JUDGMENT

Raja Azlan Shah CJ (Malaya):

This is an appeal from the decision of Hashim Yeop A. Sani, J dismissing the application of the appellants for an order of certiorarito quash the decision of the Industrial Court (`the Court') holding it had jurisdiction to hear and determine two applications under the provisions of s. 33A of the Industrial Relations Act, 1967 (`the Act')to refer to the High Court certain questions of law that had arisen out of two awards made by a different panel of the Court. To appreciate the arguments that have been raised before us it would be necessary to state a few facts.

On 16 August 1979 the Minister of Labour and Manpower referred two trade disputes between the National Union of Hotel, Bar and Restaurant Workers, the 1st respondent to this appeal, and Hotel Malaya Sdn. Bhd., Kuala Lumpur and Kuala Lumpur Restaurant Sdn. Bhd., the appellants, to the Court. On 30 May 1981 the Court composed of Encik K. Somasundaram as Chairman and three members - Datuk K.K. Nair, Encik Jaffar Mohd Ali and Encik Chiew Peng- handed down two awards. Encik K. Somasundaram has since retired. On September 18 1981 the Court constituted of Harun Mahmud Hashim J, President of the Court and three members - Datuk Chong Shih Guan, Encik Esa bin Haji Ahmad, and Encik R. Retnam - heard applications by the 1st respondent in relation to the two awards to refer certain questions of law arising out of both the awards to the High Court under s. 33A of the Act. Counsel on behalf of the appellants unsuccessfully contended that differently constituted Court had no jurisdiction to hear the applications on the ground that it was not the same Court that handed down the awards on 30 May 1981. He argued that the same Court which handed down the awards on 30 May 1981 should and indeed must hear the applications. It is said that the competence of the Court to hear the applications goes to the very root of its jurisdiction and, where it is lacking, it is a case of inherent lack of jurisdiction.

The Court after hearing argument held on 31 October 1981 in what it termed an interim award that it has jurisdiction to hear the two applications.

Pursuant to the leave granted by Hashim Yeop A. Sani, J in the High Court to apply for an order of certiorarito quash the decision of the Court dated 31 October 1981, the learned Judge after hearing arguments with regard to the alleged defect or lack of jurisdiction in the Court which heard the applications under s. 33A of the Act,dismissed the application for certiorari.He was not prepared to analyse and dissect the language of s. 33A to read into it thesupposed requirement that the Court as constituted which made the two awards in the first instance must hear the applications under s. 33A of the Act.He was of the view that sub-section (4) ofs. 22 of the Actis an enabling provision, facilitating a member whose term of office has expired,to continue to sit in uncompleted proceedings, and since the proceedings had been finally disposed of when the Court handed down its awards on 30 May 1981, that provision did not apply.

Before us counsel on behalf of the appellants starts with the submission, and we think that is his main ground, that the proceedings which had begun before the Court presided by Encik K. Somasundaram were not finally disposed of until the expiry of thirty days after the making of the award had expired [s. 33A (3)], or, if an application was made under s. 33A, until that application had been rejected or refused by the Industrial Court, or, if granted, until the determination by the High Court of the questions referred to it [s. 33A(5)]. He relied on the provisions of sub-section (4) of s. 22 of the Actand two cases, Garland v. Westminster City Council[1970] 21 P & CR 555 and Austin Reed Ltd. v. Royal Insurance Co. Ltd.[1956] 1 WLR 1339.

Section 22 of the Actdeals with the constitution of the Court; sub-section (4) of s. 22 of the Actis as follows:

Any member of the Court constituted under this