Virakesari Ltd. V. Fernando

1963 Present: Weerasooriya, S.P.J.

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

S. 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 as to what constitutes " the record "-Delay as a ground for refusal of writ- Scope-Industrial dispute-" Lock-out"-Industrial Disputes Act (Cap. 131), ss. 3 (1) (c), 4 (2)-Trade Unions Ordinance, s. 2.

      In an application for a writ of certiorari to quash an award of an Industrial Court in an industrial dispute which was referred for settlement under section 4 (2) of the Industrial Disputes Act-

      Held : (i) The order of an inferior tribunal having a duty to act judicially in determining the rights of parties is liable to be quashed by a writ of certiorari for 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 the basis of the decision.

              (ii) The omission of an inferior tribunal to take into consideration a relevant document forming part of the record, or a misconstruction of such document, is an error of law appearing on the face of the record.

             (iii) An application for a writ of certiorari will not be refused on the ground of delay if the delay is not attributable to the petitioner. Even if the position be otherwise, where notice on the respondent has already issued and at the subsequent bearing 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 no other remedy, certiorari should be granted ex debito justitiae.

    APPLICATION for a writ of certiorari to quash an award given by an Industrial Court in respect of an industrial dispute in which the points in dispute were (1) whether the non-employment of two employees in a printing and publishing establishment (Virakesari Ltd.) was justified, and (2) whether a stoppage of work at the establishment was a strike or a lock-out.

                H. V. Perera, Q.C., with S. J. Kadirgamar, Izadeen Mohamed and H. D. Tambiah, for Petitioner.
 
               Colvin R. de Silva, with P. B. Tampoe, P. K. Liyanage, Prins Rajasooriya, U. C. B. Ratnayake and R. Weerakoon, for 2nd and 3rd respondents.

              No appearance for 1st, 4th and 5th respondents.

Cur. adv. vult.

December 20, 1963. WEERASOORIYA, S. P. J. -

     This is an application for a mandate in the nature of a writ of certiorari to quash an award made by the 1st respondent in his capacity as an Industrial Court constituted under the provisions of the Industrial Disputes Act (Cap. 131).
 
    The petitioner is a limited liability company and was at the relevant time carrying on the business of printing and publishing a Tamil daily newspaper 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. The former was the Secretary of the Virakesari branch of the Ceylon Mercantile Union, the 2nd respondent, while the latter was the President of the branch. There was also a Virakesari branch of the All-Ceylon United Printing Employees' Union, the 3rd respondent. The majority of the employees of the petitioner were members of one branch or the other of these two Unions.

     For some tune prior to the 1st February, 1960, the employees had been agitating for the payment of annual increments, but as there was no definite response from the petitioner to their demands, it was decided at a meeting of the executive committee of the branch of the 2nd respondent 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 of Pius Fernando and Hussain in that connection, the manageme

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