049-SLLR-SLLR-2002-3-VOLANKA-LIMITED-v.-ALL-CEYLON-COMMERCIAL-AND-INDUSTRIAL-WORKERS-UNION-.pdf
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Volanka Limited v. All Ceylon Commercial and
Industrial Workers' Union and Others
359
VOLANKA LIMITED
v.ALL CEYLON COMMERCIAL AND INDUSTRIALWORKERS' UNION AND OTHERS
SUPREME COURTFERNANDO, J.,
PERERA, J. ANDWIJETUNGA, J.
SC (SPL) APPEAL NO. 62/93CA NO. 393/88ARBITRATION NO. A 1824JULY 25, 1994
Industrial Dispute – Arbitration under section 4 (1) of the Industrial Disputes Act
Holding a meeting on the employer's premises contrary to a collective agreement
Decision of the secretary of the workers' union to hold the meeting – Dismissalof the secretary – Whether conduct qua secretary is a mitigating factor – Errorof law on the face of the record.
The services of the 2nd respondent, the secretary of the 1 st respondent unionwere terminated by the employer for holding a meeting of workers on the employer'spremises without the employer's permission contrary to a collective agreement.The said termination of services was included in the terms of reference in anarbitration under section 4 (1) of the Industrial Disputes Act. The Arbitrator (3rdrespondent) held that the 2nd respondent acted qua secretary of the union, andthat the 2nd respondent's conduct was mainly in a representative capacity whichwas a mitigatory factor. Hence, the termination of his services was unjustifiable.
Held:
The 2nd respondent himself was a workman on whom the collectiveagreement imposed an obligation not to participate in unauthorized meetingsand that his representative capacity was not a mitigatory factor. (II)
(II)No distinction can be made between an error of law on the face of therecord by inadvertence and an error made in consequence of reasoning.
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[2002] 3 Sri L.R.
The order of the Arbitrator constituted an error of law on the face of therecord which the Court of Appeal had the jurisdiction to correct by thewrit of certiorari.
Case referred to :
1. Ramaswamy Padayachi v. Shanmugha Padayachi – (1959) 2 Madras LJ 201.
APPEAL from the judgment .of the Court of Appeal.
H. L. de Silva, PC with F. Musthapha, PC for appellant.
B. Weerakoon with Chamantha Weerakoon and Ramani Muththetuwegama forrespondent.
July 25, 1994FERNANDO, J.
A Collective Agreement dated 31. 07. 1971 was entered into betweenthe Employers' Federation of Ceylon and three trade union federations:the Ceylon Federation of Labour, the Ceylon Federation of TradeUnions and the Sri Lanka Independent Trade Union Federation. Theappellant company was a member of Employers' Federation of Ceylon,while the 1st respondent union was a member of one of the tradeunion federations. Under that Collective Ageement, trade unions weregiven certain rights in respect of union meetings. If a union desiredto hold a meeting on the employer's premises, it was required to makean application for permission to the employer, and if the employerdecided to grant permission, he was entitled to impose certainconditions.
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Certain disputes between the appellant and the 1st respondentunion were referred for settlement by arbitration, under section 4 (1)of the Industrial Disputes Act, to the 3rd respondent. The dispute whichis relevant to the present appeal was whether termination of theservices of the 2nd respondent (who was the secretary of the 1strespondent's branch union at the employer's factory) was justified,and to what relief he was entitled.
The 3rd respondent held that the termination was not justified and 20ordered the reinstatement of the 2nd respondent but without backwages. The appellant unsuccessfully applied for a writ of certiorarito the Court of Appeal, and thereafter appealed to this court withspecial leave. According to the 3rd respondent's order the workmenin the appellant's factory had resumed work on 04. 06. 1979, aftera strike which had lasted about 2 1/2 months. The Assistant FactoryManager of the appellant testified that on 05. 06. 1979 the 2ndrespondent had requested permission to hold a meeting from 8.45am to 9.00 am which was the tea break; he refused permission,whereupon the 2nd respondent said he would hold the meeting, with 30or without permission. The 3rd respondent concluded that unauthorisedmeetings were held on 05. 06. 1979, 19. 06. 1979 and 23. 06. 1979.
In his order, he stated that he found "the evidence of the witnessesfor the employer more acceptable than the evidence given by the (2ndrespondent)"; that the evidence of the Assistant Factory Manager inparticular "was quite convincing"; that "his demeanour and the forthrightmanner in which he gave his evidence. . . (made him) accept hisevidence"; that the 2nd respondent's "demeanour and the vacillatingand evasive manner in which he gave his evidence was in directcontrast to the forthright evidence given by the witnesses for the 40employer". The 3rd respondent therefore accepted the evidence ofthe appellant's witness that these three meetings were held by the2nd respondent workman, without permission.
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Having come to this finding, the 3rd respondent correctly observedthat the main question which remained to be decided was whetherthe termination of the 2nd respondent was justified. In coming to theconclusion that termination was not justified, a matter to which the3rd respondent gave great importance was that the 2nd respondent's"misconduct (was) in relation to union activities", that his conduct was
"mainly in his representative capacity as secretary of the union". Inassessing the seriousness of that misconduct, the 3rd respondentobserved that the 2nd respondent "has failed in his duty as secretary,and it is the union that must take the rap more than the workmanin his personal capacity as a workman. The 3rd respondent foundhimself unable to hold that these unauthorised meetings justified sucha serious punishment as dismissal" when considering the importanceand sacred position held by trade unions in guaranteeing socialjustice".
Mr. H. L. de Silva, PC submitted that the order was vitiated byan error of law in that the 3rd respondent has treated the 2nd respondent'srepresentative capacity as an exculpatory factor, which clearly it wasnot. Assuming, however, as Mr. Weerakoon contended, that it wasa mitigatory factor, Mr. de Silva submitted that it could be so regardedonly if the 2nd respondent's conduct in holding these meetings wascompletely bona fide. He urged, however, that the 3rd respondent hadfailed to take into consideration the attitude of defiance which the 2ndrespondent had displayed when refused permission by the AssistantFactory Manager. This was a circumstance which the 3rd respondentdid not even mention in coming to the conclusion that dismissal wasnot justified. Even if that is ignored, it seems to me that the 3rdrespondent has given undue weight to this as a mitigatory factor, inobserving that in some way the union must take the rap "more" thanthe 2nd respondent as a workman. The 2nd respondent was first andforemost an employee, and the Collective Agreement imposed an
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Industrial Workers’ Union and Others (Fernando, J.)363
obligation on him not to participate in unauthorised meetings; if hedid so his liabitiy would not significantly diminish because he was atrade union officer. Mr. H. L. de Silva further submitted that the conductof the respondent could not be viewed in isolation; it had to beconsidered in the context of its effect on other employees, as forinstance that it had induced collective acts of indiscipline on the partof other employees, namely participation in unauthorised meetings inviolation of the Collective Agreement.
In these circumstances, I hold that the 3rd respondent's conclusionthat termination was not justified was vitiated by an error of lawapparent on the face of his award in that he regarded the 2ndrespondent's representative capacity as being an exculapatory factor,or attached undue importance to it as a mitigatory factor, while failingto take into account relevant material which established lack of goodfaith as well as aggravation of the misconduct.
While the Court of Appeal regarded the conduct of the 2nd respondentas being in defiance of the employer, its reluctance to interfere appearsto have been occasioned by the decision in Ramaswami Padayachiv. Shanmugha Padayachi on the basis of which it held that the powerto review mistakes or errors apparent on the face of the record isconfined to errors which had been committed by inadvertence, anddoes not include errors of law arrived at after a process of consciousreasoning. That decision had nothing to do with the scope of the writof certiorari, but related to Order 47 Rule 1 of the Indian CivilProcedure Code which provides for the correction of inadvetant errors,of the kind which section 189 of our Civil Procedure Code deals with.However, the jurisdiction to correct errors of law on the face of therecord, by the writ of certiorari, has always been recognised asincluding errors of law made after a conscious process of reasoning.
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I hold that the award of the 3rd respondent is vitiated by errorsof law apparent on the face of the order, and should have beenquashed by the Court of Appeal by certiorari. The appeal is allowed,the judgment of the Court of Appeal is set aside, and the order dated02. 11. 1987 made by the 3rd respondent (published in the Gazetteof 01. 01. 1988) is quashed. There will be no costs.
PERERA, J. – I agree.WIJETUNGA, J. – I agree.
Appeal allowed.