020-NLR-NLR-V-64-HAYLEYS-LTD.-Petitioner-and-S.-C.-S.-DE-SILVA-et-al.-Respondents.pdf
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Hayleys, Ltd. v. de Silva
1962Present: Weerasooriya, S.P.J.
HAYLEYS, LTD., Petitioner, and S. C. S. DE SILVA et al.,
Respondents
S. C. 560 of 1960—Application for a Writ of Certiorari
Industrial Court—Constitution—Procedure for filling of vacancies•—Subsequent proceed-ings—Procedure—Industrial dispute—Duty of Industrial Court to decidematerial questions involved in the dispute—“ Error of law ”—Certiorari—•Advisability of having issues framed—Industrial Disputes Act (Cap. 131), asamended by Act No. 62 of 1957, ss. 22 (1), 22 (3), 24 (1) (2), 31 (1) (2) (3) (4),39 (1) (/).
Where an Industrial Court consists of three persons and all of them becomeincapablo of functioning, either simultaneously or at different times, the onlyprocedure laid down for the filling of vacancies is that contained in section31 (2) of the Industrial Disputes Act (Cap. 131), as amended by Act No. 62 of1957. Where, in such a case, as a result of vacancies being filled under section31 (2), an entirely new Court is, in effect, constituted, such Court has a discre-tion, under soction 31 (4), whether to continue the inquiry from the stage at -which it was whon tho vacancies were filled or to commence it de novo.
* (1915) IS N. L. 12. 413.2 (1955) 57 N. L. 12. 337.
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An inquiry by an Industrial Court must be regarded as pending or “ continu-ing ” within the meaning of section 31 (4) even at the stage when the examina-tion of all the witnesses has bd&n concluded and the Counsel for the petitionerhas addressed the Court. In such a case, it is open to the Court, when vacanciesin it have been filled, to proceed with the inquiry without a re-hearing of theprevious evidence or address if the evidence has been duly recorded and a fullnote of the address appears as part of the proceedings.
A decision of on inferior tribunal, which is based on an error of law apparenton the face of the record of the tribunal’s proceedings, is one of the grounds forthe issue of a writ of certiorari quashing the decision.
Under section 24 (1) of the Industrial Disputes Act one of the duties cast onan Industrial Court is “ to take such decision or make such award as may appearto the Court just and equitable These provisions, by necessary implication,also require on Industrial Court to consider and decide every material questioninvolved in the dispute, application or other matter referred to by the Minister.A failure on the part of the Industrial Court to consider and decide a questionwhich the statute requires the Court to decide would bo an error of law.Moreover, the error would be one due to a disregard of statutory provisions.An award of the Court which is based-on such an error apparent on the face ofthe record is liable to be quashed by order of certiorari.
On the 5th October, 1959, the petitioner (Hayleys, Ltd.) terminated theservices of 23 daily-paid workers for misconduct in having participated in aconcerted slowing down of work during the period 18th September to the 5thOctober, 1959. The dispute was then reforrod to an Industrial Court and thereal question that arose for decision was whether the action of the workmenamounted to misconduct justifying their dismissal. The finding, however, ofthe Industrial Court in regard to this dispute was as follows :—
“ Wo hold that the action resorted to by the Union is not a * go-slow * and
therefore, the dismissals in question are unjustified. ”
Held, that the finding of the Industrial Court could not be regarded os amount-ing to a decision of the crucial question, viz., whether or not the action of theworkmen amounted to misconduct. The omission of the Court to consider anddecide the question of misconduct was an error of law proceeding from a dis-regard of section 24 (1) of the Industrial Disputes Act. Accordingly, inasmuchas the error of law was apparent on the face of the record and arose from amisconstruction or disregard of statutory provisions, certiorari would lie.
Obiter : Certiorari for error of law on the face of the record will lie even wherethe error consists of the misconstruction of a document forming part of therecord.
Observations on tho advisability for an Industrial Court to frame issues asa preliminary step to an inquiry.
Application for a writ of certiorari to quash the award of anIndustrial Court constituted under the Industrial Disputes Act (Cap. 131).
H. V. Perera, Q.C., with S. J. Kadirgamar, K. Viknarajah. and L.Kadirgamar, for the Petitioner.
N.Senanayake, with Desmond Fernando and Miss S. Wickremasinghe,for the 4th Respondent.
No appearance for the 1st, 2nd, 3rd. 5th, 6th, 7th Respondents.
Cur. adv. milt.
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March 30, 1962. ..Weerasooriya, S.P.J.—
This is an application for a writ of certiorari to quash the award of anIndustrial Court constituted under the Industrial Disputes Act, No. 43of 1950 (hereinafter referred to as “ the Act ”). The award relates to
•A
a dispute which arose between Hayleys, Ltd., the petitioner, and the 4threspondent, a Union of workmen, including twenty-three workmenemploycd by the petitioner and against whom certain disciplinary actionhad been taken ending in their dismissal.
The Industrial Court originally consisted of the 1st respondent and twoother members, one of whom resigned before any witnesses were examinedby the Court. As permitted by section 31 (1) of the Act, the inquiryproceeded thereafter with tho Court constituted of only the 1st respondentand the other member, who was also the President of the Court.. Afterthe evidence of all the witnesses called at the inquiry was concluded andcounsel for the petitioner had addressed the Court, the President resigned.The vacancy so created and also the earlier vacancy were thereupon filledby the appointment of tho 1st respondnet as President and the 2nd and3rd respondents as additional members selected from the Panel appointedby the Governor-General under section 22 (1) of the Act. The awardsought to be quashed is the award of the Court consisting of theserespondents.
The appointment of the 1st respondent as President and of the 2ndand 3rd respondents as members of the Court .was puiportedly madeunder section 31 (2) of the Act as amended by the Industrial Disputes(Amendment) Act, No. 62 oi 1957, which provides that where the Presi-dent is unable to function, the Minister shall select another person fromthe Panel and appoint him as President, and where a member other thanthe President is unable to function, the Minister may select anotherperson from the Panel and appoint him as a member of the Court.. I donot think that there is any substanoe in the objection taken by Mr. H. V.Perera for the petitioner to the appointment of the 1st respondent (whilehe was a member of the Court) as President on the ground that it wascontrary to the provisions of section 31 (2). As the 1st respondent wasyet a member of the Panel at the time of his appointment as President,it is clear that he was eligible for appointment as such under section 31 (2).
The only proceedings that took place before the Court after thesevacancies were filled consisted of the address of counsel for the 4threspondent, a submission by way of reply from junior counsel for thepetitioner and the making of the award by the Court. Thus, the 2ndand 3rd respondents did not see or hear any of the witnesses examinedat the inquiry, nor did they hear tho address of senior counsel tor thepetitioner. Under section 31 (4) of the Act, as amended by Act No. 62of 1957, an inquiry may bo continued “ from the stage at which it was ”when a vacancy in an Industrial. Court is filled. Mr. Perera contended,however, that the inquiry had already concluded before the vacancieswere filled, therefore section 31 (4) could not have been availed of by the
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Industrial Court for the subsequent proceedings and the Court actedwithout or in excess of jurisdiction in respect of such proceedings. Thiscontention I am unable to accept as, even though the examination ofthe witnesses had been concluded, the inquiry was, in my opinion, pendingwhen the vacancies were filled.
Yet another contention of Mr. Perera which I reject is that on theappointment of the 1st respondent as President, and the 2nd and 3rdrespondents as members of the Court, an entirely new Court was consti-tuted, thereby making it necessary for the inquiry to be held de novo.Under section 22 (3) of the Act, as amended by Act No. 62 of 1957, theMinister may select from the Panel either one person or three persons toconstitute an Industrial Court. Where the Court consists of one personand he is unable to function, section 31 (3), as amended by Act No. 62of 1957, provides that the Minister shall reconstitute the Court by theappointment of another person selected from the Panel; but even aftersuch reconstitution the inquiry may under section 31 (4) be continuedfrom the stage at which it was at the time of the reconstitution. Wherea Court consists of three persons and all of them become incapable offunctioning, either simultaneously or at different times, the only procedurelaid down for the filling of vacancies is that contained in section 31 (2)which does not, however, specifically refer to a reconstitution of theCourt. But where, in such a case, as a result of vacancies being filledunder section 31 (2), an entirely new Court is, in effect, constituted, itwould appear that under section 31 (4) such Court has a discretionwhether to continue the inquiry from the stage at which it was when thevacancies were filled or to commence it de novo.
The duties and powers of an Industrial Court to which a dispute isreferred are defined in section 24 (1) ol the Act. They are “ as soon asmay be, to make all such inquiries, and hear all such evidence, as it mayconsider necessary, and thereafter to take such decision or make suchaward as may appear to the Court just and equitable ”. Section 24 (2)provides that, subject to such regulations as may be made under section39 (1) (f) in respect of procedure, an Industrial Court conducting aninquiry may lay down the procedure to be observed by such Court in theconduct of the inquiry. I have not been referred by learned counsel toany regulations made under section 39 (1) (/) in respect of procedurewhich are applicable to the matters under consideration. In the absenceof such regulat:ons the Court was free in the present case to devise itsown procedure provided, of course, the procedure adopted did not amountto a disregard of the rules of natural justice. Mr. Perera submitted thatthere had been a violation of these rules in that the petitioner’s case wasnot given due consideration by the 2nd and 3rd respondents who hadnot seen or heard the witnesses or heard the address of senior counsel forthe petitioner. But the power given to the Court under ..ection 31 (4)to continue the inquiry from the stage at which it was when the vacancieswere filled necessarily would imply that it was open to the court to proceedwith the inquiry without a re-hearing of the evidence. There is no
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definite proof that in making the award the Court failed to take intoconsideration this evidence, which was duly recorded. As for the addressof senior counsel for the petitioner, a full note of it running into thirtypages appears as part of the proceedings. In my opinion this submissiontoo, fails.
One of the points in dispute referred to the decision of the IndustrialCourt was the disciplinary action taken against the twenty-three, work-men who were dismissed by the petitioner; and the substantialquestion which arises for decision in the present case is whether theaward of the Industrial Court, in so far as it relates to this particularpoint, should be quashed. This dispute is to some extent connectedwith an earlier dispute between the petitioner and the 4th respondentover the retrenchment of twenty-eight other workmen employed in thepetitioner’s fibre stores and in regard to which an agreement was enteredinto between the parties on the 25th August 1959. For reasons whichneed not be gone into here, the implementation of that agreement bythe petitioner was delayed and in consequence the daily-paid workersin the fibre stores staged what the petitioner alleged was a “go-slow ”.According to the 4th respondent “from 18.9.59 the entirety of thedaily-paid resorted to trade union action which the employer has con-veniently sought to describe as ‘ go-slow * ”. This state of affairscontinued till the 5th October, 1959.
At the petitioner’s fibre stores loose fibre is pressed into bales bymeans of electrically operated baling presses. The petitioner hadcontracts with overseas buyers for the delivery of fibre in bales. Timeis said to be of the essence of such contracts. Before the loose fibreis pressed into bales and made ready for movement out of the storesto the export wharfs, several operations have to be gone through, such asunloading, handling, movement up to the presses, pressing and baling,moving out of the presses, stocking, handling and movement into lorriesand out of the stores. These operations were performed by the daily-paid workers. The normal output of the presses during the day wasabout eighty bales in the case of some and sixty-five bales in the caseof others. The petitioner alleged that as a result of the concertedslowing down of work by the daily-paid workers during the period 18thSeptember to the 5th October, 1959, the output of the presses was pro-gressively reduced to eighteen bales and sixteen bales respectivelyper day.- According to the Secretary of the 4th respondent Union theaction resorted to by the workmen achieved their objective of reducingthe daily production to even less than three-fourths of the normal out-put during the same period. The workmen drew their full wages for thisperiod.
On the 23rd September, 1959, the petitioner took disciplinary actionagainst nine of the daily-paid workers who participated in the “ go-slow ” campaign on the 22nd and 23rd September and whom thepetitioner regarded as the principal offenders. Similar action was takenon the 2nd October, 1959, against fourteen others for participating
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in the “ go-slow ” campaign on the 25th September and thereafter.All twenty-three workmen were suspended from their work pendinga decision by the petitioner on the charges brought against them.
The reply received from each of the nine workers to the “ Showcause ” notices served on them reads as follows :
“ With reference to your charge sheet dated 23.9.59 served on me’I wish to state that in terms of the unanimous decision arrived at byour Branch Union as a step adopted by the main Union to go slowwith the work as from 22.9.59. I as a daily-paid Worker on my ownaccord, have also decided to go slow with the work in terms of theabove decision.
This action being a privilege granted to our Union it was accordinglyadopted by me and I therefore wish to inform that my interdictionfrom work is a violation of the rights of our Union and that suchaction on your part is unjust.
I therefore request that I may be re-employed with all the benefitsI am entitled to.”
This reply amounts to an admission by the nine workmen that theydid go slow with their work on the dates mentioned, but such actionwas described as a “ privilege ” granted to the Union which did notjustify disciplinary measures being taken against them. The positionof the other fourteen workmen would appear to have been the same asin the above reply.
On the 5th October, 1959, the petitioner terminated the services of thetwenty-three workmen for misconduct in having participated in the" go-slow ” as stated in the notices served on them. The disciplinaryaction so taken was one of the matters in dispute between the petitionerand the 4th respondent which the Minister of Labour by his Order datedthe 15th October, 1959, referred to the Industrial Court. The findingof the Industrial Court in regard to this dispute is as follows :
“ We hold that the action resorted to by the Union is not a ‘ go-slow 1 and therefore the dismissals in question are unjustified.”
The Court accordingly directed in its award that the dismissed workmenshould, if they so desired, be given suitable employment by the petitioneras from a specified date and also that each be paid compensation in a sumof Rs. 300 for being out of employment.
This finding was severely criticised by Mr. H. V. Perera on the groundthat the very terms of it pointed to the Industrial Court having failedto decide the real question that arose for decision, namely, whether theaction of the twenty-three workmen—by whatever name it wasdescribed—amounted to misconduct justifying their dismissal.
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Although in the statement .of the petitioner’s case dated the 4thDecember, 1959, the action of the twenty-three workmen was describedas a “ go-slow ” as understood in industrial law, it is clear that' thegravamen of the charge against them was one of misconduct. Ac-cording to the 4th respondent the so-called “ go-slow ” was a misnomer,and what actually happened was that there was a complete stoppageof work for short intervals in different sections of the petitioner’s fibrestores. This action the 4th respondent described as “ a . partialstrike ”, and claimed that it was legitimate trade union action.
The address of the senior counsel for the petitioner, as appearing inthe notes of the inquiry proceedings of the 5th July,- I960, contains thefollowing submission as to the main issue before the Industrial Courtregarding this particular dispute :
“ Our position is that there was throughout an organised reductionin production. We call the action of the Union ‘ go-slow ’; the Unioncalls it a partial or a token strike. But the position is this : thatin consequence of certain action taken by the Union we terminatedthe services of these twenty-three workers. Therefore the questionthat arises for your consideration is whether or not the Companywas justified in terminating the services of these twenty-three workers.The Court has to consider all the evidence and ask itself what reallyhappened. In other words, what was it that the workers did. . Mysubmission is—I put it as high as this and I press it—that whatevername you give, whatever title you give to this form of conduct,the conduct of the workers is misconduct and entitles the Companyto terminate their services … My argument is that whatever
be the name or title you give to the form of action taken by the union,it is misconduct .”
The reply of counsel for the 4th respondent to the above submissionwould be seen from the following passages in his address to the IndustrialCourt:
“ The employer states that whatever, took place between the 18thof September and the 5th of October amounted to misconduct. Mysubmission on that point would be that it is not misc induct becauseit was concerted action on the part of a trade union body,”
“My point is that we took action which amounted to a strike.
If it was a go-slow, and there was a fall in production, the managementmust clearly discharge the burden to show that it was misconduct
“My final submission to this Court is that there has been
no misconduct. A person cannot be punished for going on strikebecause that is a legal instrument of trade unionists, and if the Courtaccepts my submission they (the twenty-three workers) should bereinstated with back wages but if the Court holds that there has beensome element of misconduct then the punishment should not bedismissal but something of a lesser degree.”
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It would appear, therefore, that not only counsel for the petitionerbut also counsel for the 4th respondent addressed the Industrial Courtoh the footing that, apart from the question whether there was a “go-slow” or a strike, the question whether the action of the twenty-threeworkmen amounted to misconduct or not was a crucial issue. Muchof the evidence recorded at the inquiry was relevant only with referenceto such an issue. I do not think that the finding of the Court “ that theaction resorted to by the Union is not a ‘ go-slow * and, therefore thedismissals are unjustified ”, can be regarded as amounting to a decisionof that issue. There is nothing in the rest of the award to indicate thatthe issue was even considered by the Court. The finding actually consistsof two findings—(a) that the action rq^orted to by the Union is not a“ go-slow ”, and (6) that the dismissals are, therefore, unjustified. TheCourt obviously regarded finding (a) as conclusive of the question whetherthe dismissals were justified or not, and in doing so failed to decidewhether, “ go-slow ” apart, the dismissals could be justified on the groundof misconduct.- I may pause here for a moment to consider what theposition would have been had the Industrial Court found that the actionresorted to by the Union was a “ go-slow ”. The Court would probablyhave then felt constrained to hold, as a finding which necessarily followed,that the dismissals of the twenty-three workmen were justified. Onsuch findings the 4th respondent would have had the same cause forcomplaint that the petitioner now has.
Mr. Senanayake, who appeared for the 4th respondent at the hearingof this application before me, did not contend that the Industrial Courtdecided the issue as to misconduct. His submission was that such anissue did not arise for consideration by the Industrial Court, becausethe case for the petitioner, as raised before the Court, rested entirelyon the allegation that the action of the workmen amounted to “ go-slow ” .as known to industrial law which justified their dismissal. Forreasons which would be apparent from what I have stated earlier, I amunable to accept his submission.
Is the failure of the Industrial Court to decide the issue of misconducta ground for quashing by order of certiorari the award in so far as itrelates to the dispute as to the disciplinary action taken against thetwenty-three workmen ? In exercising jurisdiction in proceedings forthe issue of a writ of certiorari, the Supreme Court does not, of course,function as a Court of appeal. Such jurisdiction does not extend to thecorrection of a wrong decision of fact by an inferior tribunal. • But itis settled law now that a decision of an inferior tribunal, which is basedon an error of law apparent on the face of the record of the tribunal’sproceedings, is one of the grounds for the issue of a writ of certiorariquashing the decision.
Mr. Senanayake submitted that “ error of law ” as a ground for issueof the writ should be limited to an . error of law arising from a mis-construction or disregard of some statutory provision. In the case of
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Rex v. Northumberland Compensation Appeal Tribunal. Ex parte ShauA,which he relied on, an award of compensation made by a tribunal aspayable to an ex-employee of a local authority was quashed on theground of an error of law on the face of the award, in that the- tribunaltook into account only a portion of the ex-employee’s period of serviceand ignored the rest of it, which under the relevant regulations shouldalso have been taken into account. Undoubtedly in that case the error■ of law arose from a disregard of statutory provision. In Rex v. Board ofEducation2, the Court of Appeal in England affirmed an order of the King’sBench Divisional Court making absolute a rule for certiorari quashinga decision of the Board of Education on the ground that the Board hadnot decided the true question submitted to them. The matter camebefore the Board as a result of a dispute between a local educationauthority and the managers of a voluntary or “ non-provided ” schoolregarding the salaries payable to the teachers of the school, the duty ofmeeting the cost of which was, under the Education Act, 1902, thrown onthe local education authorities. Prior to that Act there were “ provided ”schools and voluntary or “ non-provided ” schools, the former supportedout of rates and government grants and the latter by voluntary sub-scriptions and government grants. Section 7 (1) of the Act imposedupon local education authorities the obligation of maintaining andkeeping efficient both types of schools within their respective areas.In the particular case a local education authority insisted on the teachersin the voluntary schools within the area of the authority being paidsmaller salaries than those paid to teachers in the “ provided ” schoolswhereas the managers of one of the voluntary schools maintained that theteachers in that school should be paid the same salaries as paid to teachersin the “ provided ” schools. This dispute was referred to the EducationBoard under section 7 (3) of the Act which read as follows :
“ If any question arises under this section between the local educationauthority and the managers of a school not provided by the authority,that question shall be determined by the Board of Education.” .
The questions submitted for the determination of the Board are statedin the speech of Lord Lorebum, Lord Chancellor, when the case camebefore the House of Lords, on an appeal taken by the Board from thedecision of the Court of Appeal-;—see Board of Education v. Ricez. TheHouse of Lords dismissed the appeal. The questions were :
•“ (I) whether the local education authority have in fixing andpaying the salaries of the teachers fulfilled their duty under sub-section 1 of section 7 of the Act.
(2) whether the salaries inserted in the teachers’ present agreementsare reasonable in amount and ought to be paid by the authority, orwhat salaries the authority ought to pay. ”
.1 {1952) 1 K.B. 338.3 {1910) 2 K.B. 165.
3 {1911) A.G. 179.
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The Board of Education took the view that the true question at issuebetween the local authority and the managers was one of fact, namely,whether teachers could be procured for the voluntary schools at thelower scale of salaries sanctioned by the local education authority.The Board stated that they did not find upon the evidence that themoney provided by the local education authority for the salaries ofthe teachers of the voluntary school concerned had been shown to beinadequate for that purpose and they decided accordingly that theauthority had not failed to maintain and keep efficient the school.
In addition to the two questions for the determination of the Boardas set out earlier, certain issues arising therefrom were also submittedto the Board by the managers of the school. One of the issues raisedwhat was regarded as the crucial question whether in future the schoolconcerned should not be maintained by the local authority withoutany discrimination as to salaries between it and schools provided by theauthority. It would appear that Cozens-Hardv, M.R., was referringto this question in his judgment in the Court of Appeal in R. v. Board ofEducation (supra) when he stated as follows :y
“ There is nothing in the Board’s decision to indicate that the rightto discriminate, about which the whole battle raged, had ever beenchallenged. Still less is there anything to indicate the view of the Boardas to the existence of such a right ”,
He held that the decision of the Board “did not answer the questionput ” and that it must, therefore, be quashed.
In the present case, one of the matters in dispute referred to the deci-sion of the Industrial Court was, as already stated, the disciplinaryaction taken against the twenty-three workmen. This particular dis-pute involved the decision of a number of questions. I would concedethat one of the questions involved was whether the action of the workersconcerned amounted to a “ go-slow ” as known to industrial law. Thatquestion has been answered in the negative by the Industrial Court; andalthough the workers themselves admitted that they did go slow withtheir work during the material period, no submission was made to me byMr. Perera that the decision of that question by the Industrial Courtis wrong or that it is liable to be quashed by order of certiorari. Butthe question whether there was misconduct on the part of the workersjustifying their dismissal or lesser punishment, which was the subjectof a large volume of evidence adduced before the Industrial Courtand to which much importance was attached in the addresses of counsel,the Court omitted even to consider. I have already had occasion torefer to section 24 (1) of the Act under which one of the duties caston an Industrial Court is “ to take such decision or make such award asmay appear to the Court just and equitable ”. I think that theseprovisions, by necessary implication, also require an Industrial Courtto consider and decide every material question involved in the dispute,application or other matter referred to it by the Minister. A failure
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on the part of the Industrial Court to consider and decide a questionwhich the statute requires the Court to decide would, in my opinion,be an error of law. Moreover the error would be one due to a disregardof statutory provisions. An award of the Court which is based on such, an error, if apparent on the face of the record, is liable to be quashedby order of certiorari.
That the omission of the Industrial Court to consider the questionof misconduct is apparent on the face of the record cannot be denied.No submission to the contrary was addressed to me by Mr. Senanayake.It was not suggested however by Mr. Perera that the omission wasdeliberate or perverse. It was very likely the result of inadvertence.The appointment of two new members of the Court after all the evidencehad been recorded and senior counsel for the petitioner had addressedthe Court may have had something to do with it. Perhaps the situationthat has arisen would have been avoided if the Industrial Court had atthe outset called upon counsel to formulate the issues in regard to thematters in dispute. No doubt, under section 24 (2) of the Act, an Indus-trial Court is, in the absence of regulations made under section 39 (1) (/)in respect of procedure, master of the procedure to be followed in theconduct of an inquiry before it, and there is no legal requirement toframe issues. Even so, I would commend for the consideration ofIndustrial Courts the advisability of having issues framed as a preliminarystep in an inquiry. Industrial disputes, more often than not, involvecomplex questions of law and fact which are by no means readily dis-cernible in the somewhat bare statement of the matter or matters indispute which accompanies the Minister’s Order referring a dispute tothe decision of an Industrial Court. The framing of issues need not,however, be subject to any hard and fast rules as obtain in proceedingsbefore a Court of law.
In my opinion the omission of the Industrial Court to consider anddecide the question of misconduct is an error of law proceeding from adisregard of section 24.(1) of the Act. It is not necessary, therefore,for me to examine the correctness of Mr. Senanayake’s submission thatcertiorari will issue to quash the decision of an inferior tribunal on theground of an error of law apparent on the face of the record only where theerror arises from a misconstruction or disregard of statutory provisions.But I would, in this connection, refer to the recent case of Baldwin dsFrancis, Ltd. v. Patents Tribunal and Others1 where the House of Lordsseems to have accepted the principle that certiorari for error of law onthe face of the record will lie even where the error consists of the mis-construction of a document forming part of the record.
Eor the reasons I have given, I quash the finding of the IndustrialCourt that the dismissals of the twenty-three workmen are unjustified,and so much of the award as directs the petitioner to give the dismissedworkmen suitable employment, if they so desire, as from the date specified
1 (1959) 2 AJ3.R. 433.
HERAT, J-—GunarcUne v. Per era
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and to pay each of them a sum of Rs. 300 as compensation. As thepresent application is only for a writ of certiorari, and no applicationhas been made for a writ of mandamus to the Industrial Court to determineafresh according to law the dispute relating to the disciplinary actiontaken against these workmen, I leave it to the respective parties toconsider what further legal action, if any, should be taken in conse-quence of this order.
The 4th respondent will pay the petitioner’s costs of this applicationwhich I fix at Rs. 525.
Application allowed.