CEYLON HOTEL CORPORATION LTD VS MINISTER OF LABOUR

CEYLON HOTEL CORPORATION LTD.
VS. MINISTER OF LABOUR

COURT OF APPEAL
SRISKANDARAJAH.J.
CA 337/2007 (A 1119)
MARCH 20, 2009
JUNE 5, 8, 2006

Writ of certiorari - Industrial Disputes Act Section 4(1) - Arbitrator dying before delivery of Award - Respondent revoking order appointing arbitrator and appointing new arbitrator - Legality? Party dying - wife substituted - Adoption of proceedings by new arbitrator - Validity   death of employee - status of wife - quashing of a frustrated order-

The claim by the respondent - employee for service charges, residence (food and lodging) expenses and annual bonus was refused by the petitioner Corporation matter was referred for arbitration. The first Arbitrator died on 24.10.1004 before the. delivery of the arbitral award. The Minister thereafter revoked the reference and made a fresh order in terms of Section 4(1) and appointed the 3rdrespondent as arbitrator, The new arbitrator sought to adopt the evidence already led.

It was contended by the respondent that, the reference is not valid as there is no industrial dispute between the parties - that, the Minister cannot revoke the order and appoint another.

Held

(1) On the death of the Arbitrator the Minister can appoint a new arbitrator.

Per Sriskandarajah. J.

"There is no occasion to withdraw or supersede any reference from the arbitrator, the arbitrator has ceased to function and there is a frustration of the reference and there is in existence no arbitrator who could act on such reference. "Quashing of a frustrated order is futile."

(2) Arbitration proceedings will not come to an end with the death of the workman. The disputes referred for arbitration is in relation to the payment of money due to him as benefits during his period or interdiction. The rights accrued to the workman in the said sum of money is a vested right and it will not get extinguished with the death of the workman.

(3) One cannot argue that with the death of the workman his status as a workman ceased to exist, because of the fact that a workman remains a workman for the purpose of the Industrial Disputes Act even if he ceased to be in employment. Arbitration proceedings can proceed exparte.

(4) The evidence is mostly based on documents and submissions the demeanour of witnesses has hardly any bearing to these proceeding. Hence the adoption of the proceedings will not cause any prejudice to any party.

APPLICATION for a Writ of Certiorari.

Cases referred to:

1. Nadaraja Ltd (on Voluntary Liquidation) and 3 others vs N. Krishnadasan and 3 Others 78 NLR 259

2. P. S. Bus Co. vs. Members & Secretary of the Ceylon Transport Board 61 NLR 491.

3. Air Vice Marshall Elmo Perera liS. Liyanage and others -'2003 - 1Sri LR 337 at 340.

Uditha Egalahewa with Gihan Galabodage for petitioner

Deepthi Tilakawardane SC for 1st and 2nd respondents

R. S. Sirisena for 4th respondent.

Cur.adv.vult

September 22,2009
SRISKANDARAJAH. J.

    The petitioner Corporation recruited Mr. A. K. Cuttilan to the post of Receptionist cum Clerk with effect from 19th August 1968. Thereafter, he served at Madawachchiya and Pussellawa Rest Houses and finally as the Manager at

Hanwella Rest House. When Mr. Cuttilan was serving as the Manager of the said Hanwella Rest House, he was interdicted with effect from 05th February 1986. After a disciplinary inquiry he was exonerated from the charges and he was reinstated with back wages with effect from 20th March 1991. Mr. Cuttilan by document dated 28th February 1996 claimed for service charges, residence (food and lodging) expenses and annual bonus which he is entitled to during the said period of his interdiction from 05th February 1986 to 20th March 1991. This claim was rejected by the Petitioner.

    Mr. Cuttilan made a complaint to the 2nd Respondent on 26th August 1996 claiming that the Petitioner Corporation had failed to pay the said claims and requested the 2nd

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