SIVA SITHAMPARAM v. NATIONAL PAPER CORPORATION AND OTHERS

030-SLLR-SLLR-2003-V-3-SIVA-SITHAMPARAM-v.-NATIONAL-PAPER-CORPORATION-AND-OTHERS.pdf


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SIVA SITHAMPARAMvNATIONAL PAPER CORPORATION AND OTHERSCOURT OF APPEALJAYASINGHE, J.
EDIRISURIYA, J.
CA 1251/98
ARBITRATION NO. A 2629
Aipitration Award – Doctrine of Severability – Could a writ of certiorari beissued to quash a part of the award?
After petitioner was reinstated a dispute arose between the petitioner and therespondents regarding the petitioner’s increments and promotion. The matterwas referred for Arbitration, of the four matters inquired into, the award wasmade only as regards salary increments.
The Petitioner sought to have the award reviewed, and sought relief No. 2 only- non promotion of the Employees to Executive Grade, after passing the EBExamination.
Held:
Unless the invalid part is inextricably interconnected with the valid thecourt is entitled to set aside or disregard the invalid part having the restintact, it is appropriate to sever what is invalid if the character of whatremains is unaffected.
Item 2 in the Arbitrator’s award is severable from the rest of the order.The Arbitrator has misdirected himself in coming to a finding that it wasamply clear that the examination that the workman had passed was notan Efficiency Bar.examination.
APPLICATION for writ of certiorari.
Cases referred to:
New Dimbulla's Company Ltd. v R.L. Brohier & others – 64 NLR 380
Shanmugam v Maskeliya Plantations Ltd., 1996 1 Sri LR 208 at 213
S.C. Application 561/74-SCM 21.10.75 -BASL News Digest SupplementSeptember 75 – June 1996.
Regina v Bournmouth Licensing Justices – 1963 1 WLR 320
Kent County Council v Kenworthy Investment (Kent) Ltd. 1971 AC 72
Potato Marketing Board v Merrik – 1958 2 QB 317
S.N. Vijithsingh for petitioner.
Gamini Senanayake for 1 st and 2nd respondents.
A. Gnanathasan, D.S.G. for 3rd respondent.
Cur.adv.vult.
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September 6, 2002JAYASINGHE, J.
This is an application for writ of certiorari to quash the award 01made in so far it relates to the findings in respect of dispute 2 to 4set out in P5.
Mr. Vijithsingh, Counsel for the petitioner states that the peti-tioner was interdicted on 03. 04. 1984 and he was prosecutedbefore the Magistrate Court of Fort and was discharged and there-after reinstated on 12.09. 1986. Upon the petitioner being reinstat-ed his increments promotions up to the Special Grade have beengranted, vide P1-B at page 6. He was appointed to the SpecialGrade on 01.01. 1989 and this fact has not been disputed by the 10respondents. Thereafter a dispute arose between the petitioner andrespondents regarding the petitioner’s increments and promotionand the said dispute was referred for arbitration for determination:
Whether non-granting of salary increment to the petitionerfor the years 1985, 1986 and 1987 is justified and whatrelief is he entitled to?
Whether non-promotion of the petitioner to ExecutiveGrade on his passing the efficiency Bar examination is jus-tified.
Whether the non-granting of the monthly risk allowance 20annual bonus and incentive allowance is justified and
Whether non provision of free text books to his three chil-dren and subsidized textiles is justified.
The Arbitrator after inquiry granted relief as at 1 of P5 but heldthat the petitioner is not entitled to reliefs as set out in 2,3, and 4.
The present application is to have the Arbitrator’s awardreviewed by this Court.
Mr. Vijithsingh for the petitioner however submitted before thisCourt that he is not asking relief as per 3 and 4 above but confin-ing himself to the question of non-promotion of the petitioner to the 30executive grade as at 2 above of P5.
Mr. Senanayake counsel for the respondent submitted that thepetitioner was prosecuted on two occasions viz
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On an allegation that he aided and abetted the disposal ofstolen property and;
Thereafter in a case of cheating in relation to a job agency.
That the petitioner has been discharged from proceedings inthe cheating case and convicted on his own plea where he wasaccused of aiding and abetting for the disposal of stolen property.
However we are unable to take cognizance of this fact for the 40reason that the respondents sought to reinstate the petitioner asfrom 12.09.1986 with back wages. The respondents did not seek toinstitute a domestic inquiry for the determination of the suitability ofretaining the petitioner in service. The respondents have also pro-moted the petitioner up to the Special Grade but refused promotionto the Executive Grade thereafter.
Mr. Vijithsingh states that the petitioner sat the examination atthe Sri Lanka Institute for Development Administration and there-after the examination conducted by the Eastern University of SriLanka which he successfully completed.so
Mr. G. Senanayake however stated that the respondents donot recognize the examination which the petitioner claims that hehas successfully completed.
We have considered the submissions of counsel. We find thatif the respondents found the petitioner suitable enough to be pro-moted up to the-Special Grade in the clerical service after rein-statement. Therefore there cannot be a serious impediment orobjection to him being promoted to Executive grade.
Respondents are unable to demonstrate before this Court anyreason why the petitioner ought not to have been promoted to the 6CExecutive Grade, except that he was under interdiction betweenthe years 1984 to 1986 and that he was convicted as stated above,which the respondent did not take cognizance of.
We are satisfied that there is some injustice that has occa-sioned to the petitioner and the inaction of the respondents to insti-tute disciplinary proceedings to ascertain the suitability of the peti-tioner to be promoted to the executive grade cannot in any waydeprive the petitioner of what is now due to him. We are of the view
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that this is a fit case for this Court to intervene. We do not how-
ever interfere with the findings of the Arbitrator in respect of disputeof 3 and 4 as Mr. Vijithsingh did not press for relief thereof.
We are of the view that the arbitrator has misdirected himselfin coming to a finding that it was “amply – clear that the examina-tions that the workman had passed was not an efficiency bar exam-ination.” Mr. Vijithsingh contended that the “Efficiency BarExamination” is for Public Servants in terms of section 15 of chap-ter 2 of the Establishment Code.
Mr. Vijithsingh then submitted that this Court is entitled toquash a part of the award which is erroneous and to that extent theaward is in excess of Jurisdiction. He relied on New Dimbulla’sCompany Ltd., v R.L. Brohier and others <1) where Weerasuriya, J.stated that “where an arbitrator, when giving his award, misdirectshimself in interpreting a previous award in a different case, the mis-direction would be an error of law on the face of the award and :would render such part of the award as is affected by the errorliable to be quashed by certiorari.” He also referred Halsbury'sAdministrative Law Vol I page 29 in chapter 26 “where it is pro-vided that an order or other instrument or an action may be partlyvalid and partly in valid. Unless the invalid part is inextricably inter-connected with the valid, the Court is entitled to set aside or disre-gard the invalid part leaving the rest intact….It may be appropriateto server what is invalid if the character of what remains is unaf-fected.”
In Shanmugam v Maskeliya Plantation Ltd.M where G.RS.deSilva, C J. had held that writ of certiorari will issue to quash thatpart of the award which relate to the appellant’s claim for extensionin service.
Mr. Vijithsingh also referred us to a case reported in the digestof judgments in BASL News<3> where it has been held that theSupreme Court was not exercising an appellate jurisdiction andcould therefore vary an Arbitrator’s award unless the defective partwas severable so that the remainder can be left intact. It was heldthat the Supreme Court cannot substitute its own order or refer theaward back with the direction as to the proper application of thelaw.
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In Regina v Bournmouth Licensing Justices (4J it was held that
“the order of certiorari should go to quash that part of
the order requiring the appellant to pay”
In Kent County Counsel v Kenworthy Investments (Kent)
LtdP>
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“Lord Reid and Lord Upjohn dissenting observed that “if con-dition (ii) were held ultra vires, it would be severable becauseit does not alter the character of the permission given. Themajority of their Lordships held that condition ii was ultra viresand therefore did not consider the severability of what is bad.
In Potato Marketing Board v Merricks ^l Devlin, J. observedthat “In all these cases the question to be asked is whether thebad part can be effectively severed from the good. I think thatthe demand relating to total arable acreage of the farm can bestruck out from the farm without altering the character of the 120rest of it”.
Even though these cases referred to above do not relate toarbitration proceedings by embording the principle that what is badcould be served from the rest of it can be done without altering thecharacter of the rest of it.
We have considered the submissions of counsel. We are ofthe view that item(2) referred to in the arbitrator’s award is sever-able from the rest of the order. We accordingly for reasons statedabove set aside item (2) of the award and direct the respondent toappoint the petitioner to the executive grade when the appointment 13cbecomes due.
Subject to above that part of the arbitrator’s award is setaside. No costs.
EDIRISURIYA, J. -I agree.
Item 2 of the award set aside.
Respondent directed to appoint the Petitioner to the ExecutiveGrade when appointment becomes due.