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v.FORBES AND ANOTHER
PERERA, J. ANDWIJETUNGE, J.
S.C. APPEAL 2/90.
CA APPLICATION 1658/84.
MAY 25TH 1993.
Certiorari and Mandamus – Arbitration award under Industrial Disputes Act -Statutory right to repudiate Award under s. 20(1) of the Industrial DisputesAct – Right to move for Certiorari without exhausting alternative remedies.
A party to an arbitration award under the Industrial Disputes Act is not requiredto exhaust other available remedies before he could challenge illegalities anderrors on the face of the record by an application for a writ of certiorari. Thisis so even though he had the right to repudiate the award under section 20(1) of the Industrial Disputes Act.
The difference between review as to the legality of the matter and an administrativeappeal on the facts must be borne in mind.
Delay in securing an effective other remedy has been considered unsatisfactory.The mere existence of some power to resist the binding effect on an unacceptable
Somasunderam Vanniasingham v. Forbes and Another
settlement order should not itself be hastly regarded as a satisfactory alternativeremedy to the Court’s discretionary powers of review. There is no rule requiringthe exhaustion of administrative remedies.
The case of Obeysekera v. Albert and others (1978 – 79) 2 Sri LR (CA) 220was wrongly decided as also were cases like £ S. Fernando v. United WorkersUnion et-al CA appl. 444/80 (CA Minutes of 17.5.86) and United Workers Unionv. W. H. Navaratne et-al CA Application No. 2260/80 CA Minutes of 7.5.86)and are not binding and should not be followed.
Per Bandaranayake J.
" As I have said there is no rule requiring alternative administrativeremedies to be first exhausted without which access to review is denied. A Courtis expected to satisfy itself that any administrative relief provided for by statuteis a satisfactory substitute to review before withholding relief by way of review.
Cases referred to :
Obeysekera v. Albert and others (1978 – 79) 2 Sri LR 220 (CA).
Baldwin & Francies Ltd. v. Patents Appeal Tribunal et-al (1959) 2 all ER433 (HL).
£ S. Fernando v. United Workers Union et-al, CA application 444/80 -CA Minutes of 17.5.1986.
United Workers Union v. W. H. Navaratne et-al, CA Application 2260/80CA Minutes of 7.5.1986.
ft. V. Patents Appeal Tribunal et-al, Exparte J. ft. Geigy, Societey Anonyme(1963) 1 all ER 85 (QBD).
Linus Silva v. University Council of Vidyodaya University (1961) 64 NLR114, 116, 117.
Colombo Commercial Co. v. Shanmugalingam 66 NLR 26.
Virakesari Ltd. v. P. O. Fernando 66 NLR 145.
APPEAL from judgment of the Court of Appeal.
Motilal Nehru, P.C. with S. Sivapathan watching the interests of the 2ndrespondent University of Jaffna, Sri Lanka.
Cur. adv. vult.
October 26. 1993.
Upon an oral application for leave to appeal on a question of law,leave was granted to the appellant by the Court of Appeal from itsorder dismissing the petitioners application for writs of Certiorari andMandamus to quash an order and award made by the arbitrator underthe provisions of the Industrial Disputes Act. The questions of lawdiscernible from the matters adverted to by Counsel before the Courtof Appeal and adopted by that Court are :
„ Is a party to an arbitration award under the IndustrialDisputes Act required to exhaust other available remedies before
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he could challenge illegalities and errors on the face of the recordby an application for a writ of Certiorari ;
(ii) Is the right to repudiate an Award available to a partyunder Section 20 (1) of the Industrial Disputes Act a remedyequally appropriate and expedient as a Writ of Certiorari quashingan Award would be.
The Minister of Labour by Order dated 17.7.81 referred thefollowing dispute for settlement by Arbitration to the 1st Respondent,viz; whether the Jaffna Campus of the University of Sri Lanka andits successor the University of Jaffna, Sri Lanka (2nd Respondent)is under obligation to employ Mr. S. Vanniasingham (Appellant) fromthe date of the takeover of the undergraduate department of theJaffna College by the Government for the purpose of establishingthe Jaffna Campus of the University of Sri Lanka.
If so (a) On what terms and conditions he should have beenemployed ;
(b) To what relief is he entitled?
After enquiry, the Award of the Arbitrator 1st Respondent waspublished on 23.4.84. The terms of the award in summary were :
(i) The Jaffna Campus and its successor were under noobligation to employ the applicant from date of takeover byGovernment in 1974 ; The Appellant had reached retiring age in1979.
(i) The 2nd respondent to make an exgratia payment ofRs. 10,000/- to the applicant.
The Appellant was dissatisfied with the award. He did not howeverexercise his statutory right to repudiate the award under Section 20(1) of the Industrial Disputes Act. Instead the appellant filed Writapplication before the Court of Appeal supported on 17.1.85 for awrit of Certiorari seeking to quash the award on the grounds of ultravires and error on the face of the record. The Court of Appeal isnow vested with jurisdiction in this area of the law by the Constitution- Article 140.
Somasunderam Vanniasingham v. Forbes and Another
Notice was issued returnable on 4.3.85. The 1st Respondent didnot appear on notice. The 2nd Respondent appeared and informedCourt it was not filing written objections. When the matter was takenup for support on 22/11/89, the 2nd Respondent took a preliminaryobjection that the appellant could not maintain an application for awrit of Certiorari without having first exhausted his statutory remedyof repudiation of the award after due notice afforded him by section20 (1) of the Industrial Disputes Act.
The Court of appeal upheld the preliminary objection and dismissedthe application. It is from this order of dismissal that the matters oflaw raised come before us.
It was argued on behalf of the Petitioner that in the ordinary coursethe Petitioner awaited the award. The award did not give him therelief sought regarding the dispute, ft merely provided for an ex gratiapayment. It was submitted the statutory provision in the Act enablingrepudiation merely means that the award is not binding on the partiesonce repudiated. But it leaves the award intact. Repudiation doesnot afford any alternative just and equitable relief. No further reliefis available from the Minister after an award. The Petitioner cannotrevive the dispute and it cannot be adjudicated upon again. ThePetitioner remains aggrieved. Counsel complained that the Court ofAppeal in the instant case adopted the finding of the Court of Appealin the case of Obeysekera vs. Albert and others 0> which held that" Certiorari being a discretionary remedy will not ordinarily be
grantedunless and until other remedies reasonably available and
equally appropriate have been exhausted ". The Court had not givenany reasons as to why it considered repudiation to be a satisfactoryalternate remedy to the remedy of review. The Court had failed toconsider this most important aspect whilst withholding the remedyof review. It was submitted that the case of Obeysekera vs. Albertet.al. (Supra) was wrongly decided in this respect. It was submittedthat that case was in respect of an application to quash an awardof an arbitrator. That Court had merely applied the minority dictumof Lord Denning in Baldwin & Francis Ltd: vs. Patents Appeal Tribunalet al (z which was the only case refered to in the argument. It maybe noted that the majority had found no error whereas Denning J.had found an error but refrained from giving discretionary relief forreasons, to wit : that even where there is an error on the face ofthe record (as was evident in that case) that when the party aggrievedhas another remedy open to him (in that case to sue for infringementof patent rights which at best is a futuristic event) the Court in itsdiscretion should refuse Certiorari. So it was that in the case of
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Obeysekera vs. Albert the Court of Appeal held that a party to anaward if aggrieved has to proceed under S 20 (1) to repudiate it(instead of seeking Certiorari). That Court has also stated that whenthe right of appealing to the Commissioner of Labour is available,a petitioner cannot seek a discretionary remedy like Certiorari. It isnot clear from the judgment, as to the circumstances or the provisionof law in that case which created a right of appeal to the Commis-sioner of labour. No right of appeal to the Commission of labour wasavailable in the instant case. It was submitted that the dicta of LordDenning should not have been extended. That dicta should have beenconfined to the facts of that case and should not be extended inany general way. Consequent to the misapplication of the dicta asaforesaid, a stream of cases had been wrongly decided by the SriLankan Courts without realising the difference between review as tothe legality of the matter and an administrative appeal on the facts.It had merely been assumed that repudiation was a satisfactoryremedy.
Petitioners Counsel further submitted that the decisions ofthe Court of Appeal in E. S. Fernando vs. United Workers Unionet at (3> of 17.5.86 and United Workers Union vs. W. H. Navaratneet al w which followed the decision in Obeysekera vs. Albert et alwas followed by the Court of Appeal in the instant case, the Court'sdecision that it was bound by those decisions was wrong in law andshould not be followed. It was submitted repudiation of the awardcould never be considered as being an alternative remedy to obtaininga Writ of Certiorari to quash the award.
R. V. Patents Appeal Tribunal et al, Ex parte J. R. Geigy, SocieteAnonyme (5) (Parker C. J., Winn And Lawlor J. J.) which held thatan order of Certiorari should issue as there was no satisfactoryalternative relief available, was itself a case which raised an issueunder Section 9 of the Patents Act as in the earlier case of Baldwinvs. Francis (supra). Their Lordships in R. V. Patents Appeal Tribunalwhilst differing from the opinion of Denning J had this to say aboutthe minority decision of Lord Denning :
there had been no argument placed before Lord Denningas to the principles on which the Court's discretion should beexercised apart from a general proposition made by Counsel thatin the case of an aggrieved person the order of Certiorari shouldbe made ;
Lord Denning gave another reason for his refusal toexercise the discretion of issuing writ namely that the party may
Somasunderam Vanniasingham v. Forbes and Another
have gone back to the tribunal and indicated that it had overlookedthe matter of making a special reference under Section 9 (1) ofthe Patents Act 1949 the material parts of which read ; " If in
consequence of investigations required under the
Actit appears to the Controller that an invention in respect
of which application for a patent has been made cannot beperformed without substantial risk of infringement of a claim ofany other patent he may direct that a reference to that otherpatent shall be inserted in the applicants complete specificationby way of notice to the public. ' (the application for Certiorari wasto have this reference inserted.)
the alternative remedy Lord Denning had in mind wasan infringement action if the time came where a person aggrievedcould find evidence of an infringement. The aggrieved would haveto await an infringement and obtain evidence of it. An aggrievedis not bound to wait. Accordingly the Court in R. V. Patents AppealTribunal Ex Parte J. R. Geigy (supra) did not apply the dicta ofLord Denning.
Counsel tor the Petitioner also referred us to Halsburys Laws ofEngland, 4th Edition, Vol 11 p. 805 : para 1528 : – “ There is norule in certiorari as there is in mandamus, that it will lie only wherethere is no other equally effective remedy, and provided the requisitegrounds exist, certiorari will lie although a right of appeal has beenconferred by statute. “
Professor Wade in his book Administrative Law 5th Edition p593states :
“ There is no rule requiring what is called the exhaustion of
administrative remediesone aspect of the rule of law
is that illegal administrative action can be challenged in the Courtas soon as it is taken or threatened. There is therefore no needto pursue any administrative procedure or appeal in order to seewhether the action in the end will be taken or not. An administrativeappeal on the merits is something quite different from judicialdetermination of the legality of the whole matter. This restates the
essential difference between review and appealThe Court
may (however) withhold discretionary remedies where the mostconvenient step is to appeal. Certiorari being a discretionaryremedy the Court may withhold it if it thinks fit. “
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S. M. Mehta in his book Indian Constitutional law 1990 Editionat page 334 has this to say : quote : " The existence of an alternativeremedy may be a ground for refusing a writ of certiorari, where thedefect of jurisdiction is not patent on the face of the record andfundamental rights are not involved. This is a rule of convenienceand not a rule of law and hence certiorari may be issued even whenan alternative remedy is available. Thus an alternative remedy thatis not speedy, effective or adequate is no ground for refusing a writof certiorari.
S. A. de Smith in ' Constitutional and Administrative Law 1 editedby Street and Brazier. 4th Edition p. 599 puts it this way : " Theprinciples governing the discretion of the Court to award certiorari
have partly crystallizedThe application for certiorari may
exceptionally be refused because there is a more appropriate alter-native remedy. “
Of interest is the Supreme Court decision in Linus Silva vs.University Council of Vidyodaya University <6). In that case theservices of the petitioner who was employed by the University(Professor and Head of the Department of Economics and BusinessAdministration at the University) were terminated by the Council. Thepetitioner made a direct application to the Supreme Court for a writof Certiorari to quash the order of termination. It was argued for theRespondents that a statutory remedy was available under Section31 B of the Industrial Disputs Act and that therefore Certiorari wasinapplicable. It was in this context that T. S. Fernando J held thatgoing before a Labour Tribunal and thereafter possibly appealing tothe Supreme Court was not an adequate remedy as the writ appli-cation already before Court was (by comparision) a more convenient,speedy and effective remedy. However the Privy Council – Vide(1964) 66 NLR 505, allowing an appeal from the Supreme Courtjudgment was of the view that as the dispute was upon an ordinarycontract between master and servant, there was no failure to complywith statutory provisions enforceable by certiorari and mandamus. Aremedy would be damages for wrongful dismissal/breach of contract.The grant of certiorari was therefore misconceived. The Privy Councildid not however touch on the aspect of how one should deal withalternative remedies contained in the Supreme Court judgment nodoubt as in their view it was no longer relevant. The Supreme Courtjudgment is mentioned to indicate consistency in requiring effectivesatisfactory alternative statutory remedies which has been the lawin Sri Lanka, if they were to take the place of review.
Somasunderam Vanniasirtgham v. Forbes and Another
It may be mentioned in passing that wherever there is an infringe-ment of a fundamental right, the Supreme Court is obliged to affordjust and equitable relief for such infringement even though there maybe other remedies available in public or private law as the right torelief is itself a fundamental right.
The instant case poses the question as to whether the right torepudiate an unacceptable award under Section 20 (1) of the IndustrialDisputes Act is in the nature of a sufficient administrative remedy.There has been no due repudiation of the award within time so thatthe award remains binding on the scheme. Repudiation results in theaward ceasing to bind the parties. Once repudiated the award nolonger regulates or determines the rights or duties of the parties inrespect of the dispute. But though rendered ineffective it remains partof the record. The dissatisfied party complains he has had no reliefin relation to the dispute. There is no other relief he can have accessto under the statute. In no sense therefore could it be said thatrepudiation of the award could have afforded him an equally appro-priate and effective remedy as the discretionary remedy of certiorariwhich could strike down the award if illegality is present. Theappellant complains of errors on the face of the award. The appellantseeks review of the award to correct those errors. There are no wordsin the statute suggesting exclusion of ordinary remedies either ex-pressly or by implication. In any case, review is a remedy within hisrights to seek. He challenges illegalities in the award. This he cando in the circumstances. The Court of Appeal should have enquiredinto his application and in the exercise of its discretion made an orderon the merits. This the Court failed to do.
On the other hand there may be instances where the law providesfor satisfactory relief under the statute. A Court may in the exerciseof its discretion withhold review in such situations. But it is the dutyof the Court to consider whether certiorari is more appropriate in thecircumstances.
Where overlapping remedies exist for identical purposes a questionmay arise as to whether the statutory remedy is exclusive orconcurrent. The language of the enactment must first be examined.If concurrent the Court's decision may be determined by decidingwhether the statutory remedy provides a sufficient satisfactory alter-native to the discretionary remedy by way of writ. As we have seenin the cases disussed, an alternative remedy may be available onlyupon the existence of other factors which are hard to find and difficult• to establish which then does not render that remedy satisfactory.
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Delay in securing an effective other remedy has been consideredunsatisfactory. The mere existence of some power to resist the bindingeffect of an unacceptable settlement order should not of itself behastily regarded as a satisfactory alternative remedy to the Court'sdiscretionary powers of review. Therefore the fact that the appellantdid not repudiate the award does not make a difference. It may bethat even though the statute provides for an administrative appealeither to an administrative tribunal or a Minister, the Court may notregard such an arrangement as impliedly excluding review if theapplicant is entitled as a matter of law to have the order quashedas it is pointless then to have him pursue an administrative appealon the merits. There is thus no rule requiring the exhaustion ofadministrative remedies. A statutory remedy may be for a differentpurpose being usually an appeal on the merits whereas the ordinarydiscretionary remedy of review is for prevention of illegality. Therecould be situations where rights of appeal in a statute may legitimatelyrestrict review by the Court (ie) where the language of the statuteexpressly or impliedly excludes recourse to ordinary discretionaryremedies (eg) where a power is expressly conferred by statute ona named authority or the statutory remedy is the only available remedyas in tax matters. Upon an examination of the reported judgementof the Court of Appeal in the case of Obeysekera vs. Albert et. al.
(CA) aforesaid which held that Certiorari will not be granteduntil
other remedies available and equally appropriate have been ex-hausted it is found that there has been no examination of the natureof the power of repudiation or its consequences and no evaluationof its effectiveness as an alternate satisfactory remedy to that ofreview. That decision does not set out the law correctly in this areaand should not be followed. As I have said there is no rule requiringalternative administrative remedies to be first exhausted without whichaccess to review is denied. A Court is expected to satisfy itself thatany administrative relief provided for by statute is a satisfactorysubstitute to review before withholding relief by way of review. Thosedecisions adverted to in the judgement which followed the decisionin Obeysekera vs. Albert et al. in this area of law have also beenwrongly decided and should not be regarded (as was done in theinstant case) as having a binding effect on the Court of Appeal. Theyshould no longer be followed.
In this area of the law, where there is no illegality, the Court shouldfirst look into the question whether a statute providing for alternativeremedies expressly or by necessary implication excludes judicialreview. If not, where remedies overlap, the Court should considerwhether the statutory alternative remedy is satisfactory in all the.
Ekanayake, v. Gunatilleke, Superintendent of Police, Maho and Others
circumstances If not, the Court is entitled to review the matter
in the exercise of its jurisdiction. Of course if there is an illegalitythere is no question but that the Court can exercise its powers ofreview. Vide Colombo Commercial Co. vs. Shanmugalingam CT,Virakesari Ltd vs. P. O. Fernando (8).
The appeal is allowed. The order of the Court of Appeal dated05/12/89 upholding the preliminary objection taken on behalf of the2nd respondent and dismissing the application before it with costsis set aside. The Court of Appeal is directed to proceed to enquiryinto the application of the Applicant and decide the matter on itsmerits. No costs.
P. R. P. PERERA, J. – I agree.
WIJETUNGA, J. – I agree.