T. S. FERNANDO, J.—Qeyton Transport Board v. de Silva
Present: T. S. Fernando, J,
THE CEYLON TRANSPORT BOARD, Petitioner, and W. P. N.DE SILVA (President, Labour Tribunal) and 2 others,Respondents
S. C. 436 of 1961—Application for the grant and issue of Mandates inthe nature of Writs of Certiorari and Mandamus
Labour tribunals—Application for relief by dismissed workman—Domestic inquiryalready conducted in good faith by employer—Application by workman tolead fresh evidence•—Should the labour tribunal allow such application ?—Industrial Disputes Act, No. 43 of 1950, as amended by Act No. 62 of 1057,ss. 24 (I), 31B (1), 31C (1).
In an application made by a woricman claiming relief under 6eetion 31B of theIndustrial Disputes Act, No. 43 of 1950, as amended by Act No. 62 of 1957,the labour tribunal is obliged, under section 31C (1), to hear only suchevidence, notwithstanding its tender, as is logically relevant to such inquiriesas the tribunal in its discretion considers necessary to make. Accordingly, thetribunal is not obliged to allow an application of the workman to lead freshevidence if it is content to follow the practice observed in Ceylon that in thecase of dismissals of employees for misconduct after the employer has conducteda domestic inquiry in good faith a Labour Tribunal will not act as a board ofappeal and substitute its own judgment for that of the management.
Application for writs of Certiorari and Mandamus in respect of anorder made by a Labour Tribunal.
H. W. Jayevjcirdene. Q.C., with W. T. P. Goonetilleke, for the petitioner.S. Kanakaratnam, for the 3rd respondent.
Cur. adv. wit.
Pebruary 20, 1962. T. S. Febnando, J.—
The 3rd respondent to this application, who was a bus conductoremployed under the petitioner and who has been dismissed on the groundof misconduct, made through his Union, the 2nd respondent, an applica-tion to the Labour Tribunal in terms of section 3133 (1) of the IndustrialDisputes Act, No. 43 of 1950 as amended by Act No. 62 of 1957. Whenthe application came on for hearing, counsel for the 3rd respondentproposed to lead fresh evidence before the Tribunal, a procedure whichwas objected to on behalf of the petitioner. After hearing argumenton the matter, the learned President of the Labour Tribunal made onAugust 3, 1961 what is described as an interim order allowing the Union’sapplication to lead evidence. The petitioner seeks to question thelegality of this interim order by invoking the power of this Court to quash
T. S.. FERNANDO, J,-rrCeylon Transport Board v. de Silva
proceedings by way of a mandate in the nature of a writ of certiorariand, further, seeks to obtain from this Court by way of mandamus adirection to the Tribunal to proceed with the hearing of the applicationon the evidence and material already recorded at the inquiry held by theappellate authority constituted according to the disciplinary rules of theCeylon Transport Board, the petitioner.
—The real question that comes up to be considered on the applicationmade to this Court is the interpretation of section 31C (1) of the IndustrialDisputes Act. That sub-section provides that “ where an applicationunder section 31B is made to a Labour Tribunal, it shall be the duty ofthe Tribunal to make all such inquiries into that application as theTribunal may consider necessary, hear such evidence as may be tenderedby the applicant and any person affected by the application, and there-after make such order as may appear to the Tribunal to be just andequitable.” I do not think that the slight difference in phraseologythat is to be discovered by a comparison between sections 24 (1) and31C (1) of the Industrial Disputes Act makes any material distinctionbetween the powers and duties of an Industrial Court and those of aLabour Tribunal. Even Mr. Kanakaratnam felt compelled to concedethat the Tribunal was obliged to hear only such evidence, notwith-standing its tender, as was logically relevant to such inquiries as theTribunal in its discretion considered necessary to make. He did, however,contend tbat in the present case the Tribunal had by its interim orderdecided that the evidence which the Union sought to offer was logicallyrelevant to the question of the order the Tribunal was ultimately requiredby section 31C (1) to make. The difficulty I experience in agreeing withMr. Kanakaratnam’s contention on this last point is due to the existencein the interim order of a reference to a practice of the Industrial Court inCeylon that in the case of dismissals of employees for misconduct afterthe employer has conducted a domestic inquiry in good faith a LabourTribunal will not act as a board of appeal and substitute its own judg-ment for that of the management. The observations of the learnedPresident appear to me to indicate that while he bimself might havebeen content to follow this practice he felt compelled by the Wording ofsection 31C (1) to allow the parties to offer such evidence as they considerednecessary. As I have indicated already, the Tribunal is obliged toreceive only such evidence as it considers to be relevant to the issues orinquiries which, in its discretion, the Tribunal considers it necessary toadjudicate upon or make. It follows that the Tribunal must first decidewhat is the inquiry or what are the inquiries that are necessary to bemade ; thereafter, the question of the reception or rejection of evidencewould present no difficult problem. Viewed in that light, if the Tribunalhad in the present case decided that it would follow the practicewhich it says bas been observed in a series of awards of the IndustrialCourt in Ceylon, I find it difficult to see how the evidence proposed tobe tendered becomes relevant. On the other hand, if the Tribunalhad not so decided and had considered that it was necessary to inquireinto the question whether the dismissal was right or wrong on the merits,
T. S. FERNANDO* J,—Goylon Transport Board v. do Silva
then undoubtedly the evidence proposed to be tendered becomes relevant.I do not find it possible to gather from the interim order whether thelearned President has decided the material question one way or the other.
It has been submitted to me on behalf of the 3rd respondent that nocertiorari lies in this case as the Tribunal has acted within jurisdictionin deciding to admit evidence. Id any event, the Tribunal had jurisdic-tion to decide the question of the admission of evidence, and whetherit acted rightly or wrongly no certiorari can issue. I haw> been invitedto hold that there is error on the face of the interim order, but forreasons which will appeal' from the observations I have already madehere I am unable to agree that there is such error in the order soughtto be canvassed.
The proceedings must therefore be remitted to the Labour Tribunal.If the learned President has decided that it is necessary to inquire intothe question of the wrongfulneas of the dismissal on the merits, then ofcourse he will continue the bearing of tie application from the stage ithad reached with the making of his order of August 3, 1961. If, on theother hand, he decided to receive evidence sought to be led on behalfof the Union because he felt he was obliged so to receive it irrespectiveof whether he felt that in the end he would follow the practice observedin a series of awards of the Industrial Court in Ceylon. I am of opinionthat there is no legal obligation on him to receive the evidence tendered.I need say no more at this stage than that, notwithstanding the interimorder he has made, it is open to him to review that order in the lightof the interpretation of the relevant part of seotion 31C (1) of the Actwhich I have indicated above. I must add that I refrain from expressingany opinion on the correctness in law of the practice observed by theIndustrial Court in Ceylon and referred to by the learned President inhis interim order. That question can be left to be decided, if necessary,where it actually arises for decision.
There will be no costs of this application.
Proceedings remitted to the Labour Tribunal.
THE CEYLON TRANSPORT BOARD, Petitoner, and W. P. N. DE SILVA (President, Labour