall be glad if the Bank would permit me to retire from its service under Rule 37 of the
Service of Officers RulesI have been offered a Senior appointment with the Hatton
National Bank Ltd. In the event of the Bank being unwilling to extend the benefit of Rule37 to me, I shall be grateful if you would sanction the payment to me of a suitablegratuity in lieu of pension.
Kindly waive the requirement of 3 months' notice of termination of service under
Rule 30 and accept in lieu thereof the unavailed leave due to me as at date and grantme the encashment of the excess leave available. In the event of the Bank notpermitting me to retire from its service, please treat this as my letter of resignation asfrom 1st May 1975."
To the above the Bank's Agent in Colombo wrote A16 dated30.4.75 to the 3rd respondent which reads:
‘Resignation from Service
With reference to your letter of the 2nd April and with reference to paragraph 3thereof we have to advise that your resignation from the Bank's service has beenaccepted as at the close of business on date, and the 3 months' notice period requiredhas been set off against the unavailed of ordinary leave due to you as desired by you.
We wish you a happy future."
In this background I now set out terms of service of officers-A62.Important terms and conditions relevant to the dispute are:
1. These rules embody the terms and conditions of service of officers in the ImperialBank of India. They apply to all officers appointed Probationary Officers or Staff Officerson or after 1.7.36 etc.
2. In these rules unless there is anything repugnant in the subject or context -(g) 'India' includes Pakistan, Burma, Ceylon;
No person shall be appointed an officer unless he has passed the FinalExamination of the English, Scottish, Irish, or Indian Institute of BankersExamination'
30. An officer shall not resign from the Bank without giving the Managing Director 3calendar months' notice in writing of his intention to do so, failing which he shall pay tothe Bank a sum equal to his substantive salary for 3 months:
Provided that if the Bank is satisfied that an officer is incapacitated from furtherservice by bodily or mental infirmity or if the Bank is for any other reason willing to waiveits right to notice from an officer such officer may be permitted to resign without noticeor payment in lieu of notice;
37. An officer may at the discretion of the Central Board or its Committee be called
■Oi to retire from the Bank's service upon completion of twenty-five years service.
3b. f .II officers shall retire at fifty-five years of age or upon the completion of thirtyyears service whichever occurs first.
Provided that the Central Board or its Committee may expend the period of service ofan officer beyond thirty years should such extension I e deemed desirable in theinterests of the Bank subject however to the age limit of fif> /-five years which shall be anoverriding limit.
Note.- For the purposes of Rules 37 and 38 service shall countin the case of an
officer first engaged by the Bank as a Probationary Officer or Probationary Assistantfrom the commencement of his service with the Bank
Section 12 – Leave
A.- General Rules
97. The rules relating to leave shall not be deemed to confer upon officers the right toclaim leave because it has been earned.
Ordinary leave and furlough shall at all time be granted at the convenience of the Bankand the Committee of the Central Board or the Local Board may refuse leave to any
officerwhen such course is considered necessary to meet the exigencies of
service.
B.-Ordinary Leave
An officer shall earn ordinary leave at the rate of one-eleventh part of his serviceon duty viz: one calendar month for every eleven complete calendar months of duty andone day for every eleven days of the balance.
The period of ordinary leave admissible at any one time to an officer of Asiaticdomicile shall be 5 calendar months and no further ordinary leave shall be earned bysuch officer who has 5 calendar months due to him.
The period of ordinary leave admissible at any one time to an officer of Asiaticdomicile shall be 3 calendar months and no further ordinary leave shall be earned by anysuch officer who has 3 calendar months due to him.
The period of ordinary leave due to an officer shall be the period which he hasearned under these rules diminished by the period actually taken.
119. Officers of Asiatic domicile shall not be eligible for furlough.
I now turn to the Pension & Guarantee Fund.
Rules – R1
The Fund intended to be hereby createdshall be called "The Imperial Bank
of India Employees' Pension and Guarantee Fund" and its objects and business shall beto provide pensions to the Bank's employees
In these rules …. "India" includes Pakistan, Burma, Ceylon.
11. The retirement of all officers of the Bank shall be subject to the sanction of the
Executive Committee of the Central Board any officerwho shall leave the
service without sanction as required by this rule shall forfeit all claim upon the fund forpension.
If an officer of the Bank who is entitled to pension under these rules wishes toaccept employment in any other Bank at any time or any other commercial employmentwithin 2 years from the date of retirement, he shall obtain the previous sanction of theExecutive Committee of the Central Board. Should he undertake such employmentwithout the sanction required under this rule it shall be competent for the trustees towithdraw the pension payable to him either in whole or in part at their discretion.
Provided that an officer permitted by the Executive Committee to take up a
particular form of commercial employment during his leave preparatory to retirementshall not be required to obtain subsequent permission for his continuance in suchemployment after retirement;
No employee on the staff in India shall be entitled to pension until he shall havecompleted twenty-five years service in India and no employee on the staff in London;<hall be entitled to pension until he shall have completed forty years service except ashereinafter provided.
19 (i) An employee retiring from the Bank's service after having completed twentyyears service with the Bank shall be entitled to pension provided the employeehas attained the age of fifty years if employed on the staff in India;
(ii) An employee retiring from the Bank's Service after having completed twenty
years service on the staff in Indiashall be entitled to pension irrespective
of age if he shall satisfy the authority competent to sanction his retirement byapproved medical certificate or otherwise that he is incapacitated for furtheractive service.
(in) An employee who has attained the age of fifty-five or who shall be proved tothe satisfaction of the authority competent to sanction his retirement to bepermanently incapacitated by bodily or mental infirmity from further activeservice, may at the discretion of the trustees be granted a proportionatepension.
20. The maximum pension (except in cases which the trustees in their discretionmay unanimously consider special) shall not exceed Rs.750 per mensem and in nocase shall exceed Rs. 1.000 per mensem in the case of employees on the staff in India.
The Arbitrator's decision and the grounds for same.- Reference has .already been made to the matters in dispute communicated to theArbitrator by the Commissioner of Labour – Document 'A'. TheArbitrator in his order dealing with the claim for pension makes specificreference to Rules 2(g), 38, 37, 19 of the service rules-A62(R8)and to Rules 11 an 15 of the Pension Fund Rules-R1.
He next makes reference to the letters written by the 3rdrespondent to the Managing Director – A14 a id A15 – seeking theexercise of the Banks discretion for permissn. n to retire because ofuncertainty of the future because of impending Governmentalrequirement for the Bank's incorporation in Sri Lanka andconsequently is considering another job offer by a Bank. He next dealswith submissions made on behalf of the workman's Counsel that Rule15 of A62 gives a contractual entitlement to pension and describesthe Bank's refusal as "unjust, unreasonable, discriminatory andinequitable".
He goes on to recite that counsel pointed to instances of othersbeing allowed to retire before reaching 55 years or having 30 yearsservice, to wit: the cases of Daniel, Paul, Cleghorn and Jeffrysubmitting that the refusal in the instant case amounted todiscrimination and comes to a finding that there has been a clearpractice of the Bank permitting retirement before reaching 55 years orbefore completing 30 years' service.
The arbitrator next dealt with the submissions of Counsel for theBank who contended that a workman's eligibility for pension isgoverned by retirement and not resignation and that in this instancethe 3rd respondent had resigned. Therefore the crux of the issue iswhether the 3rd respondent retired. The 3rd respondent has himselfrequested permission to retire – A14 but later resigned – A15 andtherefore he is not eligible for pension. The arbitrator came to a finding
that the "Bank refused to exercise discretion in a reasonablyunreasonable way and maliciously withheld permission to retire. I holdGunawardene is entitled to a pension".
The arbitrator next adverted to the question of gratuity. Havingconsidered the submissions of counsel for the Bank that-
there was no scheme of gratuity and therefore Gunawardenewas not entitled to gratuity;
that resignation was not a "retiral situation" guided by thejudgment of the Supreme Court reported at 78 N.L.R. 133 TheNational Union of Workers v. The Scottish Ceylon Tea CompanyLimited (11);
the issue before arbitrator (according to document 'A') doesnot relate to payment of gratuity and therefore there is noquestion of alternative relief;
the arbitrator examined the question as to how a gratuity can arisegiving several reasons stating that he is required to give a just andequitable order and not just enforce an employer's legal rights.Reference was made to the minority judgment of Sharvananda, J. inthe case adverted to when His Lordship extended "retiral” situations toinclude even a resignation. Reference was also made to theunreported case – S.C. Application 656/75 – by Vythialingam, J.which dealt exhaustively with the question of a 'retiral' situation. Thequestion the arbitrator posed to himself was whether there werecircumstances in the case which amount to a 'retiral' situation carryingwith it the eligibility for the payment of gratuity. The arbitratorconsidered the other cases referred to in the evidence as also being‘retiral' situations accepted by the Bank and treated them as examplesof discrimination against the employee-"This case is stinking withdiscrimination!" Learned counsel for petitioner took exception to theuse of intemperate language in an order of an arbitrator.
On the question of payments in lieu of unutilized leave the arbitratorheld that the 3rd respondent was subjected to numerous deprivationsby the Bank during the period of his service on the pretext of'exigencies of service". The arbitrator relied on the terms of StaffCircular No. 8 marked A36 referring to a right to encashment ofordinary leave standing to an officer's credit, in making an award inthis respect of Rs. 16,300.
On the other question regarding the entitlement to revision of salaryand allowances the 3rd respondent made his claim upon the contentsof Staff Circular No. 15. of 31.3.71 and annexure marked ”A1" and"A1 (a)". The arbitrator accepting the contents of these documentsalone made an award in favour of the 3rd respondent in a sum ofRs. 24,805 for the period 1.1.70 to 20.4.75The claim to Pension or Gratuity-Submissions of petitioner'sCounsel:
It was the contention of learned counsel for the petitioner that-
the 3rd respondent in letter A14 requested permission to retireasking the Bank to exercise its option under Rule 37 of A62.Rule 37 however gave a discretionary power to the CentralBoard of the Bank or its Committee to call upon an officer toretire from the Bank's service. The Bank did not choose to doso. The Bank cannot be faulted for that. This rule wasinapplicable to meet the employee's request. Furthermore, Rule38 dealt with compulsory retirement on reaching the age of 55years or upon completion of 30 years' service. The employee didnot fulfil either of these requirements. He was about 48 years ofage and had only 25 years service at the time of his request inA14. He therefore did not qualify for retirement under any of therules. For instance, he may have qualified under rule 19 (i) if hehad reached 50 years as he had over 20 years service or hemay have qualified under Rule 19 (ii) if he was incapacitated orunder Rule 19(iii) if he was 55 years. Again, counsel pointed tothe provisions of Rule 14 of R 1 which requires that if an officerentitled to a pension, wishes to accept employment in any otherBank at any time within 2 years from date of retirement, he mustobtain the previous sanction of the Executive Committee of theCentral Board. If he contravenes this rule it is competent for thetrustees to withdraw his pension either in whole or in part. The3rd respondent said he was offered a senior post at the HattonNational Bank and was considering the offer in A14. This mustbe taken into account. This rule exists because the employeewould know the Bank's business and organisation, the identityand accounts of its customers and other business secrets and itis good Banking practice to insist on such a rule. In all thesecircumstances the employee's resignation wiped out any claimto pension for past services. The award however creates newterms and conditions in the teeth of the contract of service. It istherefore arbitrary and unjust.
In view of the resignation of the employee there was no disputecapable of being referred to arbitration.
The award was in fact a judicial pronouncement made in theexercise of judicial power quite outside the scope of his duties.This is apparent upon an examination of the award. Themonetary awards made was the traditional way in which a Courtenforced rights. In the exercise of a duty to arbitrate anarbitrator cannot in fact exercise judicial power. Where he doesso the award must be struck down as only a person appointedby the Judicial Service Commission can exercise judicial power.Article 170 of the 1978 Constitution provides that any tribunalexercising judicial power, i.e. a person equated to a 'judicialofficer' must be appointed by the J.S.C. The majority decisionof the Privy Council in the United Engineering Workers' Union v.K. W. Devanayagam (1) has been superceded by theConstitutional provision. This came about because of generaldissatisfaction with the said view of the majority whichcoincided with the minority view in Walker Sons & Co., Ltd. v.Fry and Others (3) that a Labour Tribunal does not exercisejudicial power. The matter is no longer in issue because of theConstitutional provision but it was submitted with respect tothose Courts that the preferable view was that expressed by themajority of the Supreme Court in Walker Sons & Co., Ltd. v. Fryaforesaid and the minority view of the Privy Council in UnitedEngineering Workers' Union v. Devanayagam aforesaid. In anyevent the Privy Council decision was in respect of a LabourTribunal case. Therefore counsel invited the Court to hold that inexercising judicial power the arbitrator has acted ultra vires.
{d) On the question of payment in lieu of unutilized leavepetitioner's counsel relied on the written submissions ofpetitioner's counsel at the arbitration inquiry contained indocument D in the record. It had been the submission ofcounsel that there was no provision in the rules for such apayment and in fact Rule 97 of A 62 states that leave is grantedat the convenience of the Bank. The evidence of witness daCunha was that accumulated leave lapses at time of cessationof employment. The workman without taking leave prior toretirement suddenly resigned. He did not even give the requisitenotice of resignation. But requested that it be waived and the
Bank obliged. In any event Staff Circular A36 on which the 3rdrespondent relied was a circular that did not apply in Sri Lankabut applied only to Indian Officers serving in India.
As regards Revision of Salary claimed it was Counsel's position,relying on the submissions contained in document 'D' that StaffCircular 'A1' and "A1 (a)" did not apply to Ceylonese officers.Consequent to representations made by the 3rd respondentand another Ceylonese officer John Pillai, the Board of Directorsin India themselves resolved that these circulars do not apply inCeylon. This was communicated by the agent to the 3rdrespondent by A9 and A10. The award under this head istherefore quite unjustified and arbitrary upon a misconceptionthat these were discriminatory tactics.
The arbitrator referred to four other cases where officers hadbeen permitted to retire before satisfying the conditions of Rule38 and upon such comparison treated the instant case as anexample of discriminatory treatment afforded to the 3rdrespondent. Counsel submitted that this inference wasunfounded and erroneous.
Those cases are:
Daniel's case-He had rheumatoid arthritis and washospitalized. He had served 25 years and wished to retire.These special circumstances warranted special considerationand retirement was sanctioned. The arbitrator has notconsidered this.
Paul's case-Had served 25 years. His conduct at the IndianClub, Colombo raised suspicions as to his integrity andreasonable fears as to his suitability to continue in employmentin a Bank. On his seeking retirement the Bank grabbed theopportunity and let him do so.
Cleghorn’s case-Appointed agent in Colombo. A fraud of Rs.126,000-his supervision was found wanting-transferred toMadras-when Bank was nationalized (Imperial Bank succeededby State Bank of India) he wanted to retire and was allowed todo so. That was in 1961.
John Pillai's case-Joined the service with 3rdrespondent-later was placed senior to the 3rdrespondent-took his Banking examinations later-this hadnothing to do with the. 3rd respondent's resignation orpension. Mr. H. L. de Silva, P.C., for respondent howeverpointed out that under Rule 13 of A62 John Pillai did not havethe qualifications to have been initially employed as he had notpassed the Banker's Final examinations.
Conclusions
It has been held by the Supreme Court that although the power'conferred by s. 17(1) of the Industrial Disputes Act on an arbitrator isa wide one, it must be exercised in accordance with justice and equityand not arbitrarily, that is to say an arbitrator was under a duty to actjudicially: (1) South Ceylon Democratic Workers' Union v. Selvadurai
, (2) Heath & Company (Ceylon) Ltd. v. Kariyawasam (5), and (3)Nadaraja Ltd. v. Krishnadasan (6). Nevertheless the functions of anarbitrator do not involve the exercise of judicial power in the sense inwhich that power is exercised in the Courts. In Attorney-General ofAustralia v. Regina (7), Lord Simmonds held that .
"It.is desirable to repeat that the function of an industrial arbitratoris completely outside the realm of judicial power and is of a differentorder"-(1957) 2 A.E.R. p. 49 (P.C.).
The above finds expression in Article 170 of the 1978 Constitution ofSri Lanka. "Judicial Officer" is declared to mean, amongst others, apresiding officer or member of a tribunal established for theadjudication of a labour dispute. Thus the President of a LabourTribunal would be within this definition and would exercise judicialpower. But this Article also says that the said definition does notinclude a person who performs arbitral functions. Further no Court hasjurisdiction to determine the question whether a person is a 'JudicialOfficer' within the meaning of the Constitution.
1:1 Did the arbitrator exercise judicial power?
It was the submission of Dr. H. W. Jayewardene, Q.C. that in theinstant case however the Arbitrator had in fact exercised judicialpower. He identified the criteria for this submission as the fact that thearbitrator had made monetary awards against the petitioner underthree heads, i.e. :-
pension or gratuity;
encashment of leave; and
revision of salary.
Monetary award he characterised as the traditional exercise of judicialpower. As early as the Bribery Tribunal cases to wit: Senadhira v. TheBribery Commissioner (8) Sansoni J. had concluded that it wasdifficult to define the precise limits of ‘judicial power'. His Lordshipheld that as the Tribunal could inflict punishment by way of fine orimprisonment the Tribunal had been given a power of enforcing itsdecisions and concluded that the Tribunal when pronouncing uponguilt was exercising a judicial power. However, Tambiah, J. inPiyadasa v. The Commissioner (9) held that 'enforcement' was not anindispensible element of judicial power. His Lordship also correctlypointed out that the power of enforcement was not regarded as anessential element of judicial power in the United States of Americaeither.
The essential elements of judicial power discernible from thedecisions cited and discussed in the above cases appear to be-
settlement of a dispute,
with reference to existing legal rights and duties,
with a view to pronouncing a binding decision.
even without a power of enforcement.
Accordingly Tambiah, J. held that a Bribery Tribunal was vested withjudicial power.
This decision was canvassed in Ranasinghe v. Bribery Commissioner(10) and approved of by the Supreme Court and later by the PrivyCouncil although these Courts did not discuss the content of judicialpower.
The Industrial Disputes Act No. 43 of 1950 introduced mediation,conciliation and arbitration as methods of preventing or settlingindustrial disputes. Significant changes were introduced by theIndustrial Disputes (Amendment) Act No. 62 of 1957 which createdLabour Tribunals. In a series of cases the Act came under attack onthe basis that arbitrators. Industrial Courts and Labour Tribunals werein fact Courts and therefore appointments to these bodies made byany authority other than the Judicial Service Commission wereinconsistent with the Constitutional provisions. Walker v. Fry (supra)(3) and United Engineering Union and Devanayagam (supra) (1) werethe leading judgments on the question.
The Supreme Court in Walker v. Fry (supra) (3) by a majority heldthat the Labour Tribunals were judicial bodies. On appeal which camebefore the Privy Council as Devanayagam's case (supra) (1) the Boardlaid down that none of the institutions created by the Act wereintended as a Judicial Tribunal. The Privy Council approved of theminority opinion in Walker v. Fry (supra) (3) in viewing the legislativeplan of the statute as a whole in order to determine the questionwhether a Labour Tribunal was analogous to a Court of law. A basicpremise for the majority decision in Walker v. Fry (supra) (3) appearsto be the difference between the dispute settlement machineryintroduced by the original Act and the Labour Tribunals introduced in1957. The fact that Labour Tribunals ascertained existing legal rightsand liabilities and declared them prompted the majority of the Court toequate such a tribunal to a Court of law. In Walker v. Fry (supra) (3)Sansoni, J. also stated that—
”A perusal of the orders made by the Industrial Courtmisapprehending its functions and powers and true nature of dutiesit was authorized to perform under the Act heard evidence andultimately made orders which only a duty appointed judicial officer isentitled to make. It decided certain disputed questions of fact- (1)whether certain workmen were in fact employed by the petitioner(2) whether the discontinuance of certain workmen was justified ornot (3) whether the claim of the petitioner or of the workmen wascorrect in regard to the rates of wages to be paid. It then madeorder giving relief on these matters which only a duly appointedjudicial officer could have done.. . whether it is an Industrial Courtor an arbitrator acting under this Act, it seems to me that the onlypower they are authorised to exercise is arbitral power, that is, tomake an award which decides what the agreement between theparties would be in the future. They are not authorised to exercisejudicial power which is what they have done in the cases before us."
The applications concerning the arbitrators' awards were set downfor further argument before another Bench as they were not argued. InMoosajees Ltd. v. Fernando (11) acting on the decision in Liyanage v.Queen (12) it was decided that an arbitrator is not entitled by virtue ofthe separation of powers to exercise judicial power and therefore hasno jurisdiction to adjudicate upon existing rights.
Thus it was recognised that an arbitrator who made an order thenature of which amounted to an exercise of judicial power acted inexcess of powers.
It must also be noted that it was in Liyanage v. The Queen (supra)(12) that the Privy Council declared the source and basis of theprinciple that judicial power was impliedly vested in the judicaturealone to the exclusion of the executive and the legislature. The 1978Constitution has expressly vested judicial power in the Courts andofficers exercising such power must be appointed by the JudicialService Commission.
Viscount Dilhorne delivering the majority judgment inDevanayagam's case (supra) (1) accepted the proposition that-
"there are many positive features which are essential to theexistence of judicial power, yet which by themselves are notconclusive of it, or that any combination of such features will fail toestablish a judicial power, if, as is a common characteristic ofso-called administrative tribunals the ultimate decision may bedetermined not merely by the application of legal principles toascertained facts but by considerations of policy also".
The Privy Council also agreed with the unanimous view of theSupreme Court in Walker v. Fry (supra) (3) that arbitrators andIndustrial Courts were not intended by the legislature to exercisejudicial power but mere arbitral functions. It was also held that aLabour Tribunal, an Industrial Court and an arbitrator are all required todo what is just and equitable.
It is in this background that the submissions of petitioner’s counselthat in fact the arbitrator has exercised judicial power which he couldnot have uone has to be viewed. The dominant duty of an arbitrator isto make an award which appears to him just and equitable which dutyis identical to that imposed on a Labour Tribunal or Industrial Court.This was the view of the Privy Council in Devanayagam's case and isbinding authority even today. This duty has been defined as follows :
"The test of a just and equitable order is that those qualities wouldbe apparent to any fair-minded person reading that order"-(1970)78 C.L.W. 46, 48.
Again, an arbitrator is under a duty to act judicially-Ceylon TransportBoard v. Gunasinghe (13). The view that the duty to make a "just andequitable order" requires the Court's discretion to be exercisedreasonably and not arbitrarily-Ceylon Transport Board v. SamasthaLanka Motor Sevaka Samithiya (14).
The freedom to give reliefs which cannot be given by a Court of lawdoes not permit the Tribunal to misdirect itself on an extraneousmatter which formed the main reason for its decision-Hayleys Ltd. v.Crosette-Thambiah (15). The powers of a Labour Tribunal are limitedby the terms of reference and the existing law. In Shell Company ofCeylon Ltd. v. Pathirana (16) and approved by the Privy Council inDevanyagam's case, it was held that the power to grant relief is onlylimited by the duty to make a just and equitable order which is wide inview of the power to grant relief notwithstanding anything to thecontrary in any contract of service. It is not fettered by the terms ofthe contract between an employer and a workman; and it should be anorder which decides what the agreement between the parties shouldbe in the future.
Now, is the award granting a pension or gratuity specifying thepayment of sums of money in the circumstances the exercise ofjudicial power? Gratuities were ordered by a Labour Tribunal in a'retiral situation'-The National Union of Workers v. The ScottishCeylon Tea Company Limited (supra) (2). As stated earlier the duty tomake a just and equitable order was the same whether it be a LabourTribunal or arbitrator. Section 33(1) (e) of the Industrial DisputesAct makes provision that any award under the Act may containdecisions as to the payment by any employer of a gratuity or pension,the amount of such gratuity or pension and the method of computingsuch amount and the time within which such gratuity or pension shallbe paid.
Again, the dicta of Viscount Dilhorne quoted in that a single featureor a combination of them yet may fail to establish a judicial power is inmy view applicable in the present context. The feature relied upon isnot in my view characteristic only of judgments of Courts of law. Upona consideration of the nature of the award I am of the opinion that theaward does not reflect the exercise of judical power but is consistentwith the exercise of arbitral power. I accordingly reject the submissionsof learned Queen's Counsel in this regard. The awards made mayproperly have been made in the exercise of arbitral power.
1:2 Excess of Power
now turn to the next question whether the award of the payment of apension or in the alternative, a gratuity has been made in excess ofpowers. Such an excess of power could be occasioned by an abuse ofdiscretionary power, the reliance of irrelevant considerations inreaching a decision or patent unreasonableness. Here, the main pointof the petitioner is that the Rules do not permit retirement before timeor resignation plus pension and the award is coloured by bias and anunfounded and unjustifiable emphasis placed on what the arbitratortermed discriminatory tactics.
On the Rules, learned President's Counsel of the respondentsubmitted that the respondent had made a mistake in requestingpermission to retire under Rule 37 of A62-vide A14. That was notthe rule which should have been considered. Instead, Rules 15 and 11of the Pension Rules, R1, are those that properly govern the situationunder consideration. I reproduce them for convenience-
Rule 15: No employee on the staff in India shall be entitled topension until he shall have completed 25 years. Therespondent had this qualification and could claimentitlement to pension.
Rule 11: Retirement shall be subject to the sanction of the ExecutiveCommittee. Any officer who shall leave without sanctionshall forfeit all claim upon pension fund.
The submission of counsel was that before it reached stage 2 of Rule
the Bank could well have in a fair and proper exercise of discretionallowed the respondent to retire. The issue here was whether therehas been a fair and proper exercise of discretion in refusingrespondent's request. Counsel submitted there was not.
The question I am faced with then is whether there are factors ormatters the Tribunal could have considered as that which the Bankought to have taken into account in considering the request forpermission to retire.
I would say, in the first place, the Bank in the light of his servicerecord should have, despite A14 considered his request in the light ofRules 15 and 11 of the Pension Rules, R1 as they are no doubt theapplicable rules. Rule 37 of A62 under which the respondent appliedis obviously mistaken and inappropriate. It amounts to saying-"Pleaseask me to retire". If the Bank considered the request properly as statedabove the Bank would note that the respondent has reached an age ofentitlement to pension. Now, is there an acceptable reason why theBank's discretion could have been exercised favourably. Thereappears to be one, namely, that in A14 the respondent says-
"there are very limited opportunities for me to advance in
service in this branch…. the principal one is the fact that in view ofthe recent legislation requiring the Bank to incorporate itself in SriLanka I have no guarantee of the continued existence of this Bank inSri Lanka."
This was a factually correct statement. There was in fact a law passedrequiring foreign companies to incorporate in Sri Lanka but laterexemptions were given. This law was after termination ofrespondent's services. So there was uncertainty in the mind of theworkman regarding his future employment. Tennekoon, C.J., in themajority judgment dealing with payment of retirement benefits had thisto say-
"There are a number of situations in which it is accepted practiceto grant retirement benefits notwithstanding that there is atermination of services prior to a predetermined age of retirement.Sickness or physical infirmity, a material alteration in the conditionsof service. In Government service Constitutional changes of a radicalnature have been regarded as an appropriate occasion for the grantof the right of retirement.
So too has abolition of office and a change in the official language.These may all be regarded as 'retiral' situations.
These questions will have to be decided as and when they arise in thecontext of the facts of each case-National Union of Workers v.Scottish Ceylon Tea Company Ltd. (supra) (2). Sharvananda, J. as hethen was widened the scope of the payment of retirement benefits toinclude a duty to pay a workman for long and faithful serviceirrespective of a retiral situation in expressing the minority view. Thisview has been endorsed by His Lordship in Y. G. de Silva v. AssociatedNewspapers of Ceylon (17). When the workman here says that hefears that the Bank may close its branch in Colombo it amounts to fearof an impending abolition of office or loss of career. This in my view
would be a situation in justice and equity where the accepted practicein the light of the previous experience of the Bank in taking intoaccount special situations would demand a retirement benefit for aworkman who has already served 25 years. Thus there was goodground, a relevant circumstance stated in A14 which should havebeen taken into account by the employer, reaching a decision in thisinstance. The Bank has apparently not considered this factor inreaching its decision to withold permission. There is no evidence thatit did. The arbitrator has in the course of his order referred toentitlement to pension under Rule 15 and has stated that withholdingpermission to retire under Rule 11 was unjust. The Arbitrator hasrejected the petitioner's submission that entitlement is governed byretirement and not resignation. The petitioner is arguing from after thefact of resignation. What the arbitrator holds is that the first questionto be considered is the correctness of the exercise of discretion in notagreeing to the request for retirement before the actual retirement. Sohe holds that the withholding of permission was unreasonable. It is afact that the Bank had the right to allow the request in its discretion.This is a proper evaluation of the claim to pension upon the Bank'srules. The Tribunal has in my mind correctly exercised its discretionarypowers in making a just and equitable order. His decision is supportedby the evidence. The quantum of the award-a sum of Rs. 1,000 permonth for life is within the permissible limits of the rules and decidesthe relationship between the parties for the future. Ordinarilyretirement in full time on pension results in a continuing relationshipbetween employer and workman regarding payment of pension. In theresult the prayer for a mandate in the nature of a Writ of Certiorari toquash the award of pension made by the arbitrator must be refused.
1:3 Award of Gratuity
Here the arbitrator has examined the state of the law in regard to thepayment of gratuity. The judgment of Sharvananda, C.J. in Y. C. deSilva v. Associated Newspapers of Ceylon (supra) (17) alreadyreferred to had not been delivered at the time of the award.Nevertheless for the reasons I have given in dealing with the award ofPension it is apparent that a 'retiral' situation as envisaged byTennakoon, C.J. had arisen in this instance. The arbitrator's appliedthe rationale of that judgment, i.e.' by reference to 'discrimination' thearbitrator seeks to establish a 'retiral' situation as explained byTennakoon, C.J., i.e. the employee was compelled to volunteer
resignation or termination of his services. Therefore it must be takenas a 'retiral' situation which entitled him to gratuity. On the question ofdiscrimination, there were those four instances where the Bank hadpermitted early retirement. The circumstances set out in A14 toocould be categorised as special circumstances attracting a favourableexercise of discretion. But it was not so treated.
The industrial Disputes Act permits an arbitrator to make an award ofgratuity-s. 33(1 )(e). The definition of 'Industrial Dispute' under s. 48includes a termination of services (however caused). The arbitratormakes a just and equitable award. Gratuity is a retirement benefit thatmay be incidental to or granted in the absence of pension. There neednot be a scheme of gratuity. It is incidental to the terms of reference.
In the above circumstances the arbitrator has exercised hisdiscretion in awarding gratuity on good grounds in a reasonable andproper manner in justice and equity. I cannot fault this alternativeaward. I do not see any abuse of discretionary power on the part ofthe arbitrator. Again, patent unreasonableness as a ground ofchallenge was described in Associated Provincial Picture House Ltd. v.Wednesbury Corporation (18) as-
“Where a decision is so unreasonable that no reasonable authority
could ever have come to it, then the Courts can interfere; to prove a
case of that kind would require something overwhelming."
Learned counsel for the petitioner referring to the phraseology used bythe arbitrator and the extent to which he has used the yardstick ofdiscrimination submitted it was without warrant and indicative ofpatent unreasonableness in the awards made. In regard to'discrimination' what the arbitrator in effect says is that there was aspecial situation in the respondent's plea for permission to retire after25 years when he was about to reach 50 years of age which shouldhave had a special response. Compare that response with theresponses of the Bank to the special situations in the cases of Daniel,Paul, Cleghorn, John Pillai and Jeffry. There is an unexplaineddifference. The occasional outbursts of overemphasised orintemperate language does not in my view go anywhere near showingpatent unreasonableness as explained affecting the validity of theaward. Nor does it show bias against the Bank. An arbitrator is entitledto express disapproval of an employer's conduct strongly. Havingregard to the fact that the employer is a Bank the quantum of the
award is reasonable. For these reasons I refuse the application for awrit of certiorari to quash the alternative award of gratuity. As I haveupheld the award of pension, the award of gratuity is no longerapplicable.
1:4 Encashment of lieu leave
The evidence of witness da Cunha, the Managing Director was thatany accumulated leave to the credit of an officer lapses at time ofcessation of employment. There is no provision in the Rules-A64 forthe payment to an officer an account of unutilized leave. The workmanif he was entitled to leave could have utilized it before he left theservice of the Bank. The respondent however, anxious to take up hisnew employment left the Bank without utilizing any accumulated leave.The workman did not even give the Bank the requisite three (3)months notice but prayed that it be waived which was granted.Circular A36 upon which the workman based his claim was meantonly for Indians.
The arbitrator has acted on A36 in the context of his findings ofdiscrimination. I find that on the reverse of A36 is a seal indicating thatthe document originated in the Madras office. That lends credence toda Cunha's testimony that this circOlar was meant only for Indians.That would represent the policy of the Bank in making specialprovisions for Indian nationals working abroad. The Bank is entitled tothis. This being the policy of the Bank affecting all Ceyionese officersworking at the Colombo branch, including John Pillai, the allegation ofdiscrimination against the respondent, even if it be true, cannot affectthe Bank's right to have separate provisions for its expatriateemployees in respect of encashment of lieu leave. Thus the award of asum of Rs. 16,300 under the head of unutilized leave cannot besubstantiated. There is nothing to support the respondent’s evidenceon this point except the circular A36 itself. The question cannot beresolved on A36 alone. The issue of a writ quashing the award underthis head is therefore warranted for error of law within jurisdiction.
1:5 Revision of Salary
The workman claimed revision of salary on the basis of staff circular'1A1'of 31.3.71. The workman made respresentations to the Bankby A7 asking that '1A1' be made applicable to him. The agent repliedby A9 that the circular was not applicable to Ceylonese officers but
only to officers of the Bank serving in India. In view of furtherrepresentations the Board of Directors themselves resolved that thesalary proposals were applicable only to Indians serving in India andthis was conveyed to the respondent by A10. The officers in Colomboenjoyed different terms and conditions of employment. The workmanhas accepted these terms by A27.
The arbitrator has made an award of a sum of Rs. 24,805 for theperiod 1.1.70 to 20.4.75 acting on the contents of document '1A1 ’alone. This he cannot do. Documents A9 and A10 explain theapplication of '1 AT, A9 and A10 represent the general policy of theBank for the revision of salaries of its nationals which is not within thepurview of the arbitrator to reject. There was thus an error of lawwithin jurisdiction. Consequently the award under the head of'Revision of Salary' needs to be quashed by certiorari.
For the reasons enumerated above with which my brotherWijetunga, J. agrees I refuse a mandate in the nature of a Writ ofCertiorari to quash the award made by the arbitrator under the headsof Pension and numbered (1) in the final award. I also refuse a Writ ofCertiorari to quash the alternative award of a gratuity made by thearbitrator and numbered (iv) in his final award. This alternative awardof gratuity is irrelevant and inapplicable as the award of pensionstands.
I allow the application for a Mandate in the nature of a Writ ofCertiorari to quash the award under the head-Encashment of leave ina sum of Rs. 16,800 and numbered (ii) in the final award of thearbitrator.
I also allow the application for a Mandate in the nature of a Writ ofCertiorari to quash the award under the head-Revision of salaryallowance in a sum of Rs. 24,805 and numbered (iii) in the final awardof the arbitrator. The petitioner will pay a sum of Rs. 1,050 as costs.
WIJETUNGA, J.-I agree.
Application for certiorari in respect of pension and gratuity refused butallowed in respect of encashment of lieu leave and revision of salaryallowance.