All Ceylon Commercial and Industrial Workers' Union
v. Nestle Lanka Ltd. (Jayasuriya, J.)
evidence establishes further that the employee Hemasiri hadrefused to accept the warning letter R2 and also to show cause letterwhich was marked as R3.
The employee Hemasiri in his evidence has attempted to state thathe did not refuse to accept the letter of warning marked R2 but thathe had merely requested that the acceptance of the letter betemporarily delayed and that he believed that it was not wrongful onhis part to delay accepting the said letter. Further, the employeeHemasiri had attempted falsely to state that he was not the authorof the letter dated 19th of March, 1992, which was produced markedR1. The arbitraror has held having regard to the provisions of theCollective Agreement entered into between the employer and theemployee that employee Hemasiri had no right either to refuse toaccept the letter or to temporarily delay the acceptance of thesaid letter. Despite the evasive answer given by the employee Hemasiriit is manifestly established having regard to the attendantcircumstances proved and on the application of the principle of probabilitythat employee Hemasiri had refused to accept the letter of warningmarked R2. In these circumstances it is incumbent on the arbitrarorto determine whether such wilful refusal to accept the letter issuedby the employer-company addressed to an employee, amounts to anact of wilful disobedience to a legitimate request by the employer andalso whether it amounts to a wrongful act of defiance of the authorityof an employer by an employee. Thereafter, to determine whetherthese acts amount to grave misconduct. The arbitrator has concludedespecially as the employee held the responsible post of secretary ofthe trade union that it was entirely a wrongful act on his part tohave defiantly refused to accept the aforesaid letter. The arbitratorhas also held that without sufficient cause and justification he hasmade false allegations and accusations against the Personnel Officer.
The arbitrator thereafter proceeds to hold in respect of count fivethat by the aforesaid first two acts the employee Hemasiri has createddispleasure, disaffection and ill feeling between the workers and theemployer-company. There has been no evidence or materialwhatsoever elicited before the arbitraror which entitled him to arriveat the aforesaid inference and findings.
Sri Lanka Law Reports
[1999] 1 Sri LR.
The arbitrator to whom a reference has been made in terms ofsection 4 (1) of the Industrial Disputes Act as amended is expectedto act judicially. He is required in arriving at his determinations todecide legal questions affecting the rights of the subject and hencehe is under a duty to act judicially. Although such arbitrator does notexercise judicial power in the strict sense, it is his duty to act judicially.In Attorney-General of Australia v. Regirnf'» Lord Simonds deliveringthe Privy Council judgment observed :
"It is desirable to repeat that the function of an industrialarbitrator is completely outside the realm of judicial power and isof a different order. However, the decisions clearly mark out thatsuch an arbitrator is required to act judicially."
See the decision in South Ceylon Democratic Workers' Union v.SelvaduraP'; Stratheden Tea Co., Ltd v. SelvaduraPK In Heath & Co.Ltd. v. Kariyawasam and 2 Others, Justice A. L. S. Sirimane deliveringthe Supreme Court judgment emphasizes that in the assessment ofthe evidence an arbitrator appointed under the Industrial Disputes Actmust act judicially and that if he does not, his award is liable to bequashed in an application for certiorari. Justice Sirimane describesthe findings reached by the arbitrator in that case as being so'completely contrary to the weight of evidence that one can onlydescribe it as being perverse.
It has been stressed that such an arbitrator's function is judicialin the sense that he has to hear parties, decide facts, apply ruleswith judicial impartiality and his decision is objective as that ofany court of law, though ultimately he makes such award as mayappear to him to be just and equitable. Vide the decision in NadarajaLtd. v. Krishnadasari^.
Thus, there is no evidence or material which has been adducedwhich could support the aforesaid inference and findings reached bythe fourth respondent. Findings and decisions unsupported byevidence are capricious, unreasonable or arbitrary. Minister of NationalRevenue v. Wrights Canandian Ropes Ltd.{6>; Argosy Company Ltd.v. IRC™; Osgood v. Nelsorf®>; Maradana Mosque Trustees v. Mahamud9);
CAAll Ceylon Commercial and Industrial Workers' Union
v. Nestle Lanka Ltd. (Jayasuriya, J.)349
De Smith in his judicial review of Administrative Action — 4th editionpage 133 – sets out the principle that a deciding authority “which hasmade a finding of primary fact wholly unsupported by evidence orwhich has drawn an inference wholly unsupported by any of theprimary facts found by it will be held to have erred in point of law… The 'no evidence rule is well-established; … and it has establisheditself because superior courts exercising appellate or supervisoryjurisdiction in respect of errors of law need to have power to intervenewherever manifest and gross error is revealed."
The “no evidence rule" does not contemplate a total lack ofevidence; it is equally applicable where the evidence taken as a whole,is not reasonably capable of supporting the finding or decision (videAllinson v. General Medical Council'01 at 760 or where no decidingauthority could reasonably reach that conclusion on that evidence(vide R. v. Roberts<"• at 423).
Lord Atkinson in Folkestone Corporation v. Brockmart'2) at 367remarked : "an order made without any evidence to support it is truth,in my view, made without jurisdiction. Contra – R. v. Nat Bell LiquorsLtd.{'3) at 151 per Lord Sumner. R. v. LudloW'A) per Lord GoddardCJ. However, Lord Denning in 0‘reilly v. Mackmarf'5) at 253 hasimpugned the statement of the law pronounced by Lord Sumneras the darkest moment of the "Blackout of any developmentof Administrative Law". Other decisions have described a "no evidencefinding" as unreasonable, perverse and arbitrary and thereforeultra vires for other reasons".
Wade and Forsyth on Administrative Law – 7th edition at page316 – conclude that despite the absence of an authoritative decisionreviewing the justification for and against the "no evidence rule", "itseems clear that this ground of judicial review ought now to beregarded as established on a general basis … it conforms so wellto other developments in administrative law that one can only assumethat the older authorities to the contrary, impressive though they are,may now be consigned to the limbo of history. 'No evidence' seemsdestined to take its place as yet a further branch of the principle ofultra vires, so that Acts giving powers of determination will be taken
Sri Lanka Law Reports
[1999] 1 Sri L ft
to imply that the determination must be made upon some acceptableevidence. If it is not, it will be treated as arbitrary, capricious, andobviously unauthorised*.
In R. v. Northumberland Compensation Appeal Tribunal – ex parteShaw 195101’ (affirmed in 1952 1 KB 338), the Divisional Court ofthe Kings Bench Division held that certiorari would issue to quashthe decision of a statutory administration tribunal for an error of lawon the face of the record, even though that tribunal was not a courtof record and although that error did not go to the jurisdiction of thetribunal. This decision pronounced by Lord Denning appeased at leastto a certain extent, the public demand for better justice in the welfarestate and it marked the commencement of a new era of judicial review.
I hold that there is an error on the face of the record which entitlesthis Court in the exercise of its power of certiorari to quash theaforesaid award as the finding in regard to ground five had beenreached bereft of any evidence or any material which has been elicitedbefore the arbitrator. In the circumstances we allow the applicationof the petitioner and make order quashing the award made bythe fourth respondent dated 9th July, 1996, which has been markedas P7 and which has been published in the Govt. GazetteExtraordinary No. 938/1 dated 26th of August, 1996.
We allow the application but having regard to the attendantcircumstances which have been disclosed upon this application, wemake no order as to costs. We direct and order the HonourableMinister of Labour to make another reference in terms of section 4(1) of the Industrial Disputes Act No. 14 of 1957 (as amended)appointing another arbitrator to settle the aforesaid dispute byarbitration. This direction is made in view of the principle laid downby Justice Sharvananda in the decision in Nadaraja Ud. v. Krishnadasan{supra) which is referred to and adopted in Shell Gas Company v.All Ceylon Commercial & Industrial Workers’ Uniori'7' at 124.The application is allowed without costs.
KULATILAKE, J. – I agree
Application allowed.