Legal Services and Laws of Sri Lanka


SLR-2001 Vol.1-P105

SLR - 2001 Vol.1, Page No - 105

EKSATH KAMKARU SAMITHIYA

v.

UPALI NEWSPAPERS LTD AND OTHERS
SUPREME COURT

FERNANDO, J.

WIJETUNGA, J. AND

ISMAIL, J.

SC APPEAL NO. 70/99

CA WRIT APPL. NO. 615/96

LT NO 2/A/ 1/89

12TH AND 30TH JUNE 2000
Writ of certiorari- Industrial dispute - Termination of services -Application to a Labour Tribunalforrelief-Section31
B(1) of the Industrial Disputes Act - Reference of the same dispute for settlement by arbitration under section 4(1)ofthe
Act-Jurisdiction of the Minister to refer the dispute -Articles 170, 114 and 116(1) of the Constitution.

The services of seven employees of Upali Newspapers Ltd., the petitioner-respondent were terminated between 16.04.88and
19. 04. 88. The 1st respondent-appellant, a registered trade union filed applications on behalf of six workmen whowereits
members seeking relief in the Labour Tribunal Colombo in terms of section 31B(1) of the Industrial DisputesAct(theAct).
While these applications were pending, the Minister of Labour acting under section 4(1) of the Act made an order on21.09.
89 referring the dispute regarding the dismissal of all seven employees for settlement by arbitration by the4threspondent
who was also the President of the Labour Tribunal before whom the six applications had been filed. Whenitwasbroughtto
the notice of the Tribunal that the identical disputehadbeenreferredforarbitration,theapplicationsbeforethe
Tribunal were dismissed.

The arbitration procedure commenced on 17. 01. 90 and by his award dated 23. 03. 96, the arbitrator directed that two ofthe
workmen be re-instated with compensation.

On the application of the petitioner-respondent the Court of Appeal quashed the award by certiorari onthegroundthatit
was made without jurisdiction.

Held :
In view of Article 116(1) of the Constitution, the Minister had no power to refer the dispute regardingtheterminationof
services for
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compulsory arbitration when applications in respect of the said dispute were pending in the Labour Tribunal. Such reference
would infringe and violate the principle of the independence of the judiciary, enshrined in Article 116 of the Constitution.

APPEAL from the judgement of the Court of Appeal reported in (1993) 3 SRI LR 205.

C. Hewamanage for 1st respondent-appellant.

Anil Tittawela for petitioner-respondent.

Ms. Demuni de Silva, Senior State Counsel for 2nd and 3rd respondents-respondents.
Cur. adv. vult.
August 24, 2000.
ISMAIL, J.
The services of seven employees of Upali Newspapers Ltd., the petitioner-respondent, were terminated betweenthedates16.
04. 88 and 19. 04. 88. The 1st respondent-appellant, a registered trade union, filed applications on behalfofsixworkmen
who were its members seeking relief in the Labour Tribunal, Colombo in terms of section 31B(1)oftheIndustrialDisputes
Act.

While these applications were pending before the Labour Tribunal, the Minister of Labour,actingintermsofthepowers
vested in him under section 4(1) of the Industrial Disputes Act, made an order on 21. 9. 89 referring thedisputeregarding
the termination of all seven workmen for settlement by arbitration before the 4threspondent-respondentwhowasalsothe
President of the Labour Tribunal before whom the six application were filed.
The applications filed on behalf of three workmen bearing Nos. 2/461/88, 2/462/88 and 2/463/88 were dismissed on
107
02. 09. 89. The applications bearing Nos. 2/464/88 and 2/465/88 were dismissed on 02. 0.1. 90. TheapplicationbearingNo.
2/466/88 was also dismissed on 04. 01. 90. Four of these applications were dismissed by the Tribunal uponitbeingbrought
to its notice by both parties that the identical dispute had been referred by the Minister forcompulsoryarbitration:Two
of the applications were dismissed on the same ground on the application made by the employer.
The proceedings before the Arbitrator commenced on 17. 01. 90 and by his award made on 23. 03. 96, he directed thatfiveof
the workmen be reinstated with compensation calculated on the basis of their period of service.
The petitioner-respondent being aggrieved by that award filed an application in the Court of Appeal for a writ ofcertiorari
to have it quashed. The Court of Appeal by its judgment dated 19. 03. 99 quashed the award of the arbitratorontheground
that it was made without jurisdiction.

The 1st respondent-appellant was granted special leave to appeal to the Supreme Court on 18. 08. 99 on the questionsoflaw
set out in paragraph 11 (a) to (d) of the petition and on the following two questions
1. Has the Court of Appeal erred in the interpretation of Article 116(1) of the Constitution

2. Does the Minister have power under section 4(1)oftheIndustrialDisputesActtoreferamattertoarbitration
notwithstanding the pendency of a Labour Tribunal application?
The only matter urged by counsel on behalf of the employer at the hearing in the Court of Appeal was thattheMinisterhad
no power to refer a dispute for settlement by
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arbitration in terms of section 4(1) of the Industrial Disputes Act while applications in respect of the same dispute were
pending in the Labour Tribunal.

The Court of Appeal held as follows:
"The combined effect of the provisions of InterpretationArticle170,Articles114and116isthatthedecisionin
Wimalasena v. Navaratne and others (1978-79) 2 SLR 10, can no longer be considered as validauthorityfortheproposition
that the Minister has unlimited powers under section 4(1) of the Industrial Disputes Act which would enable himtorefera
dispute which is pending before a Labour Tribunal to an Arbitrator for settlement. Such an interpretationwouldnecessarily
infringe and violate the principle of the independence of the judiciary enshrined in Article 116 oftheConstitutionwhich
is paramount law".

I have considered the matters set out in the written submissions tenderedbycounselonbehalfofthe1strespondent-
appellant. However, I see no reason to interfere with the finding of the Court of Appeal.

I accordingly hold that the Court of Appeal has not erred in the interpretation of Article 116(1)oftheConstitutionand
that the Minister had no power to refer the dispute regarding the termination of servicesforcompulsoryarbitrationwhen
applications in respect of the said dispute were pending in theLabourTribunal.Inthecircumstancesitwillnotbe
necessary to deal with the other questions of law set out in paragraph 11 of thepetitionwhichwerenotraisedbythe
appellant in the Court of Appeal.
Counsel for the 1st respondent-appellant submitted that, despite its finding, the Court of Appeal haserredinfailingto
restore the six applications for further hearing by the Labour
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Tribunal as the employer too had consented and moved for an order of dismissal of the applications in view ofthereference
to arbitration. The withdrawal of an application pending before a Tribunal is essentially a matterfortheapplicant.The
aquiescence of employer in an order of dismissal being made in these circumstances cannot be a reason for there-hearingof
the said applications that have already been dismissed.

For the reasons set out above the appeal is dismissed without costs.

FERNANDO, J. - I agree.
WIJETUNGA, J. - I agree.
Appeal dismissed.


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