004-SLLR-SLLR-1990-2-PADDY-MARKETING-BOARD-v.-S.-V.-INDUSTRIES-CEYLON-LTD.pdf
PADDY MARKETING BOARD
v.S. V. INDUSTRIES (CEYLON) LTD.
COURT OF APPEAL
WIJETUNGA, J. AND ANANDACOOMARASAMY, J..
A. No. 1257/86,
C. COLOMBO 2458/SPI.,
OCTOBER 13, 14 AND 28, 1989.
Revision — Civil Procedure Code Section 1753—Failure to comply with Supreme CourtRule 46
Arbitration — Award – Misconduct — What is joint participation by the arbitrator.
Revision being an extraordinary remedy, he who invokes the revisionary powers of thecourt should provide the necessary material to enable the relief sought to be obtained.
The issue of notice in an application for revision does not have the effect of the case beingbrought before court as in due course of appeal. Even though revision may lie, the Courtof Appeal is not obliged to call for the record of the case merely on the ground that noticehas been ordered to issue.
So long as the arbitrators are all present together during the proceedings, their deliberationsin regard to the form that toe award should take does not necessarily require their presencetogether at a given place.
Wijetunga, J.—
‘We have moved a long way from the decisions around the turn of the century, when toecourts insisted on toe presence of all the arbitrators at all meetings including the last, for 'an award to be valid.
Presumably, the courts have taken into account toe changed circumstances resulting fromtoe transformation that was taking place due to technological advancement. When we arebarely a decade away from the 21st century, it would not accord with reason to interpretthe concept of 'joint participation’ as being physically present together at one and toe sameplace.
The three arbitrators knew what toe others were thinking in regard to the matter beforethem. There was consultation and an opportunity to exchange views. A draft had beenprovided (by one arbitrator) for the consideration of the other arbitrators. In all thesecircumstances, there was joint participation.*
Cases referred to:
Navaratnasingham v. Arumugam [1980] 2 Sri LR 1
Mariam Beebee v. Seyed Mohamed 68 NLR 36
Muthaliffv. Pedrick 28 CLW22
Rustom v. Hapangama & Co. [ 1978-79] 2 Sri LR/225
Cassini Lebbe Marikar v. Samal Dias 2 NLR 225
European Grain and Shipping Ltd., v. Johnston 1982 Lloyd's Rep 414,19823AIIER989
London Export Corporation Ltd., v. Jubilee Coffee Roasting Co. Ltd 1958 2AUER411
Abu Samid Zahir Ala v. Golam Sarwar AIR 1918 Calcutta 865
Babua Lai Pardhan v. Badri Lai Pardhan AIR 1919 Patna 74
Appayya V. Venkataswami AIR 1919 Madras 877
Dharmu V. Krushna AIR 1956 Orissa 24
Ganesh Chandra v. Artatrana AIR 1965 Orissa 17
ft V. Watson 1988 1 AIIER 897
Re Beck and Jackson (1857)1 CB(NS)695
APPLICATION for Revision of the order of the District Judge of Colombo.
K. N. Choksy, P.C. with D.H.N. Jayama.iaand A. L. BittoMuthunayagamfor respondent—petitionor.
H.L. de Silva, P.C. with E. Gunaratne for petitioner — respondent.
Cur. adv. vult.
April 28. 1989
WIJETUNGA, J.
The petitioner-respondent made an application to the District Court underthe provisions of Section 696 of the Civil Procedure Code seeking to filein Court the majority award made in certain arbitration proceedingsbetween the petitioner-respondent and the respondent-petitioner. Thepetitioner-respondent further sought to obtain judgment according to thesaid majority award. The respondent-petitioner filed objections to thesaid application and the matter proceeded to inquiry. The learned DistrictJudge, by his judgment dated 25.09.86, held that the majority award mustbe filed in Court in terms of Section 696 of the Civil Procedure Code andmade the order nisi absolute.
The respondent-petitioner now seeks, by the present application forrevision inter alia to set aside the said judgment.
The facts relevant to this matter are briefly as follows : —
The parties entered into a contract on or about 11 th January, 1980,to construct certain buildings under the terms and conditions of thesaid contract. Provisionwasmadethereinforanydisputeordifferencethat may arise to be referred to arbitration by three arbitrators one tobe appointed by each party and the two arbitrators so appointed to
designate the third arbitrator. It was further provided that the decisionor award of the majority of the arbitrators shall be final and binding onthe parties. Disputes having arisen between the parties, the respondent-petitioner appointed Mr. J. F. A. Sozaas arbitrator, while the petitioner-repondent appointed Mr. K.Thuraisingham as arbitrator. The two ofthem appointed Mr. M. Chandrasena as the third arbitrator. Theaward sought to be filed in Court is that of Messrs. Thuraisingham andChandrasena, Mr. Soza having dissented there from. The dissent ofMr. Soza too was sought to be filed in Court with the majority award.After objections and inquiry as aforesaid, the learned District Judgemade the order complained of which is sought to be revised in theseproceedings.
The preliminary matter which arises for consideration is whether thiscase attracts the revisionary procedure. It is submitted by learnedPresident’s Counsel for the respondent that the petitioner should havemoved this Court by way of leave to appeal and come under section754(2) of the Civil Procedure Code. In any event, he submits that for therevisionary powers of this Court contained in Section 753 to operate,those powers must be properly invoked but in the instant case, it issubmitted that the petitioner has failed to do so as there has been non-compliance with Rule 46 of the Supreme Court Rules, 1978.
Learned President’s Counsel for the petitioner, on the other hand,contends that leave to appeal is not the correct procedure and if at all, itshould have been a direct appeal under Section 754(1). He, however,submits that notwithstanding a right of appeal, revision lies in appropriatecircumstances and cites a number of authorities in support. It is hissubmission that applying the principles laid down in those cases, revisiondoes lie in respect of this case as extraordinary circumstances exist whichwarrant the exercise of those powers by this Court.
In regard to the contention that there has been non-compliance withRule 46 of the Supreme Court Rules, he submits that, that the Rule mustbe read subject to Section 753 of the Civil Procedure Code and that suchRules must subserve and not govern. Once the petitioner satisfies theCourt that there is a prima facie case and notice is issued, it is obligatoryin his submission for the court to call for the record. He further submitsthat the court cannot deal with the matter in revision unless the record iscalled for and it is still open to the court to make such a direction.
Rule 46 requires that an application by way of revision shall, in additionto the requirements in regard to applications under Article 140 and 141of the Constitution be accompanied by two sets of copies of proceedingsin the Court of First Instance, tribunal or other institution.
In Navaratnasingham v. Arumugam, (1) Soza, J. has expressed theview that in relation to an application for revision, the term ‘proceedings’as used in Rule 46 means much of the record as would be necessary tounderstand the order sought to be revised and to place it in its propercontext.
It is the contention of the respondent that the petitioner having failedto furnish copies of the proceedings in the District Court as contemplatedby this Rule, has thereby omitted to provide the necessary material toenable this court to exercise the powers of revision. The documents filedwith the petition consist of copies of the majority award (P.1), the dissent(P.2), the petition and objections filed in the District Court (P.3 and P.4)the judgment (P.5), the notice of appeal(P.6), the application for executionof the decree (P.7) and the Journal Entries (P.8). The evidence led at theinquiry in the District Court etc. has not been made available to us. Onewould assume that the petitioner has advised itself that only so much ofthe record would be necessary to understand the order sought to berevised and to place it in its proper context. Revision being an extrordinaryremedy, he who invokes the revisionary powers of the Court should in myview, provide the necessary material to enable the relief sought to beobtained.
In regard to the submission that Section 753 casts an obligation on theCourt to call for the record once notice is issued, it becomes necessaryto examine the scope and ambit of that Section.
Section 753 provides that this court “may upon revision of the case sobrought before it pass any judgment or make any order which it mighthave made had the case been brought before it in due course of appealinstead of by way of revision”.
Now in respect of cases brought before it in due course of appeal, theCode has made specific provision in regard to the procedure to befollowed. In the case of a direct appeal, section 755(4) provides that“upon the petition of appeal being filed, the court shall forward the petitionof appeal together with all the papers and proceedings in the case
relevant to the judgment or decree appealed against as speedily as
possible, to the supreme Court” The duty to forward the record
thus rests with the original court.
Where the procedure for leave to appeal has to be resorted to, Section756(7) provides that “upon leave to appeal being granted the Registrar orthe Supreme Court shall immediately inform the original court, and,unless the Supreme Court has otherwise direced, all proceedings in theoriginal court shall be stayed and the said court shall as speedily aspossible forward to the Supreme Court all the papers and proceedingsin the case relevant to the matter in issue". It should be noted that at theprevious stage when notice is ordered to issue, the proceedings in theoriginal court are not stayed, nor is the record forwarded to this court.
If as submitted by counsel, the record should be called for by this courtwhenever notice is ordered to issue in an application for revision, it wouldhave the effect of the case being brought before it at that stage as in duecourse of appeal, instead of by way of revision. If that were the intentionof the legislature, it would have made provision similar to that referred toabove, requiring the record to be forwarded to this Court upon noticebeing ordered to issue.
I am unable to agree with this submission. It is precisely forthe purposeof avoiding the record being forwarded to this court at the stage whennotice is ordered to issue, that Rule 46 of the Supreme Court Rulesrequiresthat an application by way of revision shall……… “be accompanied
by two sets of copies of proceedings in the Court of First Instance, tribunalor other institution.”
This rule to my mind does not govern but subserves the provisions ofthe Code and gives effect to those provisions by regulating the practiceand procedure.
In terms of this Rule an application for revision should be by way ofpeitition and affidavit in support of the averments set out in the petition andshould be accompanied by originals of documents material to the case orduly certified copies thereof in the form of exhibits. In addition, it shouldalso be accompanied by two sets of copies of proceedings in the Courtof First Instance, tribunal or other institution. The objections of therespondent and counter-affidavit, if any, would comprise the other
material available to the Court, unless the parties have filed amended oradditional papers or objections in conformity with the Rules. The scopeand ambit of the application is thus restricted to the material referred toabove. It is therefore important that a person who seeks this extraordinaryremedy should advise himself as to what constitutes ‘proceedings' in thecase and would in my opinion, stand or fall by the material so furnished.
In the instant case, the legality and propriety of the award is beingchallenged on the ground that the decision is vitiated. It is furthersubmitted that there has been a departure from the accepted principlesof law relation to arbitration. Prima facie, therefore a question of law ofconsiderable importance in arbitration appears to come up for decision incircumstances which it is submitted are extraordinary.
As has been held in Marim Beebee v.Seyed Mohamed{2) the powerof revision is an extraordinary power which is quite independent of anddistinct from the appellate jurisdiction of this court.
In Mpthaliff v. Pedrick (3) it has been held that the Supreme Court willexercise its powers of revision even in a case in which an appeal lieswhere inter alia a fundamental rule of judicial procedure has beenisolated.
More recently in Rustom v. Hapangama & Co. (4) it has been held thatthe powers by way of revision conferred on the Appellate Court are verywide and can be exercised whether an appeal has been taken against anorder of the original Court or not. However, such powers would beexercised only in exceptional circumstances when an appeal lay and asto what such exceptional circumstances are dependant on the facts ofeach case.
The term extraordinary though it is synonymous with the term‘exceptional’, is in my view more appropriate in the context of thecircumstances of this particular case. Such extraordinary ‘circumstances’should in my opinion attract the revisionary powers of this Court which arethemselves extraordinary. The petitioner is therefore prima facie entitledto invoke the revisionary powers of this Court independently of whetheran appeal lies or not.
As early as in 1896, the Supreme Court has in Cassim Lebbe Marikarv. Samal Dias (5) in fact exercised its revisionary powers in a matterconcerning a reference to arbitration.
However while holding that revision lies in these circumstances, thisCourt forthe reasons stated above, does not consider itself obliged to callfor the record of the case merely on the ground that notice has beenordered to issue.
The petitioner has come to this Court on the ground of ‘misconduct ofthe arbitrator' mentioned in Section 691 (2) (a) of the Civil ProcedureCode. It is submitted that a valid award could not have been made as thethree arbitrators were unable to meet and discuss the matter, before theaward was made. This being a basic legal requirement, it is submittedthatthere has been legal misconduct on the part of the arbitrator.
The ground relevant to this submission is set down in para. 6 (b) of thepetition as follows
“that the 3 Arbitrators had failed to consider and discuss the matterswhich formed the subject of the purported “majority award jointly witheach other and that, therefore, the majority award was thereby vitiatedand ought not to be filed and enforced.”
The circumstances in which the three arbitrators ‘had failed to considerand discuss the matters’ as aforesaid are set out in the dissent of Mr.Soza, filed with this petition marked ‘P.2’, wherein he states as follows:-
‘I regret to have to write my own award because it was not possiblefor me to work out any accord with Mr. M. Chandrasena in thediscussions I have had with him. The other Arbitrator Mr. K.Thuraisingham left Sri Lanka on the night of 31.10.1984 for Americaafter three inconclusive conferences on 29,30 and 31 st October whichI attended only in deference to his requests although I had not yetstudied the proceedings sufficiently. In fact the proceedings had beenconcluded only on the 28th October and the last batch of the record ofthe proceedings was received by us on 31 st October around 4.30 p.m.Mr. Thuraisingham has sent me draft award signed by him wherein hediffers from the views expressed by Mr. Chandrasena especially onthe reckoning of liquidated damages. In the covering letter (incidentallydated 31.12.1984) enclosing the draft dated 20.11.1984 and posted inSri Lanka by Registered post on 27.12.1984, Mr. Thuraisinghamstates “It will be clear from my report that no one will incur any loss otherthan the cost of arbitration.” I cannot however see how this could be theeffect of his findings in his draft ‘report’. Further he invites my
comments and my “draft copy”. Having regard to the manner in whichhe has committed himself to his conclusions I do not think any purposewould be served by my furnishing my comments or draft to Mr.Thuraisingham. His non-availability for discussions after all threearbitrators had reasonable time to study and consider all the proceedingstogether was a severe handicap. Further in a letter sent subsequentlyto that enclosing his “draft" to Mr. Chandrasena he has indicated thathe will agree with him (Mr. Chandrasena) in case I do not agree withMr. Chandrasena.’
“I do not rule out the possibility of Mr. Thuraisingham not agreeingon all points with Mr. Chandrasena but do not agree with both of them.In this situation I have no course open to me but to set down my ownfindings on the questions or issues referred to us.”
It is clear from these circumstances that the three arbitrators had not‘met and dicussed’ the award in person. It is submitted that the failure toso meet and discuss the award is legal misconduct.
In A. R. R. 1928 Bombay 49, It has been held that The word misconduct
does not necessarily imply anything in the nature of fraud. But it
certainly may include cases where the arbitrator had failed to perform theessential duties which are cast upon him as an arbitrator, as he isoccupying a quasi-judicial position.”
In A.I.R. 1958 Allahabad 692, it has been held that:
“misconduct not amounting to moral turpitude is called legalmisconduct and has a very wide meaning. It is difficult to give anexhaustive definition of what amounts to legal misconduct. It mayhowever be stated that legal misconduct means misconduct in thejudicial sense arising from some honest, though erroneous, breachand neglect of duty and responsibility on the part of the arbitratorcausing miscarriage of justice. There may be ample misconduct in alegal sense to make the court set aside the award even when there isno ground to impute the slightest improper motive to the arbitrator. Itincludes failure to perform the essential duties which are cast on anarbitrator as such. It also includes any irregularity of action which is notconsonant with general principles of equity and good consciencewhich ought to govern the conduct of an arbitrator.”
Halsbury (4th Ed.): Vol. 2: Arbitration states at para 622 – example (4)that if there has been in the proceedings as, for example, where thereference being to two or more arbitrators, they did not act together, thearbitrator has misconducted himself and the court has power to set asidehis award.
Russel on Arbitration (20th Ed., 1982), dealing with ‘misconduct’ atpage 406 states that “where the reference is to three arbitrators all mustparticipate in the process of determining the dispute even though theaward of any two is sufficient.”
He cites the case of European Grain and Shipping Ltd. v. R. Johnston(6) where one of three arbitrators absented himself leaving behind asignature intended to certify participation, and it was held that he waswrong in so doing and the other two arbitrators were equally wrong toproceed to a decision in his absence. The award would have been setaside but for the fact that the party seeking to set it aside had waived theirregularity.
Again, in London Export Corporation Ltd., v. Jubilee Coffee RoastingCo. Ltd., (7) it has been held that an award had been rightly set asidebecause, apart from any question of custom or practice, the procedure ofthe board in giving private audience to the umpire and conferring with himin the absence of the parties would be an irregularity amounting to‘misconduct’ justifying the board's award being set aside.
These authorities indicate what amounts to ‘ misconduct’ and areample to support the proposition that where ‘legal misconduct' isestablished, the court would be justified in setting aside an award.
It has now to be examined whether such misconduct has beenestablished in the instant case. The misconduct complained of is thealleged failure of the three arbitrators to consider and discuss the matterswhich formed the subject of the purported majority award, jointly witheach other. This brings us to the question of the arbitrators’ duty to acttogether.
In AbuSamidZahirAia v. GolamSarwar (8) A. I. R. 1918 Calcutta 865,it has been held that inasmuch as the parties to a submission to arbitrationhave the right to the presence and effect of the arguments, experienceand judgment of each arbitrator at every stage of the proceedings, so thatby conference they may mutually assist each other in arriving at a just
conclusion, it is essential that there should be an unanimous participationby the arbitrators in consulting and deliberating upon the award to bemade.
In Babua LalPatdhan v. Badri Lai Pardhan (9) it has been held that thepresence of all the arbitrators, where there are more than one, at allmeetings and above all at the last meeting when the final act of arbitrationis done is essential to the validity of the award.
In Appayya v. Venkataswami, (10) it has been held that for a finalaward by arbitrators to be valid, it is essential that all the arbitrators shouldhave been present at all the meetings including the last, that witnessesshould have been examined in the presence of all and that all should haveconsulted together as to the form that their award should take.
In Dharmu v. Krushna, (11) it has been held that when a matter isreferred to the arbitration of more than one arbitrator, all the arbitratorsmust act together in every stage in order that the parties to the referencemay have the benefit of the considered judgment of every one of thearbitrators in the matter of the reference, and that it contemplates adeliberation jointly of all the arbitrators, though after this joint deliberationand joint partaking in all the proceedings by all the arbitrators, there mightbe a difference of opinion when a majority decision would be final.
In Ganesh Chandra v. Artatrana, (12) it has been held that there wouldbe misconduct unless all arbitrators act together in every stage of thearbitration proceedings.
In European Grain and Shipping Ltd. v. Johnston (6) (Supra), it hasbeen held that an arbitration conducted by a tribunal of several arbitratorsnecessarily required a joint process of full and complete adjudication byall of them, so that the ultimate award represented the state of mind of allof them at the time when they signed it. Although it was not necessaryfor the arbitrators themselves to sign the award at the same time andplace, the award could only be determined after the arbitrators had eachconsidered the facts in dispute and had mutually reached an agreementas to the form the award should take. It followed that since the arbitratorappointed by the sellers had not actually participated in the award,although on the face of it he appeared to be a party to it, there weregrounds for setting aside the whole award. However, since the sellershad accepted the benefit from the first part of the award, they could notafterwards dispute the award by challenging the second part.
R. V. Watson, (13) though not directly in point, deals with a directiongiven to a jury warning them that it might cause public inconvenience orexpense if they cannot agree, and stresses that a jury has a duty to actnot only as individuals but collectively by giving their own views andlistening to the views of the others in arriving at a verdict. It holds that sucha direction should not be given because of the risk that it might imposepressure on jurors to express agreement with a view they do not truly hold.
Mustill & Boyd in the Law and Practice of Commercial Arbitration inEnglish, (1982 Ed.) state at pages 322 and 323 that where the referenceis to more than one arbitrator, all the arbitrators must act together, unlessthe arbitration agreement provides otherwise and quote Creswell, J’sobservations in Re Beck and Jackson (14) (citing Russel) that “the partiesare entitled to have recourse to the arguments, experience and judgmentof each arbitrator at every stage of the proceedings broughtto bear on theminds of his fellow judges so that by conference they shall mutually assisteach other in arriving together at a just conclusion". Although the awarditself may properly reflect the views of only two members, all three must-participate in the reference.
On the authorities cited above, it is patently clear that there should be‘joint participation' for an award to be valid. As what is required is bringingthe minds together, the question arises whether face to face sittings arealways necessary for the process of consultation. Cannot there be ‘jointparticipation' through such devices as the telephone, telex and fax? Or forthat matter, cannot there be a meeting of the minds throughcorrespondence via the post, by exchanging views and circulating draftsfor each other’s consideration ? As 'participation' requires availing one'sself of the opportunity for 'discussion,' was there such an opportunityavailable to the three arbitrators in the instant case ?
To my mind, in this modern age, ‘joint participation' does not necessarilymean sitting together at a table and engaging in a discussion. If the sameobjective could be achieved through other media, I see nothingobjectionable in such a course of action. This attitude is reflected in theEuropean Grain and Shipping Ltd., case (Supra) when it states that it wasnot necessary forthe arbitrators themselves to signthe award atthe sametime and place. What was required was a joint process of full andcomplete adjudication so that the ultimate award represented the stateofmind of all of them at the time when they signed it.’
Lord Denning's observations in that case are quite apposite in thiscontext
“I think the time has come when we should lay down a different rule.Business convenience requires it. Nowadays, wheneveran agreementor award or any other document is to be done by two or three jointly,the practice is for one or the other to draw up a draft and send it to theother or others for their consideration and comments. One or othermay suggest amendments and send it back. So it goes to and fro untilthe draft is agreed. Once the draft is agreed, all that remains is for it tobe copied out in a legible form ready for signature. If it is already legible,it need not even be copied out. It is then sent round and signed by eachseparately. Once all have signed, it becomes the final document. It isquite unnecessary for them all to meet together to sign it. When eachappends his signature, he expresses his assent to it and then, as soonas the others sign, it becomes final. In short, whenever all have signed,each must be regarded as having assented to it, even though eachsigned it at a different time or place from the others. That principleapplies to an award of arbitrators just as it does to a written agreementor any other document to be executed by two or three people."
– Unlike in a jury trial where the law requires the jurors to be all presenttogether until the verdict is signed by the foreman, the physical presenceof the arbitrators at the same time and place to sign the award is no longernecessary. But, the arbitrators could still adhere to the principles laiddown in R. vs. Watson (Supra) in regard to the duty to act not merely asindividuals but collectively by ‘giving’ their own views and ‘listening’ to theviews of the others throught the methods of communication available tothem. In my view, so long as the arbitrators are all present together duringthe proceedings, their ‘deliberations’ in regard to the form that the awardshould take does not necessarily require their physical presence togetherat a given place.
We have moved a long way from the Indian decisions around the turnof the century, when the courts insisted on the presence of all thearbitrators at all meetings including the last, for an award to be valid. The1956 Indian decision in Dharmu v. Krushnu (Supra) is indicative of thistrend when it speaks of the arbitrators having to ‘act together in everystage’. The 1965 decision in Ganesh Chandra v. Artatrana (Supra) hasalso adopted the words ‘act together in every stage’. Presumably, theCourts have taken into account the changed circumstances resultingfrom the transformation that was taking place due to technologicaladvancement. When we are barely a decade away from the 21 st century,it would not accord with reason to interpretthe concept of ‘joint participation'as being physically present together at one and the same place.
It would be appropriate at this stage to considerthe sequence of eventsin the case before us. According to Mr. Soza’s dissent itself, the arbitratorshad held 16 sittings in all, spanning a period of over six months, from Aprilto October, 1984. the last of such sittings being on 28th, October. Therehad thereafter been 3 conferences on 29th, 30th and 31 st October. Weare not aware of the length or duration of those conferences. Mr.Thuraisingham had left the Island on the night of 31st October. He hadsent Mr. Sozaa draft award which would have been received by the latteraround 28th December, 1984. He had invited Mr. Soza’s comments onthe draft. But, according to Mr. Soza, 'having regard to the manner inwhich he has committed himself to his conclusions, (he did not) think anypurpose would be served by (his) furnishing, (his) comments or draft toMr. Thuraisingham.’ Though Mr. Soza did not ‘rule out the possibility ofMr. Thuraisingham not agreeing on all points with Mr. Chandrasena’, hedid not ‘agree with both of them.’
These observations indicate that the three arbitrators knew what theothers were thinking in regard to the matter before them. It is not that theywere acting independently of each other and coming to their ownconclusions.There was consultation and an opportunity to exchangeviews. Differences of opinion apparently did exist even between Mr.Thuraisingham and Mr. Chandrasena. A draft had been provided by Mr.Thuraisingham for the consideration of the other arbitrators. In all thesecircumstances, there was, in my view, joint participation. Mr. Soza himselfknew on what points he differed from the other arbitrators, but it appearsthat he found himself unable to agree with the other two and there was nopossibility of bridging the gap. The resulting position then was that themajority decision became the award in the case. In this situation, thecomplaint of ‘legal misconduct’ cannot be sustained and the petitionerfails on the principle ground.
This Court is being called upon to test the validity of the conclusionsreached by the learned District Judge. The Judgment refers to the factthat Mr. Soza had been called by the present petitioner to testify at theinquiry, but we do not have the advantage of perusing his testimony, asthe oral evidence led at the inquiry has not been made available to us. Itwas incumbent on the petitioner to have provided the necessary materialand it must, therefore, take the consequences of its failure.
However, on the available material, the learned District Judge was wellentitled to have reached the conclusions contained in his judgment.There is nothing to indicate that those conclusions were insupportable.Nor is there any evidence of a miscarriage of justice.
In the result, the petitioner has failed to satisfy this court that itsrevisionary powers should be exercised, in the facts and circumstancesof this case. The application therefore, is dismissed with costs.
ANANDA COOMARASWAMY, J.—I agree.