HAYLEYS LTD., Petitoner, and R. W. CROSSETTE-THAMBIAH and others, Respondents

053-NLR-NLR-V-63-HAYLEYS-LTD.-Petitoner-and-R.-W.-CROSSETTE-THAMBIAH-and-others-Respondents.pdf


246
Hay leys Ltd. v. Groseette – Hhambiak
1961Present: Tambiah, J.
HAYLEYS LTD., Petitioner, and R. W. CROSSETTE-THAMBIAHand others, RespondentsS. C. 430—Application for the issue of a Mandate in the nature of a Writ ofCertiorari in terms of section 42 of the Courts Ordinance {Cap. 6)
Certiorari—Scope of writ—Error on face of record —‘ ‘ Speaking orders ”—Extraneousconsiderations taken into account by inferior tribunal—Availability of writ—“ Duty to act judicially'7—Courts Ordinance (Cap. 6), ss. 3, 42—Industrialdispute—Illegality of a “ stay -in-strike"—Industrial Disputes Act, No. 43 of1950, ss. 4, 22, 23, 24 (1)—Industrial. Disputes Regulations, 1958, Regtdations9, 20—Stay-in-Strikes Act, No. 12 of 1955, s. 2—Stay-in-Strikes (Repeal)Act, No. 23 of 1958—Penal Code, ss. 427, 433.
A writ of certiorari would be granted against an inferior Tribunal if suchTribunal has posed a particular irrelevant and extraneous question of law asthe main and only question and has completely misdirected itself on that pointand made that the basis of its decision, provided that the error appears on theface of the record.
An industrial dispute arose between the petitioner-Company and a tradeunion in consequence of the dismissal by the Company of 17 out of 198 labourerswho had staged a “ stay-in-strike The dispute was referred to an IndustrialCourt for a settlement in terms of the Industrial Disputes Act No. 43 of 1950.
■ The Industrial Court made award in favour of the trade union, stating, aschief reason, that a stay-in-strike was not illegal in Ceylon by virtue of theprovisions of the Stay-in-Strikes (Repeal) Act No. 23 of 1958. They heldthat the dismissal of the 17 labourers was not justified. The Company,thereupon, applied for certiorari to quash the Industrial Court’s decision.
Held, that certiorari should be granted for the following reasons :—
The Industrial Court had gravely misdirected itself on the law when itstated that “ the law of the land as it now stands has declared that a stay-in-strike is not illegal ”. Merely because a special provision dealing with stay-in-strikes has been repealed by the Stay-in-Strikes (Repeal) Act No. 23 of 1958,
. it does not follow that a stay-in-strike is not illegal in Ceylon.
Under section 42 of the Courts Ordinance certiorari would lie againstall tribunals which have a duty to act judicially.
. . (iii) An Industrial Court constituted under the Industrial Disputes ActNo. 43 of 1950 is a tribunal which is under a duty to act judicially.
Certiorari may be granted not only when an inferior tribunal has acted. without, or in excess of its jurisdiction, but also in the case of a “ speaking order ”,
when an error of law appears on the face of the record or when the tribunalbases its decision on extraneous considerations which it ought not to havetaken into account. One cannot, however, import into the tribunal’s order- reasons which are not set out by the tribunal. '?
The members of the Industrial Court misdirected themselves in thepresent case, not only on what they termed as the main question, but alsobecause they failed to act justly and equitably as required by section 24 ofthe Industrial Disputes Act. In that view, therefore, they exceeded theirjurisdiction.
TAMBIAH, J.—Hay leys Ltd, v. Cross ette – TKambiah
249
_A_ PPLICATI ON for a Writ of Certiorari to quash the proceedingsheld by an Industrial Court constituted under the Industrial DisputesAct, No. 43 of 1950.
U.V. Perera, Q.G., with S. J. Kadirgamar and K. Viknarajah, for thepetitioner.
NimaZ Senanayake, with D&smxmd Fernando, for the respondents.
Cur. adv. vuU.
May 5, 1961. Tambiah, J.—
This is an application for a Writ of Certiorari to inspect and examinethe record of the Industrial Court and to quash the proceedings held bythem and their award, dated 25.7.60 and published in the GovernmentGazette No. 1,218 of 12.8.60, and to make an order that the paymentordered in the said award to the workers referred to therein be not madeby the petitioner-Company.
The facts leading to this award may be summarised as follows : HayleysLtd. were running a fibre business in Deans Road and a rubber business inDarley Road. Each business had its own separate establishments andfactory committee. The two factory committees were under a parenttrade union called the Eksath Engineru Saha Samanya KamkaruSamithiya, the 4th Respondent in this application.
The Company introduced machinery in the twisting section of thefibre business and therefore decided to retrench as from September, 1959,35 labourers from the fibre stores. This was objected to by the workersin the fibre stores who wished that these workers should be re-employedin the fibre stores in some capacity or other. Matters were representedto the parent Union which referred this dispute to the Department ofLabour. There appears to have been a joint Conference between theUnion and the Company to consider this matter and, as a result of theirdeliberations, an agreement was signed on 1.9.59 to employ twenty-eightof them (the other seven did not seek re-employment) in the rubbersection. At the conference, which was held in the Labour Department,the Union was represented by Mr. T. S. Kulasekera, the President ofthe parent Union, and seven workers, all from the fibre section. Nomembers from the rubber factory committee were present at this Con-ference nor were any invitations extended to them to attend this meeting.
When the rubber factory committee came to know on 1.9.59 of thedecision to send to their stores twenty-eight workers from the fibrestores, they met and decided to protest. On 2.9.59, the Secretary ofthe rubber committee informed Mr. V. Weerasinghe, the Labour RelationsOfficer of the Company, that they were not a party to any agreementand that they objected to the twenty-eight workers coming and that
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TAMBTAH, J.—Hay ley a Ltd. v. CrosseUe. – Thambiah
they would strike if they were brought in. On 1.9.59, the Companydiscontinued some casual labourers engaged in the rubber stores tomake way for the labourers proposed to be brought from the fibre stores.There was resentment on the part of some of these labourers whodemonstrated in front of the rubber stores and some had to be bodilyremoved by the Police who were called in by the Company.
The Company went ahead with its plans to bring in the twenty-eightworkers from the fibre stores on 3.9.59. In order to prevent thisaction, all the labourers in the rubber stores, numbering one hundredand ninety-eight, staged what has been described as a “ stay-in-strike ”in the rubber stores. The labourers in the fibre stores also struck workfrom 2.9.59 to 5.9.59. In the meantime, Mr. Kulasekera, the Presidentof the parent Union, after negotiation, was able to persuade both sectionsto call off the strike. Resumption of work was decided on by the workersin both sections on 5.9.59 and the Company was duly informed of thisdecision. Accordingly, the workers discontinued the “ stay-in-strike ”on 5.9.59, went home and came back to work on Monday, the 7th ofSeptember. On the following day, the Company picked out 17 membersof the rubber factory committee and served “ show cause notices ” onthem and then suspended them. This provoked the Committee members,in view of the fact that, although one hundred and ninety-eight workershad struck work, these seventeen members were sought out becausethey were committee members. Another “ stay-in-strike ” was staged.
These events led to the development of an industrial dispute betweenthese workers and the petitioner-Com pany^ The Minister of Labour,acting in terms of section 4 of the Industrial Disputes Act, No. 43 of1950, by order in writing, referred the said dispute to an Industrial Courtconsisting of Respondents 1—3, for a settlement in terms of the said Act.The Minister’s Order, as required by section 23 of the said Act, wasaccompanied by statement dated 13.11.59, prepared by the DeputyCommissioner of Labour, the 6th Respondent, setting out the matterswhich, to his knowledge, were in dispute between the parties, and whichhe expressed as follows :
“ The matter in dispute between the Eksath Engineru Saha SamanvaKamkaru Samithiya and Messrs. Hayleys Ltd., is whether the non-employment of the following 17 workers is justified and to what reliefeach of them is entitled. ”
In terms of Regulation 9 of the Industrial Disputes Regulations, 1958,the reference to the said dispute was transmitted to the 7th Respondent,who was the Registrar of the Industrial Court. The Registrar calledupon the petitioner Company and the 4th Respondent, in terms of Regula-tion 20 of the said Regulations, for a statement of their respective casesand answers.
The 4th Respondent, in his statement, averred that the 17 workerswho were members of the factory committee of this Union along withthe rest of the members of the said branch of the Union, resorted to
TAMBIAH, J.—Hayleys Ltd, v. Crossette-ThambiaK
261
strike action on the 3rd, 4th and 5th of September, 1959, as a result ofwhich the petitioner Company served notice of suspension and dismissedfrom service the 17 workers who participated in the said strike and the4th Respondent, therefore, prayed that the 17 workers be re-instatedwith back wages and other privileges.
At the inquiry before the Industrial Court, it was contended on behalfof the petitioner that there was a finding of a domestic tribunal justifyingthe dismissal of the 17 workers and, therefore, the 4th Respondent cannotcomplain. The Commissioners, in the course of their order, acceptedthe principle that the findings of a domestic inquiry should not be disturbedunless :—
(а)there has been want of bona fides,
(б)it is a case of victimisation or unfair labour practice or violation
of principles of natural justice,
there is a basic error on the facts, or
there has been a perverse finding on the materials.
The Court held that there has been no want of bona fides, no basicerror on the facts, no perverse findings on the material before it and,further, that the inquiry before the domestic tribunal was conductedto the satisfaction of the Union. However, it stated that, while recognisingthe powers of the management to direct its own internal administrationand discipline, yet it was not an unlimited power and Industrial Tribunalsare free to inquire into the justification or otherwise of a dismissal.The Court stated that it desired to ascertain for itself whether it wasproper for the company to have singled out the rubber factory committeemembers for suspension and served “show cause” notices on 8.9.59,when all the workers had stayed in from the 3rd to the 6th of December.The Court heard evidence and delivered order that is sought to be quashedin these proceedings.
In the course of their order, the Court said as follows :—
“ The main question for determination is whether or not a * stay-in -strike ’ is legal in this country. Two pieces of legislation have dealtwith this question and we must confine ourselves within those bounds.The first is the Stay-in-Strikes Act, No. 12 of 1955, which came intooperation on April 12, 1955. Section 2 thereof reads thus—£ Whereany person taking part in a strike in any industry remains in furtheranceof that strike in the premises in which the industry is carried on, he
shall be guilty of an offence and shall, on conviction after summarytrial before a Magistrate, be liable to imprisonment of either descriptionfor a term not exceeding three months, or to a fine not exceedingone hundred rupees, or to both such imprisonment and such fine, and(5) may be arrested without warrant and be ejected from those premisesby any police officer not below the rank of Inspector of Police Inpromulgating this piece of labour legislation, the ‘ objects and reasons ’
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TAMBIAH, J.—Hayleye htd. v. Crossette-Thambiah
set out are to prohibit stay-in-strikes. As there have been a numberof stay-in-strikes and it was, therefore, necessary to prohibit suchstrikes. Side by side with this, should be read section 427 of thePenal Code which^ defines criminal trespass as follows : ‘ Whoeverenters into or upon property in the occupation of another with intentto commit an offence, or to intimidate, insult or annoy any personin occupation of such property or having lawfully entered into orupon such property unlawfully remains there with intent to commitan offence is said to commit * criminal trespass *.
The penal section is section 433 of the Penal Code where the punish-ment specified is identically the same as that stated by section 2 ofthe Act No. 12 of 1955. ”
“ We are unable to subscribe to the view that the Penal Code andthis Act conferred concurrent jurisdiction on our Courts. It is clearthat the element of * mens rea ’ is a necessary ingredient of an offenceunder section 427 of the Penal Code whereas under section 2 of theAct it is not so. When charged with the offence of criminal trespass,the burden of proving intent to insult, intimidate or annoy or tocommit an offence always rests on the prosecution, but in a chargeunder section 2 of the Act this burden shifts inasmuch as it is for theaccused to show that he remained on the premises for a lawful purpose.If a ‘ stay-in-strike ’ was intended to be synonymous with criminaltrespass, it is difficult to understand the necessity to have introduced .new legislation. Had this Act remained on the Statute Book inSeptember 1959, the Police could have arrested the offenders withouta warrant and ejected them from the premises. But, on May 9, 1958,came into force the Stay-in-Strikes (Repeal) Act, No. 23 of 1958,whereby the earlier Act was repealed in its entirety, and the onlymanner in which ‘ stay-in-strikers ’ could be dealt with thereafteris by charging them for criminal trespass under the Penal Code ; andthis was the action taken by the Company. We are not impressed
with the argument that all that the Act No. 2 of 1955 did was to givethe Police the power to eject ‘ stay-in-strikers * and the repeal ineffect was in that regard alone. Those committee members of therubber factory who had been convicted and fined Rs. 25 each in M. C.,Colombo No. 23183/a (production marked D. 3) were rightly chargedunder the Penal Code and convicted. There has been no appeal onthe law against it nor have papers in revision been filed in the SupremeCourt and the Union cannot be heard to complain about it at thisstage. But, this conviction cannot, by itself, affect the legality orotherwise of a ‘ stay-in-strike ’. Whatever may be this Court’s personalview on the desirability or otherwise of * stay-in-strikes ’, it is of theopinion that the law of the land as it now stands has declared that a
stay-in-strike ’ is not illegal …. ”
TAMBIAJET, J.—Hayleya Ltd. v. Oroaaette-Thambiah.
263
After referring to certain decisions of the Industrial Court in India,cited by the petitioner’s counsel, the Court stated as follows :—
“ The quotation seems to indicate that that country had for aconsiderable time been afflicted with * stay-in-strikes * of a violenttype. And the hope expressed by Teller, is in that context. Itdoes not seem to apply to this country which, as we have stated before,has, by statute, declared * stay-in-strikes ’ no longer illegal. ”
The 1st to the 3rd Respondents, who were the members of the IndustrialCourt, in the course of their Order, also stated as follows :—
** In spite of the dereliction of duty on the part of Mr. Knlasekera,President of tne parent Union, we are satisfied that the rubber factorycommittee was not included in the negotiations which led to theagreement signed on September 1, 1959, and particularly in view ofthe fact that they were not a party to this agreement, there seemsto be no valid reason for taking disciplinary action against thiscommittee for not implementing the agreement. ”
“ In view of the circumstances of this case, this Court holds thatthe non-employment of the seventeen listed workers was not justified.Had the rubber stores not been closed, we would have ordered re-instatement with back pay. In view of the fact that the rubberstores were closed down on December 19, 1959, we order that these17 workers be paid their basic salary and any other allowances to whichthey normally would have been entitled, from such date as they ceased* to be paid to December 18, 1959, and to retrenchment relief as inthe case of the other workers who were discontinued when the rubberstores closed down. ”
It was contended on behalf of the petitioner that the 1st to the 3rdRespondents had seriously misdirected themselves on what they describedas “ the main question for determination ” and, therefore, this Courtshould interfere by quashing the proceedings, since the IndustrialCourt has, by a misdirection of law, based its decision on an extraneousmatter.
The counsel for the 4th Respondent did not contest the position thatthe 1st to the 3rd Respondents had misdirected themselves on a questionof law when they stated that “ the law of the land as it now stands hasdeclared that a ‘ stay-in-strike ’ is not illegal ”. But he con-tended that this Court cannot issue a mandate in the matter of aWrit of Certiorari to quash the order of the Industrial Court for thefollowing reasons :—
The Supreme Court has no jurisdiction to issue a Writ of Certiorariagainst the Industrial Court as it is not an inferior Court.
(21 The Writ only lies where there is either lack of jurisdiction orexcess of jurisdiction and does not he where the tribunal actswithin the jurisdiction but commits an error of law.
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TAMBIAH, J.—Hay ley a Ltd., v. Crossette-Thambiah
A mere error of law does not justify the grant of a Writ of Certiorari
to quash the proceedings, unless it went to the root of thejurisdiction.
Even assuming that the Writ does lie, it cannot be availed of in
the circumstances of this case, since a wrong decision on thelaw was not the only ground on which the tribunal came to afinding. The tribunal has also come to a finding that therehas been victimisation in that the 17 members who werecommittee members have been issued notices to quit although118 people took part in the strike.
Before examining these submissions made by counsel for the appellantand respondents on the availability of the Writ of Certiorari, the questionas to whether the Tribunal had gravely misdirected itself on the lawwhen it stated that “ the law of the land as it now stands has declaredthat a ‘ stay-in-strike * is not illegal ”, has to be examined.
According to Ludwig Teller1, “ sitting down strikes ” occur whenever“ a group of employees or others interested in obtaining a certainobjective in a particular business forcibly take over possession of theproperty of such business, establish themselves within the plant, stopits production, and refuse access to the owners or to others desiring towork.” Teller adds that “ sit down strikes should more accuratelybe described as a strike in the traditional sense to which is added theelement of trespass that the strikers squat on the property of theemployer. ” The propriety of such a strike when one deals with labour 4disputes was considered by the Supreme Court of the United States in theFansteel Case (U. S. A. Supreme Court in 1939, pp. 305-307). In this case,the Supreme Court of the United States said “ The employees had theright to strike, but they had no licence to commit acts of violence or toseize their employer’s plant. The seizure and holding of the building wasitself wrong, apart from any act of sabotage. But in the legal aspectthe ousting of the owner from lawful possession is not essentiallydifferent from an assault upon the offices of an employing company orthe seizure and conversion of its goods, or the despoiling of its propertyor other unlawful acts in order to force compliance with demands. Tojustify such conduct because of the existence of a labour dispute or ofan unfair labour practice would be to put a premium on resort to forceinstead of legal remedies and to subvert the principles of law and orderwhich lie on the foundations of society ”.
Commenting on this decision, Teller states (vide “ Labour Disputesand Collective Bargaining ”, Vol. 1 at p. 313) as follows :—
“ It is to be hoped that the Fansteel decision has placed a quietusupon further indulgence by labour in the sit-down-strike. The casemarks what is hoped to be the end of an unfortunate chapter in thehistory of American labour activity
1 “ Labour Disputes and Collective Bargaining ”, Vol. 1 at p. 311.
TAMB1AH, J.—Hay ley 8 Ltd. v. Croeeette-Thambiah
265
In India, “ sit-down-strike ” was considered to be illegal (vide BallyMunicipality v. Sri Modan Mohan Barterjee (Labour Law Journal ofIndia 1954, Vol. 11, p. 500 at p. 505). In spite of the settled viewon this question in other countries, a practice appears to have developedin Ceylon to resort to this method of red*ess in settling labour disputes.If labourers stage a “ sit-down-strike ” in the premises of the employerand prevent the latter from operating his machinery, in most cases, theprovisions of the Penal Code relating to criminal trespass are quite sufficientto bring such strikers within the ambit of the Penal Code since, insuch cases, it will not only be trespass, but there will also be intentionto annoy or intimidate.
The object of the Stay-in-Strikes Act No. 12 of 1955 was to prohibit" stay-in-strikes ”. This Act provided an additional offence whichdiffered from criminal trespass in that there was no burden on theprosecution to prove intent to insult, intimidate or annoy or to commitan offence. It also gives the police power to seize such persons and toeject them. This Act was repealed by the Stay-in-Strikes (Repeal)Act No. 23 of 1958. The Legislature may have had various reasonsfor the repeal of the Stay-in-Strikes Act. It may be that it was theintention of the Legislature that the provisions of the Penal Code setout in section 433, which defines criminal trespass, were quite sufficientand adequate to deal with labourers who participate in a stay-in-strike.It may be that the Legislature thought that the drastic powers givento the police to eject such strikers may not be conducive to peace andorder. But nowhere has the Legislature stated that a stay-in-strike isnot illegal. Merely because a special provision dealing with stay-in-strikeshas been repealed, it does not follow that the Legislature has stated thata stay-in-strike is not illegal in this country. Therefore, the IndustrialCourt gravely misdirected itself on what they termed as the main questionfor determination in holding that it is of the opinion “ that the law asit now stands, has declared that a stay-in-strike is not illegal ”.
The counsel for the Respondents has rightly conceded that he cannotsupport the finding of the Industrial Court that the law of the land, asit now stands, has declared that a stay-in-strike is not illegal.
The grounds relied on by the counsel for the appellants and by thecounsel for the respondents may now be examined? The preliminaryquestion is whether this Court has the jurisdiction to issue writs, in thenature of Certiorari, to the Industrial Court. The High Courts of Englandhave an undoubted and undisputed jurisdiction to issue writs in thenature of Certiorari by virtue of its supervisory jurisdiction to controlthe proceedings of Tribunals which are under statutory obligations toact judicially. This jurisdiction was conferred on the Supreme Courtof Ceylon by the Charter of 1801 which constituted the Supreme Courtof Judicature in Ceylon as the Superior Court of record. The Charterof 1833, which repealed the earlier provisions on this matter, conferredthe same jurisdiction on the Supreme Court to issue writs in the nature ofCertiorari. The next landmark in the history of legal institutions in
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TAMBIAH, J.—Hay leys Ltd. v. Crossette-Thambiali
Ceylon -was the passing of the Courts Ordinance, No. 1 of 1899, whichabolished the Charter of 1833. Section 42 of this Ordinance conferredon the Supreme Court the power and authority to inspect and examinethe records of any Court and to grant and issue, according to law, mandatesin the nature of writs of Mandamus, Quo Warranto, Certiorari, Procedendoand Prohibition against any District Judge, Commissioner, Magistrate orother person or tribunal. The meaning of the words “ other person ortribunal ” was authoritatively construed by a Divisional Bench of fivejudges in the case of Abdul Thassim v. Edmund Rodrigo1. It was held inthis case that the ejusdem generis rule cannot be applied in the inter-pretation of the words “ or other person or tribunal ” in section 42 ofthe Courts Ordinance, and therefore, the Writ of Certiorari would lieagainst all tribunals which have a duty to act judicially. Counsel forthe Respondent sought to re-agitate this question by citing the case ofRe Field General Court Martial2. This was a case decided by threejudges and was fully considered by the Divisional Bench in Abdul Thassiniscase (supra). Counsel for the Respondent contended that the effectof the proviso to section 3 of the Courts Ordinance is to take away anyjurisdiction which the Supreme Court might have had over tribunal,created by statute. This contention, however, is not tenable. Section 3,whereby the Supreme Court, District Court, Court of Requests andMagistrates’ Courts are constituted, states in the proviso that nothingcontained in this section will be held to take away or alter the jurisdictionvested in any Court created by Imperial statute or by any other statutenow in force or any special tribunal legally constituted, for any specialpurpose to try any special case or class of cases.
The effect of this proviso is merely to conserve the jurisdiction conferredon statutory tribunals. But section 42 of the Courts Ordinance expresslyconfers on the Supreme Court the power to issue writs in the nature ofCertiorari in order to control the proceedings of persons and tribunalsreferred to in that section. So far as this Court is concerned, it is toolate now to re-open a question that has been settled by a binding decisionof five judges.
The next question which warrants consideration is what is meant bya tribunal which is under a duty to act judicially 1 This question isoften not an easy one to answer. A body is under a duty to act judiciallyonly if it was bound by statute to decide on evidence between a proposaland an opposition (vide Rex v. L. C. C.3). The Judicial Committee ofthe Privy Council has held that the only relevant criterion was the natureof the process by which the decision was to be reached. “ When itis a judicial process or a process analogous to a judicial process, Certiorarican be granted.” (Nakuda Ali v. Jayaratne 4). The Industrial Courtcreated by the Industrial Disputes Act, has a duty to act judicially.Section 22 of the Industrial Disputes Act, No. 43 of 1950, empowers theGovernor-General to appoint a panel of not less than five persons from
1 (1947) 48 N. L. R. 121 at 127.* (1915) 18 N. L. R. 334.
(1931) 3 K. B. 215 at 233.
(1951) A. C. 66 at p. 75; 51 N. L. R. 457 of 461.
TAMBIAH, J-—Hayleya Ltd. v. CrasacUt. – Thambiah
257
whom the Industrial Court is constituted. Section 4 of the. same Actenables the Minister of Labour to make an Order referring a disputefor settlement by an Industrial Court. By section 23 of the Act, suchan order has to be accompanied by a statement prepared by the Commis-sioner of Labour setting out each of the matters which, to his knowledge,is in dispute between the parties. Section 24 (I) of the Act reads asfollows :—“ It shall be the duty of an Industrial Court to which anydispute, application or question or other matter is referred to or madeunder this Act, as soon as may be, to make inquiries and hear all suchevidence as it may consider necessary, and therefore to take such decisionsor make such award as may appear to the Court Just and equitable ”.
On reading these sections, there can be no doubt that the IndustrialCourt has a duty to act judicially and therefore, it is a tribunal againstwhom a Writ of Certiorari could issue from this Court in appropriatecases. In issuing the Writ of Certiorari the Supreme Court followsthe relevant provisions of the English Law. In view of the large numberof statutory tribunals which exist in this country, with a possibility of asubstantial increase of these statutory bodies, the words of Lord Denningare apposite when he said “ There is nothing more important to mymind than that the vast number of tribunals now in being should besubject to the supervision of the Queen’s Courts. ” (vide per Lord Denningin Baldwin v. Francis Ltd. v. Patents Appeal Tribunal and Others1.) Hencethe Writ of Certiorari will lie against the decision of the Industrial Courtin appropriate cases.
The question whether this Court can . issue a Writ of Certiorari if theIndustrial Court has erred on a point of law which does not affect thejurisdiction of the Court may now be dealt with. In the Northumberlandcase2, the King’s Bench Division held, for the first time, that the Writof Certiorari would issue to quash the decision of a statutory adminis-trative tribunal, for error of law on the face of the “ record ”, althoughsuch a tribunal was not a court of record and although the error did notgo to the jurisdiction of the tribunal. This decision may be regardedas a landmark in the development of administrative law, and it hasalready led to a modest extension of the scope of judicial review both inEngland and in other common law jurisdictions. (See Judicial Review ofAdministrative Action by S. A. de Smith (Stevens) p. 295.) It cannotbe regarded as a new piece of judicial legislation ; it was rather a newapplication of a long established principle. The King’s Bench Divisionin England always exercised the jurisdiction to quash convictional ordersmade by courts stricto sensu in cases where the error of law wasapparent on the face of the record. In the tussle between Parliamentand the Courts, the former retaliated by taking away the right to issueWrits of Certiorari by a number of statutes creating summary offences,and finally, by The Summary Jurisdiction Act of 1848, a standard formof conviction, which omitted all mention of the evidence or the reasoningby which the decision had been reached, was devised, but this, however.,
(1959) 2 A. £. R. 433 at 449 H..
(1951) 1 K. B. 711', affirmed in (1952) 1 K. B. 338 C. A.
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TAMBIAH, J.—Hay leye Ltd. v. Croaaelie- Thambioh
was not a success. This Act did not alter the law relating to Certioraribut it made it virtually impossible for the Courts to correct errors oflaw other than those which went to jurisdiction, for affidavits or oralevidence to show lack of evidence or concealed errors of law on a matterwithin the jurisdiction were, and are, inadmissible. In many cases,“ the face of the record * spoke ’ no longer ; it was the inscrutable faceof the sphinx The King’s Bench Division did not require the justicesto set out the evidence and grounds of decision in orders in civil matters,as distinct from summary convictions. However, when they were“ speaking orders ”, that is, those orders which told their own story,then the justices were at liberty to examine the reasons which were setout in the order and to issue Certiorari to quash it if the reasons werebad in law (vide Judicial Review of Administrative Action—de Smithat page 296).
The principle enunciated in the Northumberland case (supra), that theWrit of Certiorari is not a remedy which could be granted only whenan inferior tribunal had acted without, or in excess of, its jurisdiction,was further elaborated by Lord Denning in Baldwin and Francis Ltd. v.Patents Appeal Tribunal et al.1 In this case, one of the specifications ofan invention, of which the appellants had been granted a patent, definedthe scope of the invention and contained four alternatives referred to asA, B, C and D. The respondents, having subsequently applied for apatent for their own invention, the superintending examiner orderedthat the respondents’ patent should be sealed with a reference to theappellants’ patent on the ground that the respondents’ invention couldnot be performed without substantial risk of infringing the appellants’patent. This decision was based on the risk of infringing alternativeD of the appellants’ patent. The Patents Appeal Tribunal reversedthe decision of the superintending examiner and the Tribunal's writtendecision set out an extract of the appellant’s specification, but made noreference to alternative D in the specification and referred only to alter-native B of the claim. The House of Lords held that a Certiorari did notlie for various reasons. The majority view was that the order was nota speaking order and, therefore, Certiorari did not lie. Lord Denning,however, after stating that if any alternative remedy was available inthe case, Certiorari would lie, dismissed the application on the groundthat there was no alternative remedy. But, in his speech, Lord Denningset out the scope of the Writ of Certiorari as follows :—“ We have onlythe written reasons of the judge to go on, and we cannot presume that hewent by any other. It has long been decided that ‘ where a reason isassigned as the foundation of a judgment, all presumption or intendmentthat the Court went upon better ground is excluded See Burns Justiceof the Peace (30th Edn.), Vol. V, p. 374. That statement rests on theauthority of Lord Mansfield himself, supported by Willes and Buller, JJ..who sat beside him : see B. v. Upton Gray (Inhabitants) (1783) Cald. Mag.Cas. 308); and if it is correct, as I think it is, it forbids us from presumingthat the judge took alternative (D) into account.”
1 (1959) 2 A. B. R. 433 at 444.
TAMBIAH, J.—Hayleya Ltd. v. Croeeette-Thambiah
259
“ Excluding, therefore, all presumption or intendment, it appearsto me that the written decision of the tribunal is based on what was,in the circumstances, an extraneous consideration (namely, thatthere was no substantial risk of infringing alternative (B) ), and failsto take into account a very relevant and, indeed, vital consideration(namely, whether there was any substantial risk of infringing alternative(D) ). Is that error of law ? I have no doubt that it is ; and it isan error of such a kind as to entitle the Queen’s Bench to interfere.There are many cases in the books which show that, if a tribunalbases its decision on extraneous considerations which it ought notto have taken into account, or fails to take into account a vital consi-deration which it ought to have taken into account, then its decisionmay be quashed on Certiorari and a Mandamus issued for it to hearthe case afresh. The cases on mandamus are clear enough ; and ifmandamus will go to a tribunal for such a cause, then it must followthat certiorari will also go ; for when a mandamus is issued to thetribunal, it must hear and determine the case afresh, and it cannotwell do this if its previous order is still standing. The previous ordermust either be quashed on certiorari or ignored ; and it is better forit to be quashed …. (at pages 446 et seq.).
In discussing the question whether Certiorari lies to quash the order ofa tribunal which has taken into account irrelevant circumstances,Lord Denning stated as follows (Ibid, at page 448) :—
“ In R. v. Fulham, Hammersmith and Kensington Rent Tribunal, Exp.Hierowski (1953 2 A.E.R. 4 at p. 6), the tribunal, in reducing the rent,took into account afresh the reasonableness of the amount charged,which was an extraneous consideration as they would ODly have hadregard to the change in circumstances. In Re Gimore's Application(1957 1 A.E.R.796) the tribunal, in assessing compensation for industrialinjury, took into consideration only the injury to the left eye and failedto take into account the prior injury to the right eye. In R. v. Head(1957 3 A.E.R. 426 at 428), the Secretary of State, in ordering thegirl to be detained, failed to consider whether it was required for theprotection of others. In R. v. City of Liverpool JJ,, Exp. W. (19591 A.E.R. 337), the justices, in making the adoption order, failed to con-sider whether there were special circumstances justifying it. In all thoseseveral cases it was held or accepted that certiorari lay to quash thedecisions. In a case in the Privy Council Seereelal Jhuggroo v. CentrakArbitration and Control Board (1953 A.C. 151 at 161), the principle wasaccepted, but certiorari was refused because the Board was held notto have taken in extraneous matters into account.
“ In some of those cases it has been said that the tribunal in fallinginto an error of this particular kind, has exceeded its jurisdiction.
No tribunal, it is said, has the jurisdiction to be influenced by extraneousconsiderations or to disregard vital matters. This is good sense andenables the Court of Queen’s Bench to receive evidence to prove the
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TAMBIAH, J.—Hay leys Ltd. v. Oroseette- Thambiah
error. But an excess of jurisdiction in this sense is very differentfrom want of jurisdiction altogether which is, of course, * determinable> on the commencement, not at the conclusion, of the inquiry ’ (see R. v.Bolton 1841 1 Q.B. 66 at p. 74). Whereas an excess of jurisdiction isdeterminable in the course of, or at the end of, the inquiry. But allowingthat a tribunal which falls into an error of this particular kind doesexceed its jurisdiction, which I am prepared to do, neveithelessI am quite clear that, at the same time, it fallsinto an error of law too ;for the simple reason that it has ‘ not determined according to law ’.That is, indeed, how Blackburn J., put it in R. v. De Rutzen (18751 Q.B.D. 55 at 57) And the decision in the Northumberland case (supra)itself shows that, even though no evidence is given, nevertheless ifsuch an error appears from the documents properly before the Courts,or by legitimate inference therefrom, then certiorari can properly besaid to be for error of law on the face of the proceedings. It may beexcess of jurisdiction as well, but it is certainly error of law.
“ In the present case, it is I think, a legitimate inference from thedocuments properly before the court, that the tribunal, when it cameto give its written and only decision, failed to take into considerationalternative (D) which was a vital matter for consideration. It wasthe sole ground on which the superintending examiner had decidedthe case ; and, before reversing his decision, the tribunal ought tohave considered it. The failure to take into consideration is, I think,a ground on which certiorari may be granted
The observations of Lord Denning dispose the contention of thecounsel for the Respondent that a Writ of Certiorari does not lie unlessthe tribunal has either exceeded the jurisdiction or has acted in excessof its jurisdiction. But it may be said, on the facts of this case, that theduty of the tribunal was to act justly and equitably, in view of section 24of the Industrial Disputes Act, and the members of the Tribunal havemisdirected themselves on the law, not only in what they termed as themain question, but also on the question on which they came to anyconclusion. Hence, it cannot, therefore, be said that they acted justlyand equitably as required by the statute. In that view of the matter,they exceeded their jurisdiction.
The counsel for the respondents also strenuously contended that thisCourt can ignore the misdirection on the law’ referred to, as the IndustrialCourt has also held that there had been victimisation by the petitionerin selecting 17 out of the 198 members who struck, to discontinue theirservices. In the first place, the Industrial Court has not vised the term“ victimisation ’’ and, secondly, although mention is made of the selectiveattitude, of the petitioner, no conclusion is reached by the Tribunalgiving this as a reason for their decision. To adopt the words of Denning
J. “ All presumption or intendment must be excluded when atribunal bases its .decision on an extraneous consideration ”. In theinstant case, the order of the Tribunal is a “ speaking order It says
TAMBIAH, J.—Hay ley a Ltd. v. Croaseite- Thambiah
261
that the main question for consideration is that, in this country, r slay-in-strikes * are not illegal and, on this matter, the Tribunal has seriouslymisdirected itself. One cannot import into their order other reasons w hichare not set out by the Tribunal.
The counsel for the Respondents also urged that here there was no dutyon the part of the Tribunal to follow the provisions of law, and therefore,any misdirection on the law cannot be corrected by this Court. It isindeed a strange proposition to state that, when section 24 of the IndustrialDisputes Act conferred jurisdiction on the Industrial Court to make suchaward as may appear to the Court to be just and equitable such a Tribunalcan completely disregard the law of the country and act in an arbitrarymanner. In my opinion, the Industrial Court should take into accountthe law of the country, and, in particular, the law governing contracts.It is not, however, obliged to give reliefs which a Court of Law has to give ;it is free to award such reliefs as are just and equitable. But it mustbe emphasised that the freedom to give reliefs which cannot be givenby a Court of Law, does not permit the Industrial Court to misdirectitself on an extraneous matter which formed the main reason for itsdecision.
The principles that should be gathered from the cases and dicta referredto, establish the rule that a Writ of Certiorari would lie to an inferiorTribunal if such a Tribunal has posed a particular irrelevant andextraneous question of law as the main and only question and hascompletely misdirected itself on that point and made that the basis of itsdecision, provided that the error appears on the face of the award.
The Industrial Court posed, as the main question for determination,whether or not a “ stay-in-strike ** is legal in this country. I thinkthat it has seriously misdirected itself when it came to the conclusionthat the law of the country, as it now stands, has declared that a “ stay-in-strike ” is not illegal. It is not possible to read into their Order analternative finding to which they have come, and state that they alsoheld that the 17 labourers have been subject of victimisation.
For these reasons, the order of the Industrial Court cannot stand. It isno fault of the 4th Respondent that Respondents 1-3 have misdirectedthemselves on the law. It is a matter of regret that the members of theIndustrial Court, by misdirecting themselves, have not inquired into thegrievances of 17 persons who were members of the Union. The 4thRespondent represented a number of labourers who are in indigentcircumstances.
Counsel for the appellant quite properly stated that he would not askfor costs in this case. The Writ of Certiorari is allowed and the order ofthe Industrial Court is quashed without costs.
Application-allowed.