ASIAN HOTELS & PROPERTIES PLC VS.
BENJAMIN AND 5 OTHERS

SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE,C.J.,
EKANAYAKE, J AND
IMAM,J.
S.C. APPEAL NO. 143/2010
S.C. (SPL) L.A. NO. 132/2010
C.A. APPL. NO. 4/2009 (WRIT)
MARCH 29TH, 2011

Industrial Disputes Act· Section 3(1)d, Section 4(1), Section 36(4),Section 17(1) - Duties and powers of arbitrator in settlement of disputes by Arbitration - Discretion of the Arbitrator to award just and equitable relief - Audi alteram partem - both sides shall be heard. Provisions of the Evidence Ordinance - Necessity to comply? Evidence ordinance Section 2, Section 114(f)

The 1st Respondent - Respondent (1st Respondent) was employed by Messers-Crescat Developments Ltd. as the Manager. Apartments Leasing and Rentals which was a subsidiary of the Petitioner - Appellant (Appellant). After holding an inquiry, the Appellant had terminated the 1st Respondent's services. The 3rd Respondent. The Minister of Labour Relations referred the dispute between the 1st Respondent and the appellant for arbitration before the Arbitrator (the 4th Respondent). The purported dispute according to the Appellant was,

1. whether the termination of the services of the 1st Respondent by the Appellant is justified and if not, to what relief he is entitled; and/or

2. whether the granting of annual bonus for the financial year 2003/2004 to the 1st Respondent by the Appellant is justified, and if not to what relief he is entitled.

At the arbitral proceedings, when the inquiring officer before whom the domestic inquiry of the 1st Respondent was held, was summoned to produce the entire record of the domestic inquiry, the 1st Respondent for the first time had objected to the production of the proceedings of the domestic inquiry, on the ground that it is a violation of the audi alteram partem rule.

The 4th Respondent made order upholding the objection raised by the 1st Respondent and held that the domestic inquiry proceedings cannot be marked until the witnesses who gave evidence at the domestic inquiry are called upon to testify and disallowed the application to mark the domestic inquiry proceedings through the inquiring officer before whom the domestic inquiry of the 1st Respondent was held.

The Appellant filed an application in the Court of Appeal seeking a Writ of certiorari on the basis that the said order of the 4th Respondent is unlawful and/ or invalid.

The Court of Appeal dismissed the said application on the basis that the marking of the domestic inquiry proceedings would cause prejudice to the 1st Respondent, as one of the witnesses at the domestic inquiry had not been produced as a witness before the arbitration.

Held:

(1) When an industrial dispute is referred to an Arbitrator to adjudicate upon it, such an order has to be based on just and equitable relief. For the purpose of granting such relief there is no necessity for the Labour Tribunals to follow the rigid rules of Law.

per Dr. Shirani A. Bandaranayake, C.J. -

"As the Labour Tribunal should dispense just and equitable relief, to arrive at their decisions, they would not require strict degree of proof that is required in a Court of Law since there is no necessity to comply with the provisions of the Evidence Ordinance. Further Sections 36(4) of the Act specifically states that strict compliance with the provisions of the Evidence Ordinance is not required."

(2) The steps that were taken by the Arbitrator in his refusal to accept the proceedings of the domestic inquiry is a clear violation of the rules of natural justice.

APPEAL from the Judgment of the Court of Appeal.

Cases referred to:

1. Kalamazoo Industries Ltd. and others Vs. Minister of Labour and Vacational Trianing and Others- (1998) 1 Sri L.R. 235

2. The Bharat Bank Ltd., Delhi Vs. The Employees' of the Bharat Bank ltd, Delhi -AIR, 1950 SC 188

3. United Engineering Worker's Union Vs. K. W. Devanayagem -(1967) 69 N.L.R. 289

4.