This is an application by the applicant for an order of certiorari to quash Award No 138/88 handed down by the Industrial Court on 2 June 1988 pursuant to a reference made under s 36(2) of the Industrial Relations Act 1967. The said reference arose out of the dispute between the applicant and the respondent over the dismissal, transfer and demotion of some of the employees of the applicant whose particulars are set out in sch A, B and C annexed to the award.

It is not in dispute that the applicant is the only transport company in the state of Kelantan and is thus classified as an essential service under item 11 of the schedule to the Industrial Relations Act 1967.

The facts as disclosed by various affidavits are that on 27 August 1986 the applicant suspended an express bus driver Abdul Hamid bin Wok (claimant No 1 in sch A) pending investigations under s 14(2) of the Employment Act 1955 for an alleged misconduct in that he had physically opposed his superior at about 2.15pm on same day. At the material time, Abdul Hamid was the respondent's union section vice-chairman. Consequent upon the said suspension, 17 drivers referred to in sch A are alleged to have individually and collectively refused to drive the express buses and to perform the normal duties on 28 and 29 August 1986, as a result a number of buses were delayed, while two express buses with passengers had to be cancelled on the night of 28 August.

It is also alleged that prior to 28 August all buses were running as scheduled. No notice whatsoever was given by the drivers of the intended stoppage of work and no complaints of lack of equipment on the buses were ever lodged. Consequent upon the said stoppage, the 17 drivers (claimants No 2 and 4 to 19 in sch A) were suspended and were accordingly charged for misconduct. Domestic inquiries were conducted whereupon they were all found guilty and accordingly dismissed from service, so were Abdul Hamid bin Wok and Abdul Rahim bin Ahmad (claimant No 3) after the allegations against them were found proved at the said domestic inquiries. Apart from these 19 employees, four others as per Nos 20, 21 and 22 in sch B and No 23 in sch C were also found guilty and three of them were transferred to other stations while one of them was demoted.

It is common ground as indeed the law is settled that inspite of the ouster clause in s 33B(1) of the Industrial Relations Act 1967, certiorari is still available to quash the decision of the Industrial Court after it is found that the Industrial Court has acted without or in excess of the limit of its jurisdiction or if the court has jurisdiction to enter an inquiry it has done or failed to do something in the course of inquiry which is of such a nature that its decision is a nullity. The decision may be a nullity by reason of a breach or failure to observe the requirements of natural justice — see Mak Sik Kwong v Minister of Home Affairs [1975] 2 MLJ 175, South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturers Employees Union and Ors [1980] 2 MLJ 165, Inchcape Malaysia Holdings Bhd v RB Gray & Anor [1985] 2 MLJ 297 and Sabah Banking Employees' Union v Sabah Commercial Banks' Union [1989] 2 MLJ 284. To ascertain whether the Industrial Court had or had not exceeded its jurisdiction, it must be asked whether the court in making its award had taken into account matters which it was required to do and/or had based its award on some matters which under the Act it had no right to take into account.

Mr Varughese, for the applicant, referred to the case of Malayan Banking Bhd v Association of Bank Officers, Peninsular Malaysia & Anor [1988] 3 MLJ 204, wherein the Supreme Court said:

There are then some cases which assert that a jurisdictional error is committed if a decision-maker acts upon an incorrect basis in fact. The leading case is Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, in which Lord Wilberforce