WEERASOOMYA, S.P.J.—New Dimbula Co. Ltd. v. Brohier
. NEW DIMBULA CO. LTD. and another, and R. L. BROHIER and others,
S. C. 5S4 and 31—Applications for Writs of Certiorari and Mandamus
Industrial dispute—Unreasonable transfer of employee from one sphere of work toanother—Relief which arbitrator may award—Misdirection—Certiorari—Industrial Disputes Act (Cap. 131), as amended by Act No. 62 of 1957, ss.I (1), 17 (1), 33 (1).
Section 33 (1) (b) of the Industrial Disputes Act (as amended by Act No. 62of 1957) must be read as subject to the provisions of section 17 (1), ■whichempowers an arbitrator to mako such award as may appear to him just andequitable. Accordingly, where, in an industrial dispute referred to arbitration,the only question is whether an employee has been transferred unreasonablyand without sufficient cause by his employer from one sphere of work to another,it is open to the arbitrator, if ho finds that the employee was improperly trans-ferred, to ordor discontinuance of the employee’s services with com; ensaxion.
Where an arbitrator, when giving his award, misdirects himself ininterpreting a previous award in a different case, the misdirection would bean error of law on the face of the award and would render such part of theaward as is affected by the error liable to be quashed by certiorari.
Applications for certiorari and mandamus.
H. V. Perera, Q.C., with R. A. Kannangara and L. Kadirgamar,for petitioner in Application No. 584 and the 3rd respondent in Appli-cation No. 31.
S. Nadesan, Q.C., with G. D. C. Weerasinghe, for the 2nd respondentin Application No. 584 and the petitioner in Application No. 31.
No appearance for the other respondents in both applications.
Cur. adv. vult.
July 31, 1962. Weerasooriya, S.P.J.—
These two"applications relate to an award made by an arbitrator(who is the 1st respondent in both applications) to whom an industrialdispute was referred for compulsory arbitration under the provisions ofsection 4 (1) of the Industrial Disputes Act (Cap. 131) as amended bythe Industrial Disputes (Amendment) Act, No. 62 of 1957.
The parties to the dispute were the Ceylon Plantation Workers’ Union(the petitioner in application No. 584 and the 2nd respondentcation No. 31) and the then Superintendent of Diyagama East Estate,
wjsERASOORIYA, S.P.J.—New Dimbula, Co. Lid. v. Brohier
Agrapatna. The matter in dispute was whether the transfer of S.Ramasamy, an employee on the estate, from the power house to anotherdivision of the estate in a different capacity was justified and to whatrelief he was entitled.
Upon this .reference there ensued a prolonged inquiry before thearbitrator, who cannot, however, be held in any way responsible forthe undue length of it. If I may say so with respect to the partiesconcerned, both the time taken and the expense incurred over whatappears to have been a minor labour dispute (and it was on this basisthat the provisions of section 4 (1) were availed of by the Minister) areout of all proportion to the issues involved in it. The arbitrator byhis award dated the 11th November, 1961, held that the transfer ofRamasamy from the power house to the field was unreasonable andwithout sufficient cause. He accordingly granted relief to Ramasamyin the following terms contained in paragraph 11 of the award:
! “ I direct that S. Ramasamy be given a clear discharge from thedate this award is published in the Government Gazette, and that hebe paid the salary and allowance hitherto paid to him as an attendantin the power house up to the date of his discharge, together with anadditional payment of 3 months’ salary, calculated on the same basis,by way of compensation. I further direct that in recognition of his 'long and good record of service, which has been broken through nofault of his, Ramasamy be given further compensation by payment ofa month’s wages for every full year of service from the date of hisregistration on Diyagama (2nd) East Division to the date of his dis-charge. The payment will be calculated on a hypothetical figure of30 days per month and rated on the wage and allowances he drewon the date of his discharge .. .. ”
The petitioner in application No. 584 is the New Dimbula CompanyLimited, being the owner of the estate oh which Ramasamy is employed.The substantial prayer in this application is for a writ of certiorariquashing the sward of the arbitrator. This would include even thearbitrator’s finding that the transfer of Ramasamy from the powerhouse to the field was unreasonable and without sufficient cause. Mr.H. V. Perera who appeared for the petitioner did not, however,'challengethat finding, but he asked that the part of the award directing the termi-nation of Ramasamy’s employment with compensation as contained inparagraph 11 be quashed on the ground that it is in excess of the juris-diction of the arbitrator. That this part of the award be quashed isalso the prayer in application No. 31. There is a further prayer in itfor a writ of mandamus to compel the arbitrator to order a re-transferof Ramasamy to the power house with back pay from the date of the• original transfer.
Under section 17 (1) of the Industrial Disputes Act an arbitrator -towhom an industrial dispute has been referred for settlement by arbitrationis required to *c make all such inquiries into the dispute as he inay consider
382WEERASOGRIYA, S.P.J.—-New Dimbula Co.. Ltd. v. Brdhier
necessary, hear such evidence as may be tendered by the parties andthereafter make such' award as may appear to him just and equitable.”Mr. Nadesan, who appeared in support of application JNo. 31; submittedthat once the arbitrator held that the transfer of Ramasamy from thepower house to the field was unreasonable and without sufficient causethe relief that should have been granted was an order directing there-transfer, of Ramasamy to the power house with back pay. Heconceded, however, that no mandamus would lie to compel the arbitratorto give this or any other specific form of relief.1
In ordering that Ramasamy be given the relief set out in paragraph 11of the award, the arbitrator purported to follow a previous award thematerial part of which is quoted in paragraph 10 of the award. Para-graph 10 reads—
“ 10. I come now to the latter part of my directive : . to whatrelief is Ramasamy entitled. In this connection I would quote fromthe award in I. D. 97 published in Government Gazette No. 11,633 of2nd January, 1959 :
4 It is a well-recognized principle of industrial law that the normalremedy for wrongful dismissal is reinstatement. It is also clear fromthe Act itself that in the industrial sphere, such an order cannot withimpunity be made in all cases, regardless of the particular set of cir-cumstances concerning each case, and the type of work the employeesare engaged in. What is contemplated by the Legislature is thatcompensation as an. alternative to reinstatement, is both expedientand desirable when either party is averse to the proposition of rein-statement. It is not conducive to the maintenance of cordial employer-employee relations and the preservation of industrial peace to ordetfreinstatement indiscriminately 'i
Then he went on to say: “It transpired in evidence that the Superin-tendent had recently moved to a new charge. Taking all the circum-stances highlighted in this arbitration into consideration, I do not feelthat it will be in the interests of either employee (Ramasamy) or theemployer, who has since taken over the charge, for me to orderreinstatement.”
But that award dealt with the question of the relief that should begranted in a case of rongful dismissal, and it was held there that althoughthe normal remedy for wrongful dismissal is reinstatement, compen-sation may in an exceptional case be ordered in lieu of reinstatement.In the present case, however, the question of reinstatement does notarise for consideration. It would seem, therefore, that there wasmisdirection on the part of the arbitrator in regarding the two cases ascomparable and in stating that he did not feel it would be in the interestsof the employee or the employer to order reinstatement in the present. case. A misdirection such as this would be an error of law on the faceof the award which renders such part of the award as is affected by the
WEERASOORIYA;S.P.J.—New Dimbula Co. Ltd. v. Brohier •
error liable to be quashed. The misdirection appears to have led thearbitrator to make the order that the services of Ram? samy be terminatedwith compensation as the appropriate relief to be granted in this.case.Both Mr. Perera and Mr. Nadesan urged as an additional ground* forquashing this part of the award that it is in excess of the arbitrator’sjurisdiction.
Section 33 (1) of the Industrial Disputes Act sets out certain decisionswhich may be embodied in the award of an arbitrator. – Although theseprovisions are not exhaustive it is relevant to note that under section33 (1) (6) an award may contain decisions “as to the reinstatement inservice, or the discontinuance from service, of any workman whosedismissal or continuance in service is a matter in dispute, or who wasdismissed or ceased to be in service at the commencement or in the courseof any strike or lock-out arising out of the industrial dispute.”
The question that arises, therefore, is whether in a case like this,where the only dispute is in regard to the propriety of the order of theSuperintendent transferring the employee from one sphere of work toanother, it is open to the arbitrator to order discontinuance of theemployee’s services. Clearly, the present case does not come withinthe terms of section 33 (1) (6). The provisions of section 33 (1) are, how-ever, expressly stated to be without prejudice to the generality of thematters that may be specified in an award. An indication of the genera-lity of the matters that may be specified in an award is to be found insection 17 (1), which empowers an arbitrator to make such award as mayappear to him just and equitable. His power to include in an award adecision as to the discontinuance of a workman from service cannot,therefore, be limited to the instances mentioned in section 33 (1) (6),and I am unable to hold that so much of the award as directs the termina-tion of Ramasamy’s employment with compensation is in excess of thearbitrator’s jurisdiction. But as this part of the award is affected bythe arbitrator having misdirected himself in the manner indicated earlier,*I am of the view that an order quashing it should issue in this case.
•' The further question then arises as to what other order should be madeby; me in regard to the action which may bo taken by the arbitratorconsequent on his finding that the transfer of Ramasamy from the powerhouse to the field was unreasonable and ■without sufficient cause.. Mr.Nadesan submitted that any order proceeding from this Court quashingthe part of the award referred to should be accompanied by an orderof mandamus directing the arbitrator to decide what relief Rama samyshould get. Mr. Perera was, however, strongly opposed to any orderbeing made which would leave it open to the arbitrator to consider thegiving( of relief in the form of a direction that Ramasamy should bere-transferred to the power house. Mr. Perera submitted that thearbitrator has already considered this form of relief and decided againstit. | I do not think, however, that it is correct to say that the arbitratorconsidered this question and came to a decision regarding it. What
WEEE.ASOOE.IYA, S.P.J.—New Dinibula Oo. Ltd. v. Brohicr
he considered was whether he should order the “reinstatement” of• Ramasamy, and he held that to do so would not be in the interests ofRamasamy or the new Superintendent. As pointed out, the question of“reinstatement” does not arise in the present case, but even if, in refu-sing to order “ reinstatement”, the arbitrator is to be regarded as having,in effect, decided not to order a re-transfer of Ramasamy to the powerhouse, such decision should not, for the reasons already given, be allowedto stand.
So much of the award of the arbitrator as relates to the relief to begiven to Ramasamy is quashed, and the record of the proceedings beforehim will be returned with a directive that he should, after hearing furtherrepresentations, if any, that the parties may wish to place before him,consider afresh what relief Ramasamy is entitled to consequent on thefinding that his transfer from the power house to the field was unreason-able and v. ithout sufficient cause.
I make no order as to the costs of these applications.
Award of arbitrator 'partly quashed.
NEW DIMBULA CO., LTD., and another, and R. L. BROHIER and others, Respondents