045-NLR-NLR-V-73-THE-EKSATH-ENGINERU-SAHA-SAMANYA-KAMKARU-SAMITHIYA-Petitioner-and-S.-C.-S.-DE.pdf
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SAMERAH'ICXRAME, J,—Eksalh Engintru Saha Samanya
Kamkaru Samithiya t>. De Silva
1969Present:Samerawickrame, J., and
Pandita-Gunawardene, J.
THE EKSATH ENGINERU SAHA SAMANYA KAMKARUSAMITHIYA, Petitioner, and S. C. S. DE SILVA et al.,Respondents
S. C. 477J63—Application for a Mandate in the nature ofa Writ of Mandamus
Industrial dispute—Award made by an Industrial Court—Quashing of it in Certiorariproceedings—Power of Industrial Court to resume hearing of the dispute—Effect of expiry of period of appointment of a member of the Court—IndustrialDisputes Act, ss. 22 (2), 31 (2).
Where an order of on inferior tribunal is quashed by (ho Supremo Court inCertiorari proceedings on a ground which does not deal with the merits of thecase, the inferior tribunal has jurisdiction to re-liear the cose. But if tho orderwas made by an Industrial Court, the proviso to section 22 (2) of the IndustrialDisputes Act does not enablo such re-hearing if tho members of tho panel frontwhich the Industrial Court was constituted ceased to bo members of tho paneleither during the pendency of the Certiorari proceedings or thereafter.
Application
for a writ of mandamus.
Nimal Senanayake, with Bala Nadarajah and Miss Adela P. Abeyralne,for tho petitioner (tho union).
V. Perera, Q.C., with Lakshman Kadirgamar, for the 4th respondent(the employer).
Cur. adv. vult.
December 19, 1969. Samerawickbajie, J.—
The petitioner makes this application for a writ of mandamus orderingtho 1st, 2nd and 3rd respondents or in tho alternative the 1st and 2ndrespondents to function as an Industrial Court and to make an awardor take a decision on matters referred to them by order of the Minister ofLabour. The 1st, 2nd and 3rd respondents had made an award inrespect of disputes between the employees of the 4th respondent who aremembers of the petitioner-union and tho 4th respondent. Upon anapplication made by the 4th respondent this Court issued a writ ofcertiorari quashing tho decision in the award on one dispute on thoground of an error of law in that there was a failure to consider anddecide a crucial question that arose. Weerasooriya, S.P. J., who deliveredthe judgment proceeded to say, “ For the reasons I have given, I quashtho finding of the Industrial Court that the dismissals of tho twenty-threeworkmen are unjustified, and so much of the award as directs the petitionerto give the dismissed workmen suitable employment, if they so desire,as from the date specified and to pay each of them a sum of Rs. 300 as
SAiEERAYVICKRAME, J.—Eksath Engine™ Saha Samanya
Kamtcaru Samithiya V. De Silva
261
compensation. As the present application is only for a writ of certiorariand no application has been made for a writ of mandamus to the IndustrialCourt to determine afresh according to law the dispute relating to thedisciplinary action taken against these workmen, I leave it to therespective parties to consider what further legal action, if any, should betaken in consequence of this order.”
The petitioner thereafter applied to the 1st, 2nd and 3rd respondentsto determine afresh the dispute in regard to the dismissals of thetwenty-threo workmen but they refused to do so on two grounds. Theyheld that having made an award each of them was functus officio.
In their award they had made decisions on all the disputes referred tothem though in respect of this dispute they had committed the errorof failing to consider and determine a question the answer to which shouldhave formed one of the bases of their decision. Assuming that thereis a category of omissions or errors that may be corrected in an awardby the person or persons making it, this was not such an error. Ifthereforo an application had been made to them apart from anyintervention by a higher court to correct this error in the award theywould have been correct in holding that they were each of them, functusofficio. But where the decision was set aside on an application for a writof certiorari on the ground on which it was so set aside a duty aroseto them to re-hear the matter on the application by the petitioner. InSaltar Sahib v. State of Madras 1952 A.I.R. Madras 605 (cited in 72C.L.W. at page 81), Rajamannar, C.J. said, “ We have no doubt whateverin the matter that when an order of the inferior tribunal on an applicationproperly made to them is quashed by this Court by a Writ of Certiorari,on any ground which does not deal with the merits of the case, it is notonly permissible, but it is also incumbent on the inferior tribunal to takeup the application and re-hear the same.” The first ground on whichthe 1st, 2nd and 3rd respondents declined jurisdiction is not, in my view,valid.
The 1st, 2nd and 3rd respondents also held that they were preventedfrom exercising jurisdiction by reason of the fact that the 3rd respondenthad ceased to be a member of the panel from which Industrial Courtsmay be constituted. It was the position of the petitioner that the 3rdrespondent continued to hold office by reason of the proviso to section22 (2). The proviso states :—
" Provided that where any such person is on the date of expiry of hisperiod of appointment functioning as a member of an industrial courtwhich is conducting an inquiry under this Act, he shall continue to holdoffice until that inquiry is concluded and a decision taken or an awardis made.”
The award was made by these respondents on 17th Xovembcr, 1960.The 3rd respondent’s period of appointment expired on 3rd March, 19G2,and the award of these respondents was quashed on 30th March, 1962.While I am of the view that upon the quasliing of the a-warda duty would
2G2
Gunasckcra v. Wctrakoon
have devolved on the 3rd respondent along with the 1st and 2ndrespondents to re-hcar the matter if he was qualified to do so, I am unableto take the view that after these respondents had made their awardon the 17th of November 19G0, they continued to conduct an inquiryinto this matter .until the 3rd of March 19G2. I think that the provisionin the proviso contemplates the factual conducting of an inquiry and the3rd respondent was not doing that at the expiry of his period ofappointment. The 3rd respondent did not, therefore, in my view,continue to hold office by reason of the proviso to s. 22 (2).
It was the further contention of the petitioner that even if the 3rdrespondent had ceased to be qualified to be a member of the Courtthere was a duty on the 1st and 2nd respondents to rc-hear the matterand reliance was made on s. 31 (1) which empowers a court to actnotwithstanding a vacancy. It is unnecessary to decide the validityof this contention for the petit ioner has a more serious difficulty in its wa v.Learned counsel for the respondent brought to our notice the fact thatabout six months before the hearing of the present application the 1stand 2nd respondents, too ceased to be on the panel. He submittedtherefore that mandamus should not therefore issue ordering them tofunction as an Industrial Court as they were now not qualified to do so.
I think there is substance in this submission. Parties obviously cannotbo ordered to do what they are not qualified to do and are thereforeunable to do. Lex non cogit ad impossibilia. The application is thereforedismissed but without costs.
Pandit a- G una wab de.e, J.—I a gree.
Application dismissed.