Sri Lanka Law Reports (1978-79) 2 S. L. R.
Obeysekera v. Albert and Others
COURT OF APPEAL.
SOZA, J. AND ABDUL CADER, J.
C.A. (S.C.) APPLICATION NO. 871/78.
APRIL 2, 1979.
Writ of Certiorari—Application to quash award of arbitrator underIndustrial Disputes Act—Objection that another remedy avilable—Whether Court of Appeal would .exercise its discretion in thesecircumstances—Industrial Depute Act, section 20 (1).
Where in an application for Writ of Certiorari to quash an award madeby an arbitrator in respect of an industrial dispute the objection wastaken that this remedy should not be granted as the petitioner hadanother remedy by virtue of section 20 (1) of the Industrial DisputesAct, and could repudiate the award in terms of that sub-section :
Certiorari is a discretionary remedy and will not normally be grantedunless and’ until the plaintiff has exhausted other remedies reasonablyavailable and equally appropriate. Section 20 (1) of the IndustrialDisputes Act conferred the right on the aggrieved party to repudiatethe award and accordingly he cannot seek a discretionary remedy likecertiorari.
Case referred to
Baldwin & Francis Ltd. v. Patents Appeal Tribunal and Others, (1959) 2AU E.P.. 433; (1959) A.C. 663; (1959) 2 W.L.R. 826.
APPLICATION for a Writ of Certiorari.
E. J. Dharmaratne, for the petitioner.
K.M. P. Herath, for the 1st respondent.
S. C. Dickens, State Counsel, for the 2nd respondent.
3rd and 4th respondents unrepresented.
Cur. adv. mi<t.
April 11, 1979.
This is an application for a mandate in the nature of a writ ofcertiorari quashing the award made by the 3rd respondent inrespect of an industrial dispute referred to him for arbitration.Learned Counsel for the 1st respondent raised an objection inlimine that the Court should not grant prerogative remedieslike certiorari where a party has another remedy provided forhim by the statute. He referred to subsection (1) of section 20of the Industrial Disputes Act by which any party, trade union,employer or workman bound by an award made by an Arbi-trator under the Industrial Disputes Act may repudiate theaward by a written notice in the prescribed form sent to theCommissioner and to every other party, trade union, employerand workman bound by the award. Learned Counsel for thepetitioner sought to meet this argument by submitting that theuse of the word "may” in subsection (1) of section 20 suggests
Obeysekera v. Albert (Soza, J.)
that the option is given to the aggrieved party to either proceedunder that section or to directly seek the intervention of thisCourt. I regret I cannot agree with this interpretation. Certiorariis a discretionary remedy and therefore it will not normally begranted unless and until the plaintiff has exhausted otherremedies reasonably available and equally appropriate. Theword ‘ may ’ is used because the object of the provision is merelyto confer a right on the persons and parties mentioned to seekthe intervention of the Commissioner of Labour where theywish to canvass an award made by an arbitrator In an industrialdispute. What subsection (1) of section 20 does is to confer aright on the aggrieved party to repudiate an award. A partyto an award if aggrieved will have to proceed under subsection(1) of section 20. Where the right of appealing to the Commis-sioner of Labour is available to him, he cannot seek a discre-tionary remedy like certiorari. In the House of Lords case ofBaldwin St Francis Ltd. v. Patents Appeal Tribunal and Others(1), Lord Denning applied this principle saying:
“ I am prepared to assume that the appellants are aggrieved,but as they have another remedy open to them, the Court inits discretion should refuse a certiorari. ”
It was submitted that subsection (1) of section 20 does notapply to the facts in the instant case because the word repudiate■cannot be interpreted as meaning rejection ab initio. Among themeanings given to the verb ‘ to repudiate ’ in the ShorterOxford English Dictionary are—
“ to reject; to refuse to accept or entertain (a thing) .. ”
“ to refuse to discharge or acknowledge (a debt or
other obligation). ”
There is no support for the submission that the word to repu-diate does not apply where the rejection is ab initio. When anaward is made against a party and he considers himself notbound by it and so declares himself he can be said to be repudia1 –
Sri Lanka Law Reports (1978-79) 2 S.LR.
We were addressed on the facts of the case too but it must beremembered that where the remedy by way of certiorari is soughtthe nature of proceedings is that the record alone is examinedand there can be no trial of disputed facts. In the instant case itcannot be contended that the arbitrator has acted in excess ofjurisdiction or that there is error on the face of the record. Itherefore make order refusing the application. On the questionof costs it must be borne in mind that the 1st respondent has beenthe recipient of very generous treatment by the petitioner andearlier by the petitioner’s father. The present situation has beenbrought about by the difficulties created by the Land Reform Lawof 1972. Hence I make no order as to costs.
Application for certiorari dismissed without costs.
ABDUL CADER, J. —I agree.
Obeysekera v. Albert and others