Judgment

Harun J

1. This was an application for an order of certiorari to quash an order of Reference made by the Minister of Labour to the Industrial Court.

2. For the purpose of the hearing of the aforesaid application, the applicant obtained a subpoena duces tecum directing the Director-General of Industrial Relations to produce inter alia two reports viz.,

   1. Report of the Regional Director of Industrial Relations (Selangor & Pahang) to the Director-General of Industrial Relations on conciliation proceedings pursuant to s 20(2) of the Industrial Relations Act, 1967; and

   2. Report of the Director-General of Industrial Relations to the Minister of Labour pursuant to s 20(3) of the Industrial Relations Act, 1967.

3. The first and second respondents objected to the production of these two reports on the ground that they relate to affairs of State and claimed privilege under ss 123 and 162 of the Evidence Act, 1950.

4. The question then is whether these two reports are unpublished official records relating to affairs of State within the meaning of s 123 of the Evidence Act which reads:

   No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withhold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Federal Government, and of the Chief Minister in the case of a department of a State-Government.

5. By s 162 of the Evidence Act, it is for the court to decide on the validity of any objection to the production of a document on which privilege is claimed under s 123 of the Evidence Act and determine its admissibility in an enquiry of all available evidence. Section 162 reads:

   (1)	A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility The validity of any such objection shall be decided on by the court.
   (2)	The court, if it see fit, may inspect the document unless it refers to affairs of State, or take other evidence to enable it to determine on its admissibility.

6. In the instant case, the evidence on the objection to the production and admissibility of the two reports are to be found in three affidavits viz.,

   1. The Deputy Director-General of Industrial Relations who in his affidavit merely stated the events leading to the report of the Director of Industrial Relations (Selangor & Pahang);

   2. The Minister of Labour who in his affidavit asserted that he had the power to refer the matter to the Industrial Court; and

   3. The Secretary-General of the Ministry of Labour who in his affidavit stated inter alia:

   (3)	The said Conciliation Proceedings was carried out as a department conciliation proceeding to resolve the differences between the parties: There was free discussion at conciliation levels, and what was said was made in strict confidence.
   (4)	The reports of the Regional Director of Industrial Relations dated 19 January 1977 and the Director General of Industrial Relations dated 3 February 1977 contain statements of facts, remarks, opinions and recommendation of witnesses and members of the Conciliation Proceedings, all given in strict confidence to the Department.
   (5)	I personally and carefully perused and considered the said reports and I am of the opinion that it would be detrimental to the public interest to disclose the contents of the said reports which were furnished for the guidance of my Ministry. This report is always referred to the Minister in an advisory capacity by the Director General of Industrial Relations.
   (6)	Disclosure of the said reports will be prejudicial to the public service since maintenance of secrecy of such documents is necessary for the proper functioning of departmental proceedings. Moreover I have examined the said documents and I am satisfied that the said documents are unpublished records relating to affairs of the State.

7. “Affairs of State” is not defined in the Evidence Act because each case has to be decided on its merits. The primary consideration is whether disclosure will be injurious to the public interest. Obvious examples where it is against the public interest to disclose are Cabinet papers and matters relating to national security or diplomatic relations with foreign countries. Prima facie a dispute between an employer and employee arising out of a contract of service could hardly be said to be an affair of State within. the meaning of s 123 of the Evidence Act. What then if the Minister intervenes in the dispute.

8. One of the objects of the Industrial Relations Act is the settlement of disputes between employers and employees. The Act provides for machinery to settle disputes by conciliation as speedily as possible and if that fails the dispute is referred to the Industrial Court where the dispute is resolved with the minimum of formality.

9. In the instant case, the relevant provisions of the Act which are applicable to this dispute are:

   20.	(1)	Where a workman who is not a member of a trade union of workmen considers that he has been dismissed without just cause or excuse by his employer he may, within one month of the dismissal, make representations in writing to the Director-General to be reinstated in his former employment; the representations may be filed at the office of the Director-General nearest to the place of employment from which the workman was dismissed.
   	(2)	Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at within a period of not more than thirty days from the date of receipt of the representations. Where the Director General is satisfied that there is no likelihood of the representations being settled within the said period of thirty days or where the representations remain unsettled at the end of the said period of thirty days the Director General shall notify the Minister accordingly.
   	(3)	Upon receiving the notification of the Director General under sub-s (2), the Minister may, if he thinks fit, refer the representations to the court for an award.

10. The application for an order of certiorari is being made on grounds of breach of natural justice and excess of jurisdiction on the part of the Minister. It becomes necessary, therefore, for the court to have all the facts at its disposal which led the Minister to make the reference to the Industrial Court. In this context, the Director of Industrial Relations (Selangor & Pahang), the Director-General of industrial Relations and the Minister were all exercising quasi-judicial functions in a dispute between two subjects. There is nothing in the proceedings under s 20 that could involve State secrets or national policy. The report of the Regional Director could only contain the statement of facts as put forward by each side and the steps taken at conciliation. The Report of the Director-General to the Minister could only be his reasons for being satisfied that a settlement could not be reached within 30 days. Merely because the Minister exercised functions under the Act does not make the matter an affair of State. For these reasons, I held that reports under s 20(2), of the Industrial Relations Act are not official records relating to affairs of State within the meaning of s 123 of the Evidence Act.

11. Reference was made to s 54(2) of the Act which reads:

    In a proceeding before the court on a reference to the court under s 20(3), no evidence shall be given of any proceeding before the Director General. Under s 20(2) other than a written statement in relation thereto agreed to and signed by the parties to the reference.

12. “The Court” in this section means the Industrial Court. Conciliation proceedings are held on a without prejudice basis and the parties may have agreed to settle on certain conditions. Failing settlement, the dispute is revived again and the Industrial Court hears the evidence afresh. The exclusion of evidence of the proceedings under s 20(2) is to avoid prejudice in the mind of the Industrial Court against either party These considerations do not apply to the High Court in hearing an application for an order of certiorari and indeed s 54(2) is of very limited application viz.: to proceedings before the Industrial Court under s 20(3).

13. In this court the issues are different. Was it right for the third respondent to make the representation under s 20(1) and if so was this a proper case for the Minister to refer the matter to the Industrial Court. To enable this court to make a decision, it must know whether the provisions of s 20 have been complied with and this it may only do with a full disclosure of the events that have happened leading up to this application.

14. For these reasons, I ordered that the second respondent produce the two reports referred to in the subpoena duces tecum.[a]

Cases

State of Punjab v Sodhi Sukhdev Singh AIR 1961 SC 493; State of Utter Pradesh v Raja Narain Singh AIR 1975 SC 865; M & W Grazebrook v Wallens (1933) ICR 256; Conway v Rimmer & Anor [1968] 1 All ER 874; Norwich Pharmacal Co v Customs & Excise Commissioners [1974] AC 133; Amar Chand Butail v Union of India AIR 1964 SC 1658; Haralal Sadasheorao Bande v State Industrial Relations Court Nagpur [1967] Bom 174; BA Rao v Sapuran Kaur [1978] 2 MLJ 146

Legislations

Evidence Act: s.123, s.162

Representations

CV Das (P Royan with him) for the applicant.

Fong Seng Yee (Senior Federal Counsel) for first & second respondent.

VT Nathan (Norbert Choong with him) for 3rd respondent.

Notes:-

[a] The Minister appealed against this decision. The Federal Court (Wan Suleiman FJ, Syed Othman FJ & Ibrahim Manan FJ) on 15/9/1980 dismissed the appeal. See Min of Labour & Manpower v Wix Corporation SEA Sdn Bhd [1980] Part 4 Case 13 [FCM].