KANAGARATNA v. RAJASUNDERAM

042-SLLR-SLLR-1981-1-KANAGARATNA-v.-RAJASUNDERAM.pdf


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KANAGARATNA
v.
RAJASUNDERAM
SUPREME COURTSAMARAKOON C. J..
SHARVANANDA J. ANDWANASUNDERA J.
S.C. APPEAL 23/79S.C. APPLICATION NO. 133 OF 1976D.C. MALLAKAM NO. 1097LA/CA 21/78SEPTEMBER 22.1981.
Writs of Certiorari and Prohibition —Interdiction of branch manager as newly appointedDirector — Suit by interdicted Director for declaration that interdiction was illegal — In-terim injunction – Writ to quash order issuing interim injunction — Co-operative SocietiesLaw No. S of 1972 S. 58(1 He) -Touching the business.
The branch manager of a Multipurpose Co-operative Society was appointed Direc-tor by the Assistant Commissioner of Co-operative Development. The other Directors(save one) interdicted the newly appointed Director for bringing discredit to the Society,divulging its secrets and spreading false propaganda. The interdicted Director sued theSociety challenging the interdiction and obtained an interim injunction on the groundof absence of jurisdiction.
Held;
The availability of an alternative remedy does not prevent a Court from issuing a Writof Prohibition in cases of excess or absence of jurisdiction. The issue of a Writ of Prohi-bition makes a writ of certiorari superfluous. The appellate Court could, no doubt, de-cide the question of jurisdiction but it by no means follows that because there is anappeal, the power of the Court to issue a prohibition is taken away. There is no techni-cal obstacle to the co-existence of a right of appeal and to a writ of prohibition.
The dispute was between the Society and its employee. Activities which are necessa-rily done to make the trade flourish and bring profits, hiring of labour and staff, their dis-ciplinary control, their conduct in and of the business are all matters that are part andparcel of running the business and therefore touch the business. Suspension of an em-ployee for conduct alleged to have been improper and harmful to the business and adispute arising therefrom as to the employer's right to do so is a dispute touching thebusiness within the meaning of section 58(1 )(c) of the Co-operative Societies Law No. 5of 1972.
Cases referred to
(DSirisena v. Kotawera — Udagama Co-operative Stores Ltd., 51 NLR262
Channel Coaling Company v. Ross (1907) 1K8 145, 146
R. v. Comptroller-General of Patents (1953) 1 All ER 862,863
The Multipurpose Co-operative Society Ltd., v. Gunatilleke 74 NLR 151
Harris v. Amery (186666) 1 LRCP 148, 154
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(B)G.I.P. Railway Employees Co-op Bank v. Bhikhaji AIR 1943 Bombay 341{71 Madhave Rao v. Surya Rao AIR 1954 Madras 103
Appeal from judgment of the Court of AppealS. Mahenthiran for appellant.
Respondent absent and unrepresented.
Cur. adv. vult.
October 23, 1981
SAMARAKOON, C. J.
The 3rd Respondent was at all times relevant to this appeal em-ployed by the Chankanai Multi Purpose Co-operative Society Ltd,(hereinafter referred to as the Society) as Manager of its Branchbusiness. On 25.09.1975 the Assistant Commissioner of Co-opera-tive Development for Jaffna acting under powers vested in him byBy-Law 52(C) nominated the 3rd Respondent as an employeeDirector of the Society. (Vide 3R1). The 3rd Respondent allegesthat this appointment did not meet with the approval of the otherDirectors of the Society. He further alleges that he was cold shoul-dered and not summoned for meetings of the Board of Directors.He states that he instituted action No. 1050/Misc. in the DistrictCourt of Mallakam to establish his rights. The Defendant in thecase then filed answer disputing inter alia the jurisdiction of theCourt to entertain the action and stating further that the disputewas one referable to arbitration. That action is pending in the Dis-trict Court.
By letter dated 24.02.1976 (3R2) the Society interdicted the3rd Respondent with effect from 27.02.1976 citing the followingreasons
"1. Conducting to bring discredit to the position of thisSociety."
"2. Divulging secrets of the Society to those who are not con-nected with the Society."
"3. Spreading false propaganda and unnecessary rumoursabout the Society."
All the Directors except the 4th Respondent approved of this in-terdiction. The 3rd Respondent then instituted this action prayinginter alia for a declaration that the order of interdiction was ille-gal and also for an interim and permanent injunction restrainingthe Board of Directors from acting on the letter (3R2). The Dis-trict Court granted the interim injunction prayed for in the plaint.
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The Society and the 1st to 13th Petitioner-Respondents then filedapplication dated 25th March, 1976, in the then Supreme Courtpraying for a Writ of Certiorari quashing the order upon which theinterim injunction issued and also for a Mandate in the nature of aWrit of Prohibition on the 1st Respondent. (Acting District Judgeof District Court Mallakam who made the Order) on the 2ndRespondent (the permanent District Judge of the Court) " or anyother Judge of the said Court from proceeding with the said ac-tion.” This application was heard by the Court of Appeal whichordered both writs to issue for the reason that the District Courtwas not possessed of jurisdiction to entertain this action.
We are not here concerned with the dispute between the Socie-ty and the 3rd Respondent qua employee Director. This action isone that concerns the relationship of employer and employeeupon a contract of service. The Court of Appeal was of the viewthat the provisions of section 58(1 )(c) of the Co-operative Socie-ties Law No. 5 of 1972 were applicable to this case. Before I deal withthis provision I desire to deal with another submission. It was con-tended that the Society had an alternative remedy available, andtherefore relief by way of Writ was not available. It is said thatthe Society and its Directors could have, and should have, gonebefore the District Court and obtained a dissolution of the interiminjunction and also pleaded the total lack of jurisdiction. Counselsubmitted that the provisions of section 666 of the Civil Proce-dure Code should have been resorted to and that Writs of Cer-tiorari and Prohibition were therefore not available. Ranasinghe, J.has cited the case of Sirisena v. Kotawera Udagama Co-operativeStores Ltd. There Gratiaen J. pointed out that there is "nodoubt a well recognised principle of law that the Supreme Courtwill not as a rule make an order of Mandamus or Certiorari wherethere is an alternative and equally convenient remedy available tothe aggrieved party. But the rule is not a rigid one". Here we arealso concerned with a Writ of Prohibition. It has been prayed forand granted on the basis of a total absence of jurisdiction. Theissue of a Writ of Prohibition makes the Writ of Certiorari super-fluous. The availability of an alternative remedy does not preventa Court from issuing a Writ of Prohibition in cases of excess orabsence of jurisdiction. "On the broad principle that it is estab-lished that the Court is acting beyond its jurisdiction, I am ofopinion that the case is one in which the Court ought not torefuse to issue a Writ of Prohibition, "per Lord Alverstone, C.J. inChannel Coaling Company v. Ross *2'. "Objection to jurisdictioncan always be taken by plea, and, if an appeal lies from the Courtor Tribunal in which such a plea is raised, the Appellate Courtcould, no doubt, decide the question of jurisdiction, but it by no
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means follows, that, because there is an appeal, the power of thisCourt to issue a prohibition is taken away. There is no technicalobstacle' to the co-existence of a right to appeal and to a prohi-bition." per Lord Goddard, C.J. in R. v. Comptroller-General ofPatents ^ I therefore reject the argument that these applicationsfor Writ of Certiorari and Writ of Prohibition could not be main-tained and therefore sh'ould not have been entertained by theCourt of Appeal.
The Court of Appeal has sought to follow the principles laiddown in the case of The Multipurpose Co-operative Society Ltd. v.Gunatileke That was a case in which the Plaintiff sued fordamages for injuria in that the Defendant Society "wrongfully andmaliciously and without any manner of reason" terminated hismembership. Fernando, C.J. held that the words "touching thebusiness of the Society"embraced "matters peculiar to associationof persons". He therefore held that the dispute was referable toarbitration in terms of section 53(1 )(b) of the Co-operative Socie-ties Ordinance (Chapter 124). We are not here concerned withmembership but with the status of a servant employed in thebusiness. Chapter 124 was repealed by the Co-operative SocietiesLaw No. 5 of 1972 (Vide Section 73(1)). Section 58(1 )(c) of theLaw reads thus-
"58(1) If any dispute touching the business of registered societyarises –
(c) between the Society or its Committee and any Officer oremployee of the Society, whether past or present, or anyheir or legal representative of any deceased officer or em-ployee such dispute shall be referred to the Registrar for adecision."
We have in this case a dispute of a kind between the Society andits employee. But is it one touching the business of the Society ?Business is synonymous with trade. But the word business "has amore extensive significance than trade" per Willes J. in
Harris v. Amery *5!lt comprises all those activities which arenecessarily done to make the trade flourish and bring profits. Hiring of
labour and staff, their disciplinary control, their conduct in and ofthe business, are all matters that are part anfi parcel of running thebusiness and therefore touch the business. I have no hesitation inholding that suspension of an employee for conduct alleged tohave been improper and harmful to the business and a disputearising therefrom as to the employer's right to do so is a disputetouching the business within the meaning of section 58(1)(c) of
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Law No. 5 of 1972. Vide G. I. P. Railway Employees Co-op. Bankv. Bhikhaji ,B) (A. I. R. 1943 Bombay 341) and Madhava Rao v.Surya Rao (7). The District Court therefore had no jurisdiction toentertain the action and the Court of Appeal correctly issued theWrit of Certiorari and the Writ of Prohibition. The appeal istherefore dismissed.
Sharvananda, J.I agree.
Wanasundera, J.I agree.
Appeal dismissed