044-NLR-NLR-V-79-2-TISSA-BANDARA-RANDENIYA-and-THE-BOARD-OF-DIRECTORS-OF-THE-CO-OPERATIVE-W.pdf
TJ-J AM OTHER All. J.—Raudemya v. C. W.E.
30H
1978 Prevent: Thamotheram,. J., Malcolm Perera, J.
and Walpita, 3.
TISSA BANDARA RAN DENI Y Aand
THE BOARD OF DIRECTORS OF THE CO-OPERATIVEWHOLESALE ESTABLISHMENT, and ANOTHERS. C. Application No. 42/78
Writs ojf Mandamus and Prohibition—Application by employee of Co-operative Wholesale Establishment—Disciplinary proceedingspending against such employee—Whether dispute within themeaning of section 26 of Co-operative Wholesale EstablishmentAct.
u Section 26 of the Co-operative Wholesale Establishment Act(Cap. 126) which requires a dispute, inter alia, between the Boardand an employee to be referred to arbitration has no applicationwhere a charge sheet has been served on an employee and adomestic inquiry commenced with a view to taking disciplinaryaction.
A. pplication for Writs of Mandamus and Prohibition.
Nimal Scnanayake, for the petitioner.
M. Mustapha, Deputy Director of Public Prosecutions, for
the 1st respondent.
Cur. adv. vult
July 17, 1978. Thamotheram, J.
This is an application for the issue of a mandate in the natureof a writ of mandamus and £or a writ of prohibition.
The petitioner is one T. B. Randeniya who was the RegionalManager, Co-operative Wholesale Establishment, Kurunegala
Region.
The respondents are (1) The Board of Directors of theCo-operative Wholesale Establishment, Union Place, Colombo,and (2) M. A. R. Cooray, Inquiring Officer.
304
THAMOTHER/UI, J.—Ra.iueniya v. C.W.E.
The 1st respondent served on the petitioner a letter of inter-diction dated 27.6.77. This was done in pursuance of an auditreport dated 25th day of April, 1977, relating to the functioningof the Co-operative Wholesale Establishment of which the peti-tioner was the Regional''Manager. The Government AuditSuperintendent said in the concluding paragraphs of his report ;
“ It will be observed from the above mentioned report thatMr. T. B. Randeniya, Regional Manager, Kurunegala, hadcommitted several irregularities some of which are of a criminalnature involving fraud and forgery. The only inference thatcan be drawn from the fraudulent claims that cowpeas had beenpurchased at very much less cost than what had been claimed.These irregularities are of a serious nature and would warrantMr. Randeniya’s immediate interdiction.
In view of the seriousness of these irregularities I wouldsuggest that this matter be handed over to the C.I.D. for furtherinvestigation. ”
The 1st respondent served a charge sheet on the petitioner.An inquiry headed by one Mr. W. M. A. Warnasuriya wascommenced on 17.11.77. It was terminated on the orders of theChairman of the Board of Directors of the Co-operative Whole-sales Establishment. According to the statements of objectionsof the 1st respondent this was done as he was not satisfied thatthe inquiry was properly conducted in that no proper recordwas kept of the proceedings.
The petitioner by his letter through his Proctor called uponthe 1st respondent to refer the matter in dispute to Arbitrationin terms of section 26 of the Co-operative Wholesale Establish-ment Act. The petitioner nominated his Arbitrator and calledupon the 1st respondent to nominate an Arbitrator in terms ofsection 27 of the C.W.E. Act.
The 1st respondent directed a fresh inquiry on the samecharge sheet on 25th January, 1978. On that date the petitionerfound that the Officer entrusted with the inquiry was the 2ndrespondent.
The petitioner prayed that (a) a writ of prohibition be issuedon the 1st and 2nd respondents to refrain from proceeding withthe inquiry into the charges set out in the charge sheet dated 7thOctober, 1977, or making any determination or taking any furtheraction thereon.
(b) That a writ of Mandamus be issued on the respondent torefer the matters in dispute to Arbitration and to appoint anArbitrator in terms of sections 26 and 27 of the C.W.E. Act.
United National Party v. Com. Oen. of Inland Reveue
305
Mr. Mustapha, D. D. P. P., took many preliminary objectionswhich are not without substance. The application however canbe disposed of on what seems to be ap obvious pcint. Theemployer had served a charge sheet on an employee with theview to taking disciplinary proceedings. The two inquiries heordered were in the nature of domestic inquiries with a viewto taking disciplinary action against him. Any action by theemployee could be taken before a Labour Tribunal if there wasa just cause for complaint.
It seems singularly inappropriate to style such a situation asa dispute between an employer and employee which could beresolved by Arbitration by two nominees of either side.
Section 26 of the C.W.E. Act (Cap. 126) says:
“ Where any dispute arises between (a) TVie Board and anyCo-operative Society ; or (b) The Board and any of its employeeswhether past or present, such dispute shall be referred to Arbi-tration. ”
There is provision for nomination of Arbitrators, selectionof Umpire and a declaration and that the award shallbe final. How can one fit in a contemplated disciplinary actioninto this set up. In my view there is no dispute as contemplatedby section 26. Therefore the application must fail. The appli-cation is dismissed with costs.
Malcolm Perera, J.—I agree.
Walpita, J.—I agree.
Application dismissed.