BASNAYAKE, C.J.—Taos Ltd. v. Fernando
1983Present: Basnayake, C. J., Abeyesundere, X,
and G. P. A. Silva, J.
TAOS LTD., Petitioners, andP. O. FERNANDO and 3 others,
S. C. 127/62—Application for a Writ of Certiorari cm P. 0. Fernando
and 3 others
Industrial dispute—Non-employment of a workman—Validity of award orderingpayment of compensation to him, without a decision as to his reinstatement—Certiorari—Industrial Disputes Act, s. 33.
In an industrial dispute arising from the non-employment of a workmanby his employer, an order of the Industrial Court for payment of compensationto the workman would be ultra vires and be liable to be quashed by certiorariproceedings unless there is also a deoision as to his reinstatement. The decisionas to payment of compensation to the workman must be an alternative to adecision as to bis reinstatement.
Application for a writ of certiorari.
27. W. Jayewardene, Q.C., with L. Eadirgamar and L. C. Seneviratne,for Petitioners.
R.S. Wanasundere, Crown Counsel, for Attorney-General.
February 15, 1963. Basnayaee, C.J.—
This is an application by Taos Limited for a mandate in the nature ofa writ of certiorari and relates to an award made by the 1st respondent
P.0. Fernando, a member of the panel appointed by the Governor-Generalin terms of section 22 of the Industrial Disputes Act, to whom an industrialdispute between the petitioner and the United Engineering Workers’Union was referred by the Minister for Labour and Nationalised Servicesunder section 4 (2) of the Industrial Disputes Act in the following terms :—
“ I, Chandradasa Wijesinghe, Minister of Labour and NationalisedServices, do, by virtue of the powers vested in me by section 4 (2) ofthe Industrial Disputes Act, No. 43 of 1950, hereby refer the aforesaiddispute for settlement to an Industrial Court which shall be constitutedin accordance with the provisions of section 22 of that Act. Statementof matter in dispute : The matter in dispute between the UnitedEngineering Workers’ Union and Taos Limited, Kew Road, Colombo 2,is whether the non-employment of the following workers is justified andto what relief they are entitled. …”
In the award made in pursuance of that reference and published inGazette No. 12622 of 15th September 1861, the 1st respondent stated—
<! It is clear that the Company had very little work to give itsemployees ana the management appears to have taken this opportunity
■&ASNAYAKE, Q.J.—Taoe Ltd. V. Fernando
to get rid of its employees without paying them any eeliaf. Ordinarilythey would be entitled to reinstatement and I would have orderedreinstatement but for the fact that I was informed that the Companyhad practically lost all orders from the Fisheries Department and wouldhave to close down in the near future. The Company was started afew years ego and none of the employees have been there for a longperiod. Considering all the circumstances of the case I consider theemployees should be granted relief by the payment of two months’salary as compensation. Butin the case of those who had already beengiven notice of discontinuance at the end of December, 1960, X considerit would be sufficient if they were paid one month’s salary as theyhave already been given one month’s notice of discontinuance. ”
It is submitted by the petitioner—
“ (a) that in bis award the 1st respondent had not considered and/orhas failed and/or omitted to take into account a vital and relevantmatter, namely, whether the action of the aforesaid workers referredto in paragraph 4 (a) above in quitting work on the 27th December 1960and refusing to return to work for a number of days thereafter amountedin fact and/or in law to a ‘strike’ within the definition of that termunder the Trade Unions Ordinance,
that, therefore, the 1st respondent has committed an error oflaw on the face of the record,
that in his award, the 1st respondent has not considered and/orhas failed and/or has omitted to take into account a vital and relevantmatter, namely, whether the misconduct and misbehaviour of theworkers referred to in paragraph 4 (a) above from the 27th December1960 to the 30th December 1960 referred to in paragraph 5 (a) abovejustified the petitioner in law in not re-employing the said workers.
that the award and the determination of the 1st respondentacting in pursuance of the aforesaid reference is null and void and ofno effect in law. ”
Learned counsel submitted that the Industrial Court, particularly the1st respondent being a Judge exercising judicial power, had not beenproperly appointed, as the office held by him was a judicial office and thatunder the Constitution such appointment is vested in the Judicial ServiceCommission. It ia not necessary to decide this point in the instant caseas there is a vital defect in the award itself which strikes at the root ofthe matter.
Section 33 of the Industrial Disputes Act provides that an award maycontain decisions on the following matters—
" (a) as to wages and all other conditions of service including decisionsthat any such wages and conditions shall be payable or applicable witheffect from any specified date, which may, where necessary, be a date
Per era v. Zainudeen
prior to the date of the award, and decisions that wages shall be payablein respect of any period of absence by reason of any strike or lockout;
as to the reinstatement in service, or the discontinuance fromservice, of any workman whose dismissal or continuance in employment
-is-a matter in dispute, or who was dismissed or ceased to be in serviceat the commencement or in the course of any strike or lockout arisingout of the industrial dispute ;
as to the extent to which the period of absence from duty ofany workman, whom the arbitrator or industrial court has decidedshould be reinstated, shall be taken into account or disregarded forthe purposes of his rights to any pension, gratuity or retiring allowanceor to any benefit under any provident scheme ;
as to the payment by any employer of compensation to anyworkman as an alternative to his reinstatement, the amount of suchcompensation or the method of computing such amount, and thetime within which such compensation shall be paid. ”
In the instant case there was no decision as to reinstatement and theIndustrial Court had no power to make a decision for payment of compen-sation. The power to make an order for compensation is confined to acase in which there is a decision as to reinstatement. The decision asto payment of compensation to a worker must be an alternative to adecision as to his reinstatement. Without a decision as to reinstatementthere can be no decision as to compensation. The order of the IndustrialCourt is ultra vires and must be quashed. We accordingly do so.
The petitioner is awarded costs.
AjBEYEStmDEEE, J.—I agree.
G. P. A. Silva, J.—I agree.
TAOS LTD., Petitioners, and P. O. FERNANDO and 3 others, Respondents