E.S. Fernando v. United Workers Union
v.UNITED WORKERS UNION AND ANOTHER
SUPREME COURTRANASINGHE, C.J.,
P. S. DE SILVA, J., AND JAMEEL, J.
S.C. APPEAL NO. 38/86 – Ref. A 1757C.A. APPLICATION NO. 444/80
CA/LA (S.C.) NO. 10/86OCTOBER 31, 1989
Industrial Disputes Act, section 4(1) and 20 – Writ of certiorari – Termination fordisobedience of lawful order – Strike in support of such termination – Repudiation ofAward – Is repudiation an alternative remedy so as to disentitle a party to move fora writ of certiorari?
A workman G who was the branch Secretary of the United Workers Union wasdismissed for unauthorised absence and refusal to obey a lawful order given by themanager. Ten other workers struck work on the issue of the refusal to^keep G inemployment. The employer refused to take back G but offered to take back the1 tenothers but they refused. The arbitrator held that the refusal to take back G was justifiedbut the employees had a just cause for the strike as their branch Union Secretary wasrefused work. The Appeal Court .upheld the arbitrator's award.
The arbitrator's order to re-instate the ten workers is contradictory of aridinconsistent with his own finding that the dismissal of G was justified.
Re the availability of an alternative remedy by repudiation of the'award under'S.20 of the Industrial Disputes Act, it is wrong to regard Section 20(1) as analternative remedy in relation to proceedings for a writ of certiorari. Assuming that-repudiation of an awaro in terms of section 20 is a remedy yet it is an adequateand effectual remedy so as to disentitle an aggrieved party to the remedy by wayof certiorari.
Obeysekera v. Albert and Others (2) has been wrongly decided.
Cases referred to:
Manager Nakiadeniya Group v. The Lanka Estate Workers Union 77 CLW 52, 54
Obeysekera v. Albert and others 1978-79 2 Sri LR. 220
Thirunavukarasu v. Siriwardena and others S.C. 33/80 S.C. Minutes of 12.3.1981.
APPEAL from judgment of Court' of Appeal.
L. de Silva, P.C. with Gomin Dayasiri and Miss L. A. N. de Silva forpetitioner-appellant.
Respondents absent and unrepresented.
Cur. adv. vult.
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November 22, 1989.
P. S. OE SILVA, J.
The petitioner-appellant, who was the employer, filed an applicationfor a writ. of certiorari to quash an award made by the 2ndrespondent-respondent in his capacity as an arbitrator in respect oftwo industrial disputes referred to him under section 4(1) of theIndustrial Disputes Act for settlement by arbitration. The applicationwas dismissed by the Court of Appeal, and hence this appeal.
The Minister referred two industrial disputes to the 2ndrespondent-respondent. The only parties to the industrial disputeswere the petitioner-appellant, the proprietor of Island Printers, and theUnited Workers Union, the 1st respondent-respondent. The firstdispute was referred on 3.7.78 and was assigned reference No. A1744. The second dispute was referred on 6.9.78 and was assignedreference No. A 1757. The first dispute was:- (a) whether thenon-employment of J. M. Gnanadasa, who was a member of theUnited Workers Union, by the management of Island Printers wasjustified and to what relief he was entitled; (b) whether certaindemands made by the United Workers Union on behalf of itsmembers in relation to annual increments, festival advances, distressloans, leave, and bonus are justified. The second dispute that wasreferred to the arbitrator was whether the non-employment of the tenworkmen whose names were set oUt in the reference was justifiedand to what relief each of them was entitled. When these twodisputes were taken up for inquiry, it was agreed between the partiesthat the non-employment of the workman named J.' M. Gnanadasa inreference No. A 1744 and the non-employment of the ten workmen inreference No. A 1757 be consolidated and proceeded with togetherunder reference No. A 1757.
The case for the United Workers Union was: (i) that Gnanadasahad been on leave for 4 working days between 31st May and 5thJune 1978 and that when he reported for work on 6th June 1978 hewas wrongfully refused work by the manager of Island Printers whowas an agent of the petitioner-appellant; (ii) that the other ten•workmen had lawfully been on strike from noon on 6th June 1978 ona lawful demand, viz. that Gnanadasa be taken back for work. On theother hand, the case for the petitioner-appellant was (a) thatGnanadasa's absence from work was unauthorised; (b) that the
E.S. Fernando v. United'Workers Union (G.P'.S. de Silva, J.)
manager had requested Gnanadasa to meet the petitioner-appellantbefore he could be given work and that Gnanadasa refused to meetthe petitioner-appellant; (c) accordingly he was guilty of failing toobey a lawful order given by the manager. It was also the case of thepetitioner-appellant that the demand upon1- which the other tenworkmen struck work, namely, that Gnanadasa be taken back forwork, was unjustified.
After inquiry, the 2nd respondent-respondent made his awarddated 18.02.80. He held : (1) that the non-employment of J. M.Gnanadasa was justified and that he is not entitled to any relief; (2)that the non-employment of the other ten workmen was not justified
and ordered that they be re-instated with 3 months' back wages.
The finding at (1) above has not been challenged by the UnitedWorkers Union. Mr. H.L.de Silva, for petitioner-appellant, contendedbefore us that the finding at (2) above must be quashed on theground that the award made by the arbitrator reveals an error of lawon its face. It seems to me that on a reading of the award as awhole, .Counsel's contention is well-founded. The error of lawdemonstrable on the face of the award is that the arbitrator orderedthe re-instatement with 3 mqnth's back wages of the ten workmenconcerned, notwithstanding the following: clear findings in favour ofthe petitioner-appellant:- (i) that the non-employment of the workman,J.M. Gnanadlsa, which was the reason for the strike by the other 10workmen, was justified and that Gnanadasa as the branch Secretaryof the United Workers Union had misled the workmen to go on strike;(ii) that the parent Union was to blame "for the irresponsible andcallous manner they have handled this case”; (iii) the workers wfereto blame "for allowing themselves to be nose’led by Gnanadasa andfor not allowing the officials of the branch Union to take correctaction, and for following the wrong advice and being hasty in theirdecision”, (iv) "The conference of 3.7.78 was important. In spite ofall that went before, the proprietor was prepared to take in all theworkers except Gnanadasa. This, I consider, was a very generousgesture. But the workers refused to return for work if Gnanadasa wasnot also called. If the proprietor refused to give them work on a laterdate, it is the parent Union they have to blame for not giving them thecorrect advice, and themselves for not accepting work when it wasoffered to them”.
Despite these cogent and express findings in favour of the
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employer, the arbitrator concluded that the employees had a justcause for the strike as their branch Union Secretary was refusedwork. Their ignorance of the real cause should not be held againstthem. I therefore declare that the strike was justified”.
Section 17(1) of the Industrial Disputes Act requires the arbitratorto make “such inquiries into the dispute as he may considernecessary, hear such evidence as may be tendered by the parties tothe dispute, and thereafter make such award as may appear to himjust and equitable”.
The order to re-instate the 10 workmen is contradictory of, andinconsistent with, the arbitrator's own findings set out above. There ishere a clear mis-direction in regard to what is meant by a "just andequitable” award. As observed by de Kretser J. in the case ofManager, Nakiyadeniya Group v. The Lanka Estate Workers’ Union
“In the making of a just and equitable order one must considernot only the interest of the employees but also the interest of theemployers”. Needless to say, the making of a “just and equitable"award involves the exercise of a judicial discretion, a discretion thatmust be exercised reasonably and fairly, having regard to the findingsreached upon the material placed before the arbitrator. This thearbitrator has failed to do in the present case. I therefore find myselfunable to agree with the view of the Court of Appeal that there is noerror of law on the face of the award.
Apart from the absence of an error of law on the face of the award,the availability of an alternative remedy by way of “repudiation” ofthe award in terms of section 20 of the Industrial Dispute Act, wasthe other matter which the Court of Appeal took into consideration indismissing the application for the writ of certiorari. The Court ofAppeal relied on 'the decision in Obeysekera vs. Albert and others.
That was a case where the Court of Appeal held that section20(1) of the Industrial Disputes Act conferred the right on anaggrieved party to repudiate the award, and that, certiorari being adiscretionary remedy, the petitioner was not entitled to relief. Infairness to the Court of Appeal, it is proper to state that Obeysekeravs. Albert (supra) was directly in point on the question of theavailability of an alternative remedy in the present case.
Mr. H.L.de Silva, however, submitted that Obeysekera vs. Albert(supra) was wrongly decided inasmuch as the Court of Appeal tookthe view that section 20(1) of the Industrial Disputes Act was an“alternative remedy” in relation to proceedings for a writ of certiorari
E.S. Fernando v. United Workers Union (G.P.S. de Silva, J.)
to quash an award made by an arbitrator. Section 20, in so far as ismaterial for present purposes, reads thus:-
Sub-section (1) “Any party, trade union, employer or workman,bound by an award made by an arbitrator under this Act, mayrepudiate the award by a written notice in the prescribed formsent to the Commissioner and to every other party, trade union,employer and workman bound by the award:
Sub-section (2) “Where, a valid notice of repudiation of anaward is received by the Commissioner then subject ashereinafter provided-
the award to which such notice relates shall cease tohave effect upon the .expiration of 3 months immediatelysucceeding the month in which the notice is so received by theCommissioner or . upon the expiration of 12 months from thedate on which the award came into force as provided in section18(2), whichever is the later; and
the Commissioner shall cause such notice to be
publisned in the gazette, together with a declaration as to thetime aKwhich the award shall cease to have effect as providedin paragraph (a) ”.
In support of his submission that the repudiation of an award interms of section 20 of the Industrial Disputes Act is not an“alternative remedy”, Mr. H.L. de Silva relied strongly on thejudgment of Wanasundera J. in Thirunavukarasu vs. Siriwardena andothers, (3). In that case Wanasundera J. considered the effect of therepudiation of an award in terms of section 20 of the IndustrialDisputes Act. Said the .learned Judge: “The question that has beenposed is whether or not an award once it is repudiated has the effect,as it were, of wiping the slate clean so that the award and its effectswill disappear altogether as if they had never existed from theinception. I must confess that I find it difficult to accept this argument
both on principle and practice the award will be binding on the
parties and is made operative in its character of an award for a
minimum period of 12 months During that period and in respect
of that period when the award will subsist, all rights and liabilitiespertaining to the award in its character as an award can be enforcedas an award. The law no doubt allows a repudiation of the award at
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any time after the required minimum period. What then is the effectof such a repudiation? In my view, such a repudiation can have onlyprospective application and cannot affect any rights and obligationsthat have already accrued to the parties and have become terms andconditions of service
It seems to me that the view that the award is operative for aminimum period of 12 months is supported on a plain reading of thesection. On the other hand, if the petitioner succeeds in hisapplication for a writ of certiorari, the award is rendered null and voidab initio. It would therefore appear that, assuming that the repudiationof an award in terms of section 20 is a “remedy", yet it is not anadequate and an effectual remedy. To disentitle thepetitioner-appellant to the remedy by way of certiorari, the“alternative remedy" must be an adequate and an effectual remedy.In Obeysekera vs. Albert and others (supra) the Court of Appealdoes not seem to have sufficiently addressed its mind to the questionof the adequacy and efficacy of the “remedy" provided in section 20of the Industrial Disputes Act. In this view of the matter, as at presentadvised, I am of the view that the case of Obeysekera vs. Albert andothers (supra) has been wrongly decided.
For the above reasons, I set aside the judgment of the Court ofAppeal and quash that part of the award dated 18th February 1980relating to the reinstatement of the ten workmen whose names areset out in the award and the payment to each of them of 3 monthssalary as back wages as specified in the award. In all thecircumstances, I make no order for costs of appeal.
RANASINGHE, C.J. – I agree.JAMEEL, J. – I agree.
E. S. FERNANDO v. UNITED WORKERS UNION AND ANOTHER