Eusoffe Abdoolcader J:

Sungai Wangi Estate seeks in an application by way of originating summons for a declaration that there is an error on the face of the record of Industrial Court Award No. 1/74 in Industrial Court Case No. 20 of 1973, a declaration that the award is invalid because of the error of law on the face of the record and such further or other relief as the Court may think fit and proper, concluding not unnaturally with the ubiquitous prayer for costs. This application raises in my view a very important issue in administrative law pertaining to the role of the declaratory judgment in judicial review.

Briefly, the background of this matter is that on 18 January 1973 the applicant dismissed the respondent by giving him one month's salary in lieu of notice, whereupon the respondent appealed to the Minister under s. 16A of the Industrial Relations Act, 1967, and on 14 June, 1973, the Minister referred the matter to the Industrial Court. On 7 January 1974, the President of the Industrial Court handed down the Award No. 1/74.

Before Mr. Puthucheary, Counsel for the applicant, could proceed to the substance of the complaint against the award, I raised at the very outset of the hearing before me some ten days ago the question of the propriety of the form and nature of the proceedings before me and the consequence of any declaration I may make thereupon in that it appeared to me there would then be two inconsistent decisions, one of the Industrial Court and the other of this court, subsisting side by side. Mr. Xavier, Counsel for the respondent, frankly admitted that he had not considered this aspect and had not proposed to raise it but was going straight into the meat of the matter, as he put it, but, as I pointed out to him, I could hardly consider the meat if, metaphorically speaking, it comes from the wrong shop or, perhaps more appropriately, is the product of illegal slaughter, referring of course to the form and nature of the proceedings before me.

Mr Puthucheary conceded that certiorari would lie in this case but stated that the reason for seeking a declaration and not certiorari was that the Industrial Court does not have a corporate personality and therefore it would not be possible to join it as a party to any proceedings for certiorari to quash the award. He relied on Industrial Arbitration Tribunal V. Cargo Handling Corporation Ltd. but I cannot see how that case has any relevance whatsoever as it only decided that the Industrial Arbitration Tribunal has no corporate personality and therefore no locus standi as such to be the appellant against an order of prohibition made by Gill J, (as he then was) in In The Matter Of Cargo Handling Corporation Ltd. V. Cargo Handling Corporation Staff Union where in fact an order of prohibition was made against the Industrial Arbitration Tribunal. It is now settled law that notwithstanding the finality clause enacted in s. 29(3)(a) of the Industrial Relations Act, 1967, this Court has power to issue an order of certiorari to quash the Industrial Court's decision which on the face of it discloses an error of law (Selangor Omnibus Co. Limited v. Transport Workers Union, Malaya; [1967] 1 MLJ 280 Lian Yit Engineering Sdn. Bhd. v. Loh Ah Fon & Others [1974] 2 MLJ 41. There is therefore no reason why an order of certiorari could not have been sought in this matter.

But the question still remains as to whether or not as an alternative to certiorari a declaration can be made for the purposes sought. Certiorari will lie to quash a decision for want or excess of jurisdiction, breach of the rules of natural justice, error of law on the face of the record and fraud or collusion. There is now ample authority demonstrating that a declaration of invalidity is obtainable for jurisdictional defects and breaches of natural justice, in such cases as, for example, where an interested party has not been joined or heard, resulting in a decision or determination being a nullity (Ridge