Haidar Mohd. Noor J:

On 23 May 1991 the applicant, Holiday Inn Kuching was granted leave to apply for an order of certiorari to remove into the Court for the purpose of being quashed the Industrial Court Award No. 255 of 1990 ([1990] 2 ILR 262) dated 25 September 1990 given in Industrial Court Case No. 1:4/4 - 325/87.

The award was for the sum of RM49,005 in respect of backwages and compensation in lieu of reinstatement to the respondent, Elizabeth Lee Chai Siok after making a 40% deduction for her contributory conduct for her dismissal without just cause or excuse by the applicant as ruled by the Industrial Court. The award was however, subject to the usual income tax deductions and EPF contributions, if any.

At the outset of the hearing, Counsel for the respondent raised a preliminary objection on the applicant's application on the ground that the applicant had filed an application before the Industrial Court under s. 33A of the Industrial Relations Act 1967 (IRA) to refer a question of law to the High Court and such application is still pending and the present application before this Court is substantially on the same issue and as such it should be viewed as an attempt by the applicant to abuse the process of the Court. J.C Fong, Counsel for the applicant expressed surprise as he was not duly informed of the preliminary objection raised. However, he requested for an adjournment to get instructions from his client. Francis Wee, Counsel for the respondent had no objection and I adjourned the hearing to 4 September 1991.

On 4 September 1991 J.C Fong informed the Court that his client wished to proceed solely with the present certiorari application and his client will discontinue the application pending before the Industrial Court. In fact he had earlier notified the Court and the respondent's Counsel of his client's intention vide letter dated 2 September 1991. Francis Wee, Counsel for the respondent indicated that in the circumstances he would not pursue the preliminary objection raised in the earlier hearing. I then directed this originating motion to proceed.

From the tone of the submission of J.C Fong, Counsel for the applicant, in comparison to the grounds put forth in the statement filed, the principal grounds relied on to quash the award of the Industrial Court are:

(1) The Industrial Court having found that there was no constructive dismissal as alleged by the respondent has erred in law in proceeding to find that the respondent had on a balance of probabilities been dismissed.

(2) The Industrial Court erred in law in finding that the respondent was dismissed and accordingly erred in assuming jurisdiction of the matter and thereby committing an error as to its jurisdiction.

(3) The Industrial Court has in breach of natural justice, failed to hear and/or consider the points raised by the applicant that:

(i) The Industrial Court had no longer any jurisdiction to determine the dispute referred to it when the respondent gave evidence that she wanted to continue on working for her present employer (Hilton Hotel), that is, she did not want reinstatement to employment with the applicant.

(ii) There was no jurisdiction for the Industrial Court to grant compensation in lieu of reinstatement in view of the fact that the respondent did not want reinstatement.

(4) The Industrial Court in ignoring, failing to hear and/or consider the points mentioned in para. 3 above has further failed to take into account relevant considerations, and has acted unreasonably and accordingly has exceeded its jurisdiction.

(5) The Industrial Court has committed errors of law affecting its jurisdiction when it continued to assert its jurisdiction when the respondent did not want reinstatement.

(6) The Industrial Court has acted without or has exceeded its jurisdiction in making the award dated 25 September 1990.

Before proceeding to consider the grounds put forth, it may be useful to set out the pertinent facts which would appear to be not in dispute. They