VIRAKESARI LTD., Petitioner, and P. O. FERNANDO and 4 others Respondents

033-NLR-NLR-V-66-VIRAKESARI-LTD.-Petitioner-and-P.-O.-FERNANDO-and-4-others-Respondents.pdf


Virakesari Ltd. v. Fernando
145
1963Present: Weerasoorlya, S.P.J.VIRAKESARI LTD., Petitioner, and P. 0. FERNANDO and 4 others,RespondentsS. C. 567/61—Application for a Mandate in the nature of a Writ of
Certiorari
Certiorari—“ Error of law appearing on the face of the record ”—Legal position asto what constitutes “ the record ”—Delay as a ground for refusal of writ—Scope—Industrial dispute—“ Lock-out ”—Industrial Disputes Act (Cap. 131),8s. 3 (1) (c), 4 (2)—Trade Unions Ordinance, s. 2.
In an application for a writ of certiorari to quash an award of an IndustrialCourt in an industrial dispute which was referred for settlement under section4 (2) of the Industrial Disputes Act—
Held : (i) The order of an inferior tribunal having a duty to act judiciallyin determining the rights of parties is liable to be quashed by a writ of certiorarifor an error of law on the face of the record. In. this connection, the “ record ”includes not only the formal order, but also all the documents which form thebasis of the decision.
The omission of an inferior tribunal to take into consideration a relevantdocument forming part of the record, or a misconstruction of such document,is an error of law appearing on the face of the record.
An application for a writ of certiorari will not be refused on the groundof delay if the delay is not attributable to the petitioner. Even if the positionbe otherwise, where notice on the respondent has already issued and at thesubsequent hearing of the application the petitioner, as a party aggrieved,is able to establish an error of law on the face of the record, and there is noother remedy, certiorari should be granted ex debito justitiae.
Application for a writ of certiorari to quash an award given by anIndustrial Court in respect of an industrial dispute in which the pointsin dispute were (1) whether the non-employment of two employees ina printing and publishing establishment (Virakesari Ltd.) was justified,and (2) whether a stoppage of work at the establishment was a strike ora lock-out.
If. V. Per era, Q.C., with S. J. Kadirgamar, Izadeen Mohamed andH. D. Tambiah, for Petitioner.
Colvin B. de Silva, with P. B. Tampoe, P. K. Liyanags, Prins Baja-sooriya, U. C. B. Batnayake and B. Weerakoon, for 2nd and 3rd respondents.
No appearance for 1st, 4th and 5th respondents.
Cur. adv. vult.
lxvi—7
2—S 19077—1,855 (7/64)
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WEERASOORIYA, S.P.J.—Virakesari Ltd. v. Fernando
December 20, 1963. Weebasooriya, S.P.J.—
This is an application for a mandate in the nature of a writ of certiorarito quash an award made by the 1st respondent in his capacity as anIndustrial Court constituted under the provisions of the IndustrialDisputes Act (Cap. 131).
The petitioner is a limited liability company and was at the relevanttime carrying on the business of printing and publishing a Tamil dailynewspaper called the Virakesari. Among the employees of the.petitioner in the printing section were A. Pius Fernando and Z. A. M.Hussain, an Assistant News Editor and a Cashier respectively. Theformer was the Secretary of the Virakesari branch of the Ceylon MercantileUnion, the 2nd respondent, while the latter was the President of thebranch. There was also a Virakesari branch of the All-Ceylon UnitedPrinting Employees’ Union, the 3rd respondent. The majority of theemployees of the petitioner were members of one branch or the otherof these two Unions.
For some time prior to the 1st February, 1960, the employees hadbeen agitating for the payment of annual increments, but as there wasno definite response from the petitioner to their demands, it was decidedat a meeting of the executive committee of the branch of the 2nd respon-dent Union held on the 31st January, 1960, to organise a “go-slow”at the petitioner’s place of business. As a result of the activities ofPius Fernando and Hussain in that connection, the management ofthe petitioner-Company came to investigate allegations against themof intimidation of Mr. Venkataraman the News Editor of the Virakesari,and instigating the employees to go slow with their work. After holdinga preliminary inquiry the management framed charges of misconductagainst them on the 8th February, 1960, and also interdicted thempending further inquiry. On the 9th February, I960, those employeesof the petitioner who were members of the 2nd and 3rd respondent-Unions went on strike as a protest against the interdiction.
On the 15th February, 1960, while the strike was on, Mr. Venkataramanwas waylaid and assaulted by three of the workmen on strike. Theworkmen concerned were later dismissed by the petitioner. Accordingto the management, the further inquiry into the charges against PiusFernando and Hussain could not be proceeded with owing to the strike.The strikers, on the other hand, were not prepared to call off the strikeuntil the interdiction was withdrawn. The Commissioner of Laboursought to end the deadlock by making an order on the 21st February,1960, under section 3 (1) (c) of the Industrial Disputes Act referringto an Authorised Officer for settlement by conciliation the questionwhether the two interdicted employees were guilty of the charges laidagainst them and what punishment should be imposed on, or reliefgranted to, them. This reference was made without the concurrenceof the petitioner company, which had been urging the authorities to
WEERASOOR1YA, S.P.J.—ViraJcesari Ltd. v. Fernando
147
refer the dispute to an Industrial Court for settlement. The petitioner-company nevertheless took part in the inquiry held by the AuthorisedOfficer, but claimed it did so without prejudice to its rights to decide,after an independent inquiry into the conduct of Pius Fernando andHussain, what action should be taken against them. In view of thereference to the Authorised Officer the strike was called off on the 28thFebruary, I960.
The Authorised Officer, after a lengthy inquiry at which evidencewas led, held that Pius Fernando had intimidated Mr. Venkataramanon the 1st February, 1960, and that Pius Fernando and Hussain had,on the 1st and 2nd February, 1960, instigated other employees to goslow or not to attend to certain types of work which they had beencalled upon by the management of the petitioner-Company to do. TheAuthorised Officer recommended that the punishment to be awardedto Pius Fernando and Hussain for the acts of misconduct which heheld they had, committed was that they should be suspended fromemployment for a period of three months from the 9th February to the8th May, 1960, and that during the period of suspension Pius Fernandobe paid half, and Hussain one-third, their respective normal salaries. Healso recommended. that they should give a written acknowledgmentthat what they did was wrong and an undertaking not to indulge insuch conduct again, and that Pius Fernando should, in addition, tenderan apology to Mr. Venkataraman. These recommendations of theAuthorised Officer were accepted by the 2nd and 3rd respondent-Unions,but not by the petitioner-Company which rejected them on the ground-that the punishment recommended was disproportionate to the acts ofmisconduct which Pius Fernando and Hussain were found guilty of.
On the 22nd March, 1960, while the inquiry before the AuthorisedOfficer was pending, there appeared in the Virakesari of that date apublication of which the following is an English translation :
“ Great Injustice
The public are informed that the proprietors of the Virakesari aregiving immense trouble to the employees by withholding the monthlyadvances which they ought to give. ”
In connection with this publication, which obviously was unauthorised,one Maharoof, an employee in the printing section who was in chargeof composition, was called upon by the petitioner-Company to showcause why “ serious disciplinary action ” should not be taken against him.
As a result of the rejection by the petitioner' Company of the recommen-dations of the Authorised Officer, the members of the 2nd and 3rdrespondent-Unions who were employees of the petitioner Company againstruck work. This strike actually commenced on the 23rd May, 1960,at 4 p.m., but at 5.10 p.m. the General Secretary of the 2nd respondent-Union informed the management of the petitioner Company that the
148
WEERASOORIYA S.P.J.—Virakesari Ltd. v. Fernando
strike had mistakenly commenced on that day and requested the manage-ment to allow the strikers to resume work. The General Secretary alsoinformed the management at the same time that the strike would commenceat 4 p.m. on the 24th May, 1960. The management acceded to therequest that the strikers should be allowed to resume work on the23rd May, and the night shift worked as usual on that day. But on themorning of the 24th May, 1960, when the employees of the petitionerreported for duty, they found the gates locked. None of them, exceptfor three watchers, were allowed inside the premises. The reason forthe closure of the premises is contained in a complaint made byMr. Pais, the Administrative Secretary of the petitioner Company, at the.Grandpass Police Station at 7.55 a.m. on the 24th May, viz., thatalthough the management had no objection on the evening of the 23rdMay to the strikers resuming work, it had since learnt that they intended,after coming to work on the 24th May, to damage the machines beforethey went on strike again at 4 p.m. on that day as previously notified.
On the 26th of May, 1960, while the premises were still closed, thepetitioner Company sent a letter to each of its employees appealing tothem “ to agree to resume work immediately and not to strike ” andto have the. matters in difference referred to an Industrial Court forsettlement.
With reference to this letter the 2nd and 3rd respondent-Unions senta joint communication to the Commissioner of Labour on the 28th May,1960, taking up the position that the closing of the premises of thepetitioner-Company on the morning of the 24th May was a lock-out,that the lock-out still continued and that the conditions laid down inthe Company’s letter of the 26th May for resumption of work by thestrikers were “ completely unacceptable”.
Thereafter some of the employees came back to work and the petitionerwas able to publish an issue of the Virakesari on the 31st May, 1960.On the 1st June, 1960, bombs were thrown at the Works Manager andtwo other employees, who sustained injuries. As a result of this inci-dent the publication of the paper again stopped as from the 3rd June, 1960.
On the 11th June, 1960, the petitioner-Company, after further inquiryinto the alleged misconduct of Pius Fernando and Hussain, terminatedtheir services with effect from the 8th February, 1960, being the date. on which they were interdicted from work. On the same day (11thJune, 1960), a second letter in terms more peremptory than the letterof the 26th May was sent by the petitioner-Company to all the employeescalling upon them, on pain of dismissal, to report for work on or beforethe 15th June, 1960, subject, however, to their agreeing to certain con-ditions specified therein. As the employees to whom the letter wasaddressed were not agreeable to these conditions they did not returnto work, and the premises of the petitioner-Company remained closeduntil the 11th July, 1960, when publication of the Virakesari was resumed
WEBRASOORXYA, S.P.J.—Virakesari Ltd. v. Fernando
149
after new hands had been engaged by the petitioner. This move appearsto have induced some of the old employees to decide to go back to work.Presumably they agreed to abide by the terms set out in the letters ofthe 26th May and the 11th June, 1960.
On the 16th August, 1960, the Minister of Labour and NationalisedServices, by Order made under section 4 (2) of the Industrial DisputesAct, referred the dispute between the petitioner-Company and the 2ndand 3rd respondent-Unions to the 1st respondent for settlement. Fivepoints in dispute are set out in the order of reference. The award, ofthe 1st respondent on the third point in dispute was in favour of thepetitioner. The fifth point in dispute was whether the non-paymentof the annual increments to the employees from the 1st January, 1958,was justified, and to what relief they were entitled. f The award of the1st respondent on this dispute, which was the cause of all the trouble thatsubsequently arose between the petitioner-Company and its employees,was also in favour of the petitioner. On the fourth point in disputethe award was in some respects adverse to the petitioner. But at thehearing before me the objections to this part of the award which had beentaken in the petition were abandoned by Mr. H. V. Perera who appearedfor the petitioner. The first and second points in dispute were—
“(1) whether the non-employment of Messrs A. Pius Fernando-and Z. A. M. Hussain is justified and to what relief they areentitled ;
whether the stoppage of work at the Virakesari Press whichcommenced on the 24th May, 1960, was a strike or a lock-outand to what relief the employees were entitled. ”
The events which gave rise to these two points in dispute are as out-lined in the preceding paragraphs. At the inquiry before the 1st respon-dent it was agreed between the parties that no oral evidence would, beled on the first point in dispute, and that he would arrive at his findingafter reading the evidence recorded by the Authorised Officer and hisrecommendations.
The report of the Authorised Officer shows that the charges againstPius Fernando and Hussain which he investigated were that PiusFernando intimidated Mr. Venkataraman on the 1st February, 1960,and that Pius Fernando and Hussain instigated other employees to goslow and not do certain types of work. As stated earlier, the AuthorisedOfficer held that the charges were proved. His findings appear to beamply borne out by the evidence.
The 1st respondent held that the only charge established against Pius-Fernando and Hussain was that they had threatened Venkataramanon the 1st February, 1960. He expressed the view that in all the circum-stances a warning to them by the management not to act similarly in thefuture would have been a sufficient punishment. Accordingly, he held
2*—B. 19077 {7/64)
150
WEERASOORIYA, S.P.J.— Virakesan Ltd. v. Fernanda
that Pius Fernando and Hussain should be re-instated within one monthof the publication of the award, and also that each of them was entitledto sis months’ wages. Learned counsel for the petitioner complainedthat in arriving at these findings the 1st respondent had entirely over-looked the evidence recorded by the Authorised Officer on the chargeagainst Pius Fernando and Hussain of having instigated the otheremployees to go slow with their work. From the following observationsof the 1st respondent contained in this part of the award it would seemthat the complaint of learned counsel is well-founded:
£t The evidence before the Authorised Officer was only with regardto intimidation. Apparently there was no evidence whatever withregard to the other charges.”
At the inquiry held by the Authorised Officer, both Pius Fernandoand Hussain admitted in their evidence that on the 1st and 2nd February,1960, they did go about the premises of the petitioner-Companyduring working hours instigating the other employees to go slow withtheir work. Their excuse was that they did so in their capacity as officialsof the 2nd respondent-TJnion. There was also evidence of instigationfrom at least one other witness which the Authorised Officer accepted.No reason appears for the 1st respondent to have disregarded this evidenceexcept that it was through inadvertence. Had he considered suchevidence, his direction that these two employees should be re-instatedand also given six months’ wages may well have been different, especiallyif he took the view—as it was open to him to do—that the charge ofhaving instigated a go-slow, which is generally regarded as an unfairlabour practice, was the more serious of the two charges.
It is well settled that the order of an inferior tribunal having a dutyto act judicially in determining the rights of parties is liable to be quashedby writ of certiorari for an error of law appearing on the face of the^cord. But the legal position as to what constitutes the record of aninferior tribunal is uncertain. The question came up before the Houseof Lords in Baldwin & Francis Ltd. v. Patents Appeal Tribunal andOthers1 but was not decided. Lord Denning, one of the membersof the House who took part in the decision of that case, observed, how-ever, that the Courts have proceeded on the footing that “ there shouldbe included in the record, not only the formal order, but all those docu-ments which appear therefrom to be the basis of the decision—that onwhich it is grounded In that connection he referred to the well knowncase of R. v. Northumberland Compensation Appeal Tribunal, Ex parteShaw 2 and also Re Gilmore's Application 2 The evidence taken at theinquiry held by the Authorised Officer is a document forming part of therecord, for the award on the first point in dispute refers to, andpurports to be made on the basis of, such evidence. The omission of the
s(2959) 2 A. E. B. 433.2 (1952) 1 A. E. R. 122.
3 (1957) 1 A. E. R. 796.
WEERASOORIYA, S.P.J.—Virakesari Ltd. v. Fernando
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1st respondent to take into consideration the evidence touching thecharge of having instigated a go-slow is, in my opinion, a misdirectionamounting to an error of law on the face of the record-
Learned counsel for the 2nd and 3rd respondent-Unions raised thepoint that even if there is a misdirection as held by me, this being anapplication for a writ of certiorari the grant of which is discretionary,the Court would not interfere, having regard to the time that has elapsedsince the making of the award. I do not think – that the delay whichhas occurred in this case is attributable to the petitioner. But evenhad the position been otherwise, where notice on the respondent hasalready issued and at the subsequent hearing of the application the peti-tioner, as a party aggrieved, is able to establish an error of law on theface of the record, and there is no other remedy, certiorari should begranted ex debito justitiae—See R. v. Manchester Legal Aid CommitteeEx parte Brand <fc Co. Ltd.1 There can be no question that the petitionerin the present application is a party aggrieved. I therefore quash somuch of the award of the 1st respondent as directs the re-instatement ofPius Fernando and Hussain and that they be paid six months’ wages.
The next question is whether the award on the second point in disputeshould be quashed for any error of law on the face of the record. The1st respondent held that the stoppage of work at the Virakesari Presscommencing on the 24th May, 1960, was a lock-out and not a strike, andthat the employees affected by the lock-out should be re-instated withinone month of the publication of the award and each of them paid “ sixmonths’ gross wages Mr. H. V. Perera submitted that this portion ofthe award too should be quashed for the following misdirectionsamounting to errors of law—
misdirection as to a conference with the parties in dispute which
the Minister of Labour and Nationalised Services was allegedto have summoned for the morning of the 24th May, 1960 ;
misdirection as to the proper construction of the letter dated the
26th May, 1960, sent by the petitioner to the employees ;^
misdirection as to the proper construction of the letter dated the
11th June, 1960, sent by the petitioner to the employees.
In discussing the abortive strike which commenced on the afternoonof the 23rd May, 1960, the 1st respondent stated that it was called offsoon afterwards in view of a conference of representatives of the 2nd and3rd respondent-Unions and the management of the petitioner-Companywhich the Minister had summoned for the morning of the 24th May inorder that he might explore the possibility of a settlement of the mattersin dispute. The 1st respondent also stated :
“ Instead of attending this conference the management closed downthe factory on the 24th morning, and therefore no amicable settlement
1 (1952) 1 A. E. R. 480, at 490.
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WEERASOOR3.YA, S.P.J.— Virakesari Ltd. v. Fernando
was possible. Although, the prospect of a settlement was very dim,yet the possibility of a settlement cannot (sic) be ruled out altogether if,as requested by the Minister, there was a conference where the Ministerhimself would have tried to effect a settlement.”
Mr. H. Y. Perera submitted on the strength of certain documents annexedto the petitioner’s application for a writ that the “ conference ” was notone to which all the parties had been summoned to attend, but was in thenature of an interview given by the Minister to the management of thepetitioner-Company, which had been pressing for a reference of the mattersin dispute to the decision of an Industrial Court. Mr. Perera also sub-mitted that these documents refute the suggestion of evasion on the partof the petitioner-Company which is implied in the 1st respondent’sobservation that “ instead of attending this conference the managementclosed down the factory ” on the 24th May, and they show that thepetitioner-Company, through its representatives, did meet the Minister asarranged on the morning of the 24th May, 1960, but failed to convincehim of the need for a reference of the dispute to an Industrial Court atthat stage.
The 1st respondent rejected the contention of the petitioner that thereason for the stoppage of work on the morning of the 24th May, 1960,was a genuine apprehension that certain of the employees intended todamage the machinery if they were allowed access to the petitioner’spremises. He held that the stoppage of work on that day amounted toa lock-out. This finding, no doubt, proceeded from the views he hadalready formed of the supposed “ conference ” and the petitioner-Company’sattitude of evasion towards it. The documents to which Mr. H. V.Perera referred, taken by themselves, point to those views being erroneous.The question, however, is whether they are not supported by the evidenceadduced at the inquiry held by the 1st respondent. No submission wasmade by Mr. Perera that they are not, nor was the nature and contentof such evidence adverted to at the hearing before me. At any rate, noerror of law on the face of the record appears to be disclosed in respect ofthe 1st respondent’s finding that the stoppage of work on the morning ofthe 24th May, 1960, amounted to a lock-out.
The 1st respondent held, further, that the continued stoppage of workafter the 24th May also amounted to a lock-out. The reasons for thisfinding are contained in the following part of the award :
“ The letter sent out on the 26th May to the employees clearly indi-cated that they would be taken back to work only if they undertooknot to go on strike. Every employee has at present a fundamentalright to go on strike if an industrial dispute exists between himself andthe management, to obtain a valid demand from the employer and apeaceful settlement is not possible. He loses this right if, accordingto the terms of employment accepted by him, he undertakes not to go onstrike in furtherance of an industrial dispute. Thus when the manage-ment wrote to the employees that they should return to work and give
WEERASOORIYA, S.P.J.—Virakesari Ltd. v. Fernando
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an undertaking not to go on strike the management attempted tocompel the workers to give up one of their fundamental rights. Bythe letter sent on the 11th June the management laid down furtherconditions which the workers had to accept if they wished to returnto work. In closing down the business and in attempting to alter theconditions of service', the management clearly intended to compel theemployees to accept terms and conditions of service affecting employ-ment which were different from the terms and conditions under whichthey had worked previously. I, therefore, hold that the closure onthe 24th of May was in fact a lock-out as defined in the Trade Union
In dealing with the submission made on behalf of the petitioner-Companythat even if the stoppage of work on the 24th May was a lock-out, therefusal of the employees to return to work after the letter of the26th May amounted, at any rate, to a strike, the 1st respondent held :
“ If the letter sent out on the 26th May to the employees was anunconditional offer requesting them to return to work and the employeeshad rejected that offer, then the employees would have been regardedas on strike. But in view of the conditions attached to the letter toreturn to work, conditions which the employer was not entitled to laydown with regard to the employees who were already working underhim, I consider that the employees were justified in refusing the offerof the management, and that the lock-out continued from the24th May.”
Prom the above quoted portions of the award it is clear that the construc-tion given by the 1st respondent to the letters of the 26th May and 11thJune, 1960, sent by the management to the employees decisivelyinfluenced him in arriving at the finding that the continued stoppage ofwork after the 24th May amounted to a lock-out.
The letter of the 26th May contains the following appeal addressedto the employees :
“ In the circumstances we appeal to your good sense to agree to
resume work immediately and not to strike.
{2) to have the cases of Messrs Hussain and Pius Fernando referredto the Industrial Court which is the proper authority establishedby law in this country to give a just and enforceable awardwhen conciliation proceedings by the Labour Department underthe same Act fail, as those did in this case. You will appreciatethat no one can carry on any business under mob rule and theLaws of the land should be respected by all parties for the goodof all concerned
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WEERASOORIYA, S.P.J.—Vvrakesari Ltd. v. Fernando
It will be recalled that this letter was written after the General Secretaryof the 2nd respondent-Unioa had informed the management of the Uniondecision to go on strike from the 24th May, and that the reason for thestrike was the management’s insistence that, notwithstanding the recom-mendations of the Authorised Officer, the dispute relating to Hussainand Pius Fernando should be referred to an Industrial Court. Whenin these circumstances the management addressed the letter to theemployees (whom they, rightly or wrongly, regarded as on strike interms of the notice given by the General Secretary) appealing to their“ good sense ” to resume work immediately, was it prompted by any sinis-ter motive as imputed to the management by the 1st respondent? Hadthe employees responded to this appeal and returned to work, it would,,no doubt, have meant their calling off the strike (i.e. if they were on strikeat the time) and also that they were agreeable to a reference of thedispute regarding Hussain and Pius Femandp to an Industrial Court. Butit by no means followed that by returning to work at that juncture theywere committing themselves irrevocably to such a reference or that theywould have been precluded in law from going on strike again in connec-tion with the same dispute or any other which may have subsequentlyarisen between them and the petitioner-Company. I am unable,therefore, to accept as valid the reasoning of the 1st respondent that theletter of the 26th May amounted to an attempt by the management ofthe petitioner-Company “ to compel the workers to give up one of theirfundamental rights ” or to impose on them new terms and conditions ofemployment.
The letter of the 11th June is as follows :
“ Dear Sir,
By our letter of the 26th May, 1960, we appealed to you toreport for work immediately but you failed to do so up to date.
Some of the strikers have circulated among our readers and thegeneral public a leaflet along with our paper of the 24th May, 1960,before they struck work defaming the Management by various false-allegations and some of them have even visited several of our cus-tomers and told them not to pay their dues to us. Since then someof the strikers have threatened to assault our directors and other,employees of the Company and some of them, as you are aware,,have even made a dastardly attempt to murder our Works Managerand two other employees of the Company on the 1st instant at about-10 a.m. on the public road.
In the circumstances, while reserving our right to take suitable-action against the culprits directly or indirectly involved in such,despicable and atrocious crimes, we give you notice to report forduty on or before the 15th instant on your agreeing to the following-
WEERASOORfYA, S.P.J.— Virakesari Ltd. v. Fernando
155
code of conduct failing which your employment with us will remain,terminated with effect from that date without further notice.
No employee unless specially sent by a superior officer may
enter any part of the Company’s premises other than thatin which he is normally employed, nor may he loiter aboutentrances or corridors.
No employee shall leave his department during working
hours without the permission of the head of his departmentor in his absence of the next senior officer.
. 3. Employees are at all times to conduct themselves in a quietand orderly manner in all parts of the premises and theirvicinity including the adjacent public highways.
No employee shall treat the reasonable orders of a superior
officer with disobedience or insolence nor shall he neglecthis work, nor shall he sleep while on duty.
No employee shall whether with fellow workers or outsiders
hold or participate in any meeting in any part of the-Company’s premises unless the Company’s previoussanction in writing has been obtained for such a meeting.
8. No employee shall display or assist in displaying upon the-Company’s premises any notice, poster, emblem, device-or slogan without the previous sanction in writing of the>Administrative Secretary.
No employee shall assault, abuse, hoot or threaten any other
persons in the employment of the Company or connected,therewith.
No employee shall commit any act which will cause damage
to the Company in any manner.
Any action, even a single instance of such action, by any
employee contrary to these specific prohibitions shall ofitself constitute a ground for disciplinary action, includingdismissal when the circumstances are grave.
Yours faithfully,
Sgd. J. V. Pais.
Adm. Secretary.’*"
The 1st respondent held that by this letter the management- of" the-petitioner-Company “ clearly intended to compel the employees to-accept terms and conditions of employment which were different from.
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WEERASOORIYA, S.P.J.— Virakesari Ltd. v. Fernando
the terms and conditions under "which they had worked previouslyThis appears to be a sweeping statement to make of a communicationa part of which, at least, seeks to emphasise the need for the employeesnot to commit various acts which per se amount to misconduct (or evencriminal offences) such as assaulting, abusing, hooting or threateningother employees of the petitioner, disobedience or insolence towardssuperior officers, neglect of duty including sleeping during workinghours, and noisy or disorderly behaviour within, and in the vicinity of,the petitioner’s premises. These acts of misconduct are classified underitems 3, 4 and 7 of paragraph 3. If any exception may be taken to thispart of the letter, it is that the fact that the management consideredit necessary to refer to such matters was itself a reflection on theemployees, the presumption being that any decent minded employeewould abhor such conduct without having to be reminded that he shouldnot be guilty of it.
i
Items 1, 2, 5 and 6 refer to a different class of acts, which do not per seamount to misconduct but which the employees were prohibited fromdoing in future, such as, being found in various parts of the petitioner’spremises where they had no business, leaving the place of work withoutobtaining permission, participating in or being present at meetingsheld in the premises of the petitioner without the sanction of the manage-ment and the displaying or assisting in the displaying, within the premises,of unauthorised notices, posters, emblems, devices or slogans. Learnedcounsel for the 2nd and 3rd respondent-Unions submitted that it hadbeen a long standing practice for the petitioner’s premises being used asthe venue of Union meetings and for notices, posters, etc., connectedtherewith being displayed within the premises, for employees, who wereUnion officials being allowed access to all parts of the premises irrespec-tive of where they worked, and even to be absent from their place ofwork during office hours without the need for obtaining leave. Thereis, however, nothing in the award to show that the 1st respondent acceptedthe position that there was such a practice. In the absence of evidencethat such practice, even if it existed, formed a term or condition of the-contract of service between the petitioner-Company and its employees,the continuance of it would have depended on the goodwill of themanagement. Things had come to such a pass in the Company’s affairsthat the management may well have taken the view that if the Companywas to survive it was essential that such practice should be stoppedin the interests of discipline and the better functioning of the Company’sbusiness.
Item 8 is in the nature of an omnibus clause. It does not seem toadd to anything stated under the preceding items. The word “ damage ”in the context should, I think, be construed as wrongful damage andnot damage howsoever caused. In dealing with the letter of the
WEERASOOMYA, S.P.J.—ViraJcesari Ltd. v. Fernando
167
11th June the 1st respondent has not specifically referred to this item or toitem 9, •which deals with the disciplinary action that may be taken on abreach of the prohibitions enumerated in the earlier items. His findingthat this letter constituted an attempt on the part of the managementto compel the employees to accept terms and conditions of employmentwhich were different from the terms and conditions under which theyhad worked previously appears to have been arrived at on a considerationof the contents of it as a whole. In my opinion, this finding is basedon a misconstruction of the letter.
A lock-out is defined in the Trade Unions Ordinance (Cap. 138) as“ the closing of a place of employment or the suspension of work,or the refusal by an employer to continue to employ any numberof persons employed by him in consequence of a dispute, done witha view to compelling those persons, or to aid another employer incompelling persons employed by him, to accept terms or conditionsof or affecting employment ”.
The 1st respondent adopted this definition for the purpose of his findingthat the stoppage of work which commenced on the 24th May, I960,was a lock-out and not a strike. In my opinion, this finding is vitiatedby his misconstruction of the letters dated the 26th May and 11th June,1960. A misconstruction of a document is an error of law. It wasso held by the Court of Appeal in England in Baldwin & Francis Ltd.v. Patents Appeal Tribunal and Others1. In dealing with the questionof what constitutes the record of an inferior tribunal I have had occasionto refer to the appeal which came up before the House of Lords in thesame case. For the reasons stated by me earlier, the two letters inquestions are, in my opinion, documents which form part of the recordof the 1st respondent. I quash so much of the award of the 1st respon-dent as relates to the second point in dispute. This includes theorder made by the 1st respondent for the re-instatement of the employeesreferred to in the second point in dispute and that they be paid sixmonths’ gross wages.
The 2nd and 3rd respondent-Unions will pay the petitioner’s costsof this application, which I fix at Rs. 525.
Application allowed.
1 (1958) 2 A. E. R. 368, at 371.