001-SLLR-SLLR-2006-V-3-CEYLON-ELECTRICITY-BOARD-vs.-ALAVI-MOULANA-AND-OTHERS.pdf
CA
Ceylon Electricity Board vs. Alavi Moulana end Others
CEYLON ELECTRICITY BOARDVS.ALAVI MOULANA AND OTHERSCOURT OF APPEAL.
SRISKANDARAJAH, J.
CA 523/2003.
JUNE 28, 2004.
MAY 9,22,24,2006.
VM of Certiorari-Industrial Disputes Act-Section 4 (1), Section 20, Section 34(1)- Arbitration- Labour Tribunal order set aside by High Court-Employeereinstated-No back wages paid during period of interdiction-Dispute referredfor arbitration-Repudiation of award-Minor industrial dispute-Repudiation aneffective alternative remedy to the remedy by way of a Wirit of Certiorari?
The 4th respondent, an employee of the petitioner was interdicted fromservice on 6.1.1988 and his services were terminated on 2.10.1989. Theapplication filed in the Labour Tribunal by the 4th respondent employee wasdismissed. The High Court allowed the appeal of the respondent and madeorder that the employee would be entitled to arrears of salary and other benefitsdue to him under the law. In view of the judgment the 4th respondent wasreinstated with back wages from 2.10.1989. (date of termination) up to date ofreinstatement. The 4th respondent contended that, as he was exoneratedfrom all charges he should have been paid his salary from 6.1.1988. (date ofinterdiction) to 2.10.1989 (date of reinstatement).
The 4th respondent complained to the Commissioner of Labour and thematter was referred under section 4(1) by the Minister for arbitration.
The petitioner before the Arbitrator, stated that, as the said dispute hasalready been determined by an order of the High Court the arbitrator had nojurisdiction to hear the matter, this objection was overruled and after inquiry,the arbitrator held in favour of the 4th respondent.
The 4th respondent contended that, the petitioner had an alternative remedy-repudiation of the award – and therefore no Writ of Certiorari lies.
HELD:
Repudiation of an arbitration award cannot be considered as aneffectual alternative remedy to the remedy by way of a Writ of Certiorari.
2
Sri Lanka Law Reports
(2006) 2 Sri LR.
Held further:
The judgment totally exonerates the 4th respondent, this judgmentwas delivered on an appeal from the order of the Labour Tribunaldismissing the application of the 4th respondent. The High Court isonly empowered to decide the appeal. The High Court cannot give anequitable order.
The High Court order was restricted to reinstatement with back wagesand other benefits from the date of termination to the date ofreinstatement. The High Court cannot consider any other disputeother than termination, therefore the High Court has correctly decidednot to deal with the period of interdiction as the period of terminationdoes not cover period of interdiction.
As the petitioner has not paid for the period of interdiction even thoughthe 4th respondent has requested for the payment and as it was notpaid this dispute could be regarded as a minor industrial dispute -reference under section 4(1) is therefore valid.
Per Sriskandaraja. J:
“If the petitioner had any question in relation to the interpretation of theaward it could have referred such question to the arbitrator in terms of section34(1). Without invoking the statutory provisions to get clarification the petitionercannot complain that the award is illegal, meaningless or non specific’.
APPLICATION for a Writ of Certiorari/Prohibition.
Cases referred to:
E. S. Fernando vs. United Workers Union and Others -1989 2 Sri LR119 at 204 (SC)
Obeysekera vs. Albert and Others 1978-79 2 Sri LR 220.
Thirunavakarasu vs. Siriwardene and Others – 1981 -1 Sri LR 185(SC)
Dulinda Weerasuriya withAmila Vithana and Vajira Ranasinghe for petitioner.
R.P. Wimalasena for 2nd and 5th respondents.
S.T. Gunawardene for 4th respondent.
Cur. adv. vult,
CA
Ceylon Electricity Board vs. Alavi Moulana and Others
(Sriskandarajah, J.)
3
June 12th, 2006.
SRISKANDARAJAH, J.The Petitioner in this application has sought to quash the appointmentof the 3rd Respondent as the Arbitrator, made under section 4 (1) of theIndustrial Disputes Act by the 1st Respondent by his letter dated
(P1) and also to quash the award of the 3rd Respondent madeon 20.01.2003 marked P12.
The Petitioner submitted that the 4th respondent is an employee of thePetitioner. He joined the Petitioner Board as an apprentice in August 1968and thereafter being confirmed as an employee served in various postsand places. While he was serving as an Electrical Superintendent in theBoard, he travelled in a vehicle of the Board on 12.01.1987 which met withan accident in the Police area of Marawila. He was interdicted on 6.1.1988on the allegation that he had not taken proper steps in regard to the saidaccident and a charge sheet was served on him on 17.03.1988. After aninquiry the Petitioner’s services were terminated on 02.10.1989. The 4threspondent filed an application in the Labour Tribunal on 30.03.1990challenging the termination. This application was dismissed after inquiryby the order of the Labour Tribunal dated 10.06.1993 (P3). The 4thRespondent appealed against this order in the High Court of Colombo.The said appeal bearing No. HC/LTA773/93 was heard and the judgmentwas delivered by the learned High Court Judge on 19.10.1995 allowing thesaid appeal and holding that the appellant will be entitled to arrears ofsalaries and other benefits due to him under the law as from 02.10.1989(P5). In view of this judgment the 4th Respondent was reinstated by letterdated 31.1.1996 with immediate effect and back wages was paid from02.10.1989 up to the date of reinstatement.
The 4th Respondent contended that as.he had been completelyexonerated from blame over the incident of 12th January 1987 and as hehad been reinstated in service with all attendand benefits, he should havebeen paid his salary from 6.1.1988 to 2.10.1989 during his period ofinterdiction in relation to the above incident. The learned High Court Judge’sOrder was to reinstate him with full entitlement to all salaries and otherbenefits due to him under the law as from 2.10.1989. This date is the dateon which his service was terminated. The Petitioner in this case terminatedhis service after an internal inquiry not from the date of interdiction but
4
Sri Lanka Law Reports
(2006) 2 Sri L R.
from a subsequent date /. e from 2.10.1989 departing from the normalpractice. The Learned High Court Judge in his Order reinstated the 4thRespondent with immediate effect with wages from the date of terminationto the date of reinstatement. The 4th Respondent contended that as thesalary payable by the Petitioner during the period of interdiction was notconsidered by the learned High Court Judge and as he was exoneratedfrom all the charges and reinstated with all benefits he is entitled to thesalary for the period in which he was under interdiction. As the Petitionerfailed and neglected to pay the said salary, this matter was reported to theCommissioner of Labour and this dispute was referred for arbitration bythe Honourable Minister, under section 4 of the Industrial Dispute Act onthe 14th of August 2001. This decision was communicated to the Petitionerby letter dated 16th of August 2001 (P8). The said reference of the Ministerwas “whether the non-payment of arrears of salary for the period ofinterdiction from 1.6.1988 to 2.10.1989 of Mr. S. H. Hemapala who isemployed at the Ceylon Electricity Board is justified and to what relief heis entitled” (P8a). The Arbitrator’s award on the said reference was madeon 20.1.2003.
The Petitioner has not challenged the reference of the dispute forarbitration. The Petitioner’s position is that the said dispute has alreadybeen determined by the Order of the High Court and therefore the Petitionerobjected to the hearing of the dispute before the arbitrator. The arbitratoroverruled the objection and proceeded to hear the dispute, the Petitionerwithout challenging the decision overruling the objection and to hear thedispute participated in the proceedings and waited for a final decision.
When the final decision was not in favour of the Petitioner the Petitionerfiled this application seeking for the following relief; (a) appointment of the3rd Respondent as an arbitrator under Section 4(1) of the Industrial DisputesAct by the 1st Respondent by his letter dated 16.8.2001 (P1) is illegal,unlawful and therefore null and void. (b). Quash the award of the 3rdRespondent dated 20.1.2003.
As far as the first relief is concerned the said appointment was madeon 16.8.2001 by the 1 st Respondent but the Petitioner is challenging thesaid appointment in this application only on 27th of March 2003 after alapse of 19 months. The explanation given by the Petitioner in it’s writtensubmission is that the question of appointment of the arbitrator is a
CACeylon Electricity Board vs. Alavi Moulana and Others5
(Sriskandarajah, J.)
jurisdictional issue and it is an objection mixed with facts and law, meaningthat the objection is based on certain facts namely, that there was anindustrial dispute that was gone in to by the Labour Tribunal and the HighCourt, that the High Court made a particular order granting relief to the 4thRespondent. Therefore the Petitioner waited till the outcome of the awardto challenge the jurisdiction.
The Respondents contend that if the Petitioner is of the view that thearbitrator has made an error in facts in arriving at the jurisdictional questionand/or made an error in arriving at a final decision those errors are embodiedin the award of the arbitrator and the Petitioner is entitled to repudiate theaward of the arbitrator by a written notice in the prescibed form sent to theCommissioner in terms of section 20(1) of the Industrial Disputes Act. Butthe Petitioner has failed to seek an alternative remedy provided by law tohave the orders complained of invalidated. Therefore the Petitioner cannotseek a writ of certiorari to quash the said orders.
In E.S. Fernando vs. United Workers Union and Others(1>at204 G P.
S.De. Silva J with Ranasinghe C. J (as he then was) and Jameel J agreeingheld:
“Apart from the absence of an error of law on the face of the award, theavailability of an alternative remedy byway of “repudiation” of the award interms of section 20 of the Industrial Disputes Act, was the other matterwhich the Court of Appeal took into consideration in dismissing theapplication for the writ of certiorari. The Court of Appeal relied on the decisionin Obeysekera vs. Albert and Others.(2>
That was a case where the Court of Appeal held that section 20(1) ofthe Industrial Disputes Act conferred the right on an aggrieved party torepudiate the award, and that, certiorari being a discretionary remedy, thepetitioner was not entitled to relief. In fairness to the Court of Appeal, it isproper to state that Obeysekera vs. Albert {supra) was directly in point onthe question of the availability of an alternative remedy in the presentcase.
Mr. H. L. de Silva, however, submitted that Obeysekera vs. Albert {supra)was wrongly decided inasmuch as the Court of Appeal took the view thatsection 20(1) of the Industrial Disputes Act was an “alternative remedy" in
6
Sri Lanka Law Reports
(2006) 2 Sri LR
relation to proceedings for a writ of certiorari to quash an award made byan arbitrator. Section 20, in so far as is material for present purposes,reads thus:
Sub-section (1) “Any party, trade union, employer or workman, boundby an award made by an arbitrator under this Act, may repudiate theaward by a written notice in the prescribed form sent to the Commissionerand to every other party, trade union, employer and workman bound bythe award:
Provided that’
Sub-section (2) “ Where a valid notice of repudiation of an award isreceived by the Commissioner then subject as hereinafter provided –
the award to which such notice relates shall cease to have effectupon the expiration of 3 months immediately succeeding the month inwhich the notice is so received by the Commissioner or upon theexpiration of 12 months from the date on which the award came intoforce as provided in section 18(2), whichever is the later; and
the Commissioner shall cause such notice to be published in thegazette, together with a declaration as to the time at which the awardshall cease to have effect as provided in paragraph(a)".
In support of his submission that the repudiation of an award in terms ofsection 20 of the Industrial Disputes Act is not an “alternative remedy”,Mr. H. L. de Silva relied strongly on the judgment of Wanasundera J. inThirunavukarasu vs. Siriwardena and others, . In that case Wanasundera
J.considered the effect of the repudiation of an award in terms of section20 of the Industrial Disputes Act. Said the learned Judge: “The questionthat has been posed is whether or not an award once it is repudiated hasthe effect, as it were, of wiping the slate clean so that the award and itseffects will disappear altogether as if they had never existed from theinception. I must confess that I find it difficult to accept this argument bothon principle and practice the award will be binding on the parties and ismade operative in its character of an award for a minimum period of 12months. During that period and in respect of that period when the awardwill subsist, all rights and liabilities pertaining to the award in its characteras an award can be enforced as an award. The law no doubt allows a
CA
Ceylon Electricity Boerd vs. Alavi Moulana and Others
(Sriskandarajah, J.)
7
repudiation of the award at any time after the required minimum period.What then is the effect of such a repudiation? In my view, such a repudiationcan have only prospective application and cannot affect any rights andobligations that have already accrued to the parties and have becometerms and conditions of service….".
It seems to me that the view that the award is operative for a minimumperiod of 12 months is supported on a plain reading of the section. On theother hand, if the petitioner succeeds in his application.for a writ of certiorari,the award is rendered null and void ab initio. It would therefore appear that,assuming that the repudiation of an award in terms of section 20 is a“remedy", yet it is not an adequate and an effectual remedy. To disentitlethe petitioner appellant to the remedy by way of certiorari, the “alternativeremedy” must be an adequate and an effectual remedy. In Obeysekeravs. Albert and Others (supra) the Court of Appeal does not seem to havesufficiently addressed its mind to the question of the adequacy and efficacyof the “remedy” provided in section 20 of the Industrial Disputes Act. In thisview of the matter, as at present advised, I am of the view that the case ofObeysekera vs. Albert and others (supra) has been wrongly decided.”
In view of the principles enumerated in the above judgment the repudiationof an arbitration award cannot be considered as an effective alternativeremedy to the remedy by way of a writ of certiorari.
will now consider the merits of this application. The Petitioner challengedthe reference to arbitration and the appointment of the arbitrator on thebasis that the reference of the dispute amounts to re-canvassing or re-adjudication of the matters already decided by the High Court Judge andtherefore the reference is illegal and hence the appointment of the arbitratorin unlawful.
The matter referred to arbitration by the 1st Respondent to the 3rdRespondent is “whether the non payment of arrears of salary for the periodof interdiction from 06.01.1988 to 02.10.1989 of Mr. S. H. Hemapala whois employed at the Ceylon Electricity Board is justified and to what reliefhe is entitled”.
An examination of the judgment of the learned High Court Judge revealsthat he has set aside the L. T. order on the ground that there was
8
Sri Lanka Law Reports
(2006) 2 Sri LR.
misdirection in the assessment offsets which amounts to an error of law.The learned Judge having examined the charges has decided that all thecharges before the Labour Tribunal have not been proved. Based on thisfinding the learned Judge set aside the order of the President of the LabourTribunal and ordered reinstatement of the appellant (4th Respondent) withimmediate effect deciding that the termination of the employment of theappellant (4th Respondent) is not justified. He further ordered that the 4thRespondent will be entitled to arrears of salary and other benefits due tohim under the law as from 02.10.1989 and awarded costs fixed atRs. 1,050/-. The Judgment of the learned High Court Judge totallyexonerates the 4th Respondent from any allegation and the order forreinstatement with immediate effect with all benefits shows that the judgedecided to give all benefits to the 4th Respondent without any reservation.But the judgment has referred to 02.10.1989 as the date from which he isentitled for the arrears of salary and other benefits. This Judgment wasdelivered on an appeal from the order of the Labour Tribunal dismissing theapplication of the 4th Respondent. Therefore the High Court is onlyempowered to decide the appeal. Like a Labour Tribunal the High CourtJudge cannot give a just an equitable order. The High Court order wasrestricted to reinstatement with back wages and other benefits from thedate of termination to the date of reinstatement. The High Court cannotconsider any other dispute other than the termination. Therefore the learnedHigh Court Judge has correctly decided not to deal with the period ofinterdiction as the period of termination does not cover the period ofinterdiction.
As the High Court judge has exonerated the 4th Respondent from allcharges and has granted all benefits the 4th respondent is entitled toclaim his wages for the period of interdiction from the Petitioner as theperiod of interdiction was not considered by the High Court Judge. As thePetitioner has not paid his wages for the period of interdiction even thoughthe 4th Respondent has requested for the payment and as it was not paidthis dispute could be considered as a minor industrial dispute. Thereforethe reference of this dispute by the Minister of Labour under section 4 (1)of the Industrial Disputes Act to the 3rd Respondent arbitrator appointedby him by his order dated 16.8.2001 is legal and hence the 3rd Respondenthas jurisdiction to hear this dispute.
c'
The Petitioner in this application has also sought to set aside the awardof the arbitrator dated 20.1.2003 on the basis that the award is unintelligible,
CA
Basnayake Vs. Secretary to the Treasury and Others
9
meaningless, non specific and therefore unenforceable and therefore it isan illegal order.
The dispute referred for arbitration is specific /. e the payment of arrearsof salary for the period of interdiction from 6.1.1998 to 2.10.1989. Thereforethere cannot be any ambiguity arising from the award. But on the otherhand if the Petitioner had any question in relation to the interpretation ofthe award it could have referred such question to the arbitrator in terms ofSection 34(1) of the Industrial Dispute Act but the Petitioner without invokingthe statutory provisions to get clarifications cannot complain that the awardis unintelligible, meaningless or non specific.
For the aforesaid reasons this court dismisses this application withoutcosts.
Application dismissed.