121-NLR-NLR-V-49-ILLANGAKOON-Petitioner-and-BOGOLLAGAMA-et-al.-Respondents.pdf
Illangakoon v. BogoUagama.
403
1948
Present: Gratiaen J.
ILLANGAKOON, Petitioner, and BOGOLLAGAMA et al., Respondents.
S. C. 403—Application for a Writ of Certiorari
Writ of Certiorari—Manager of Co-operative Store—Claim for value of goods en trusted—Claim made after resignation of manager—Arbitration— Jurisdiction ofarbitrator—Co-operative Societies Ordinance—Chapter 107—Rule29—
Section 45.
Petitioner was employed as manager of- a Co-operative Store. After hisresignation he received a summons to appear before the first respondent whoclaimed to be appointed by the Registrar of Co-operative Societies under rule29 of the rules framed under section 37 of Ordinance No. 34 of 1921, to arbitrateupon an alleged dispute between the Society and the petitioner in respect of theSociety’s claim for a sum of money being the value of certain goods entrustedto him as manager. On an application for Writ of Certiorari to quash theproceedings before the arbitrator as being in excess of jurisdiction—
Held, (i) that rule 29 of the rules framed under section 37 of OrdinanceNo. 34 of 1921 did not permit the reference to arbitration of a dispute between aCo-operative Society and one of its ex-officers ; (ii) that even if the petitionerwas a member the dispute in question was not one resulting from his member-ship ; (iii) that the word officer in section 45 (i) (c) of Chapter 107 did not includean ex-officer and that the dispute could not have been referred to arbitrationeven under that provision of the Ordinance.
404
GRATIAEN J.—Jllangakoon v. Bogollagama
Application for a writ of certiorari.W. Jayewardene, for the petitioner.
B. Wikramanayake, for the 1st and 2nd respondents.V. Tennekoon, Crown Counsel, for the 3rd respondent.
Cur. adv. vult.
May 27, 1948. Gratiaen J.—
The petitioner was employed as Manager of the Kurunegala Co-opera-tive Stores Society Limited (a society duly registered under the Co-operative Societies Ordinance, Chapter 107) for a period of four monthsuntil he resigned his post with eifect from September 30, 1944. Overa year later, on November 15, 1945, he received what purported to be asummons to appear before the 1st respondent, C. R. Bogollagama, whoclaimed to have been appointed by the Registrar of Co-operative Societiesto arbitrate upon an alleged dispute between the Society and the peti-tioner in respect of the Society’s claim to receive from the petitioner“a sum of Rs. 2,207.15 being the value of goods entrusted to him asmanager between June 1, 1944, and September 30, 1944, and not accountedfor. ” It is not denied that this was the first intimation which thepetitioner had of the Society’s claim.
It was stated in the summons that the 1st respondent would functionas arbitrator “ under Rule 29 of the rules framed under section 37 of theCo-operative Societies Ordinance, No. 34 of 1921 ”. This Ordinance wasnot in operation at the relevant date except in so far as it was kept alivefor certain purposes under the provisions of the later Ordinance No. 16of 1936 (Chapter 107) which provided, inter alia, by section 52 (2) thatall rules made under the earlier Ordinance should continue in force untilnew rules were made under the new Ordinance in substitution for them.I will assume for the purposes of this application that Rule 29 underwhich the 1st respondent claimed jurisdiction to function.as an arbitratorwas in operation at the relevant date. The effect of this rule was thatany dispute concerning the business of a Co-operative Society between“ members or past members of the Society ■ … .or between a
member or past member and the committee (I quote only the relevantwords) shall be referred to the Registrar of Co-operative Societies.”The Registrar was further empowered, if he thought fit, to appointan arbitrator to decide the dispute, in which event an appeal fromthe arbitrator’s award would lie to the Registrar within one month ofthe date of the award. It will be observed that a condition precedentto the applicability of Rule 29 was that one of the parties to thedispute concerning the business of the society should be a member orpast member of the Society. It is not suggested by the respondentsthat the petitioner had ever been a member of the Society, and it istherefore clear that the 1st respondent had no jurisdiction whatsoeverunder this Rule to officiate as arbitrator or to make any award inrespect of the Society’s claim against the petitioner.
GRATIAEN J.—lUangakoon v. Bogollagatna.40r>
Immediately on receipt of the 1st respondent’s summons the petitionerreplied pointing out that he was not a member of the Society and challeng-ing the 1st respondent’s right to assume jurisdiction under Rule 29. The1st respondent ignored this letter, and proceeded to adjudicate upon theSociety’s claim against the petitioner ex •parte on January 25, 1946. Hepurported to award the Society the full amount of its claim of Rs. 2,207.15together with a sum of Rs. 50 as costs of the inquiry. For some quiteinexplicable reason the terms of this “ award ” were not in point of factcommunicated to the petitioner for very nearly six months, with theresult that, assuming that the 1st respondent had jurisdiction to make anaward regarding the dispute, the petitioner’s right of appeal within onemonth of the date of the award ” under Rule 29 was withheld from him.
I earnestly hope that this deplorable state of affairs is not typical of themanner in which arbitration proceedings under the very salutaryprovisions of the Co-operative Societies Ordinance are conducted.
On receiving intimation of the 1st respondent’s ex parte award againsthim, the petitioner once more protested that it had been made withoutjurisdiction. He appealed to the Registrar against the award underprotest, and made an application to this Court for a writ of Certiorariquashing the 1st respondent’s purported award against him. Rendingthe final hearing of this application the Registrar has purported, inthe exercise of his appellate jurisdiction under the Ordinance, to setaside the award and to order the 1st respondent to reopen the arbitrationproceedings in order to give the petitioner “ another chance of appearingin person and stating whatever he has to say ”.
In my opinion the petitioner’s contention that the earlier arbitrationproceedings before the 1st respondent under Rule 29 framed undersection 37 of the Co-operative Societies Ordinance, No. 34 of 1921, wereillegal is entitled to succeed. The rule does not authorise a disputebetween a co-operative society and one of its ex-officers to be referredto arbitration. The award of the 1st respondent was made withoutjurisdiction. Even if the petitioner had been a member of the society,rule 29 would not have been applicable, because the dispute betweenhim and the society did not arise from a transaction resulting from hismembership. (Mohideen v. Lanka Matha Co-operative Stores Society,Ltd.1.)
The clear absence of jurisdiction in the 1st respondent to adjudicateupon the dispute under Rule 29 was tacitly conceded by. Counsel whorepresented the Registrar of Co-operative Societies before me. It wascontended, however, that the 1st respondent was vested with jurisdictionto make an award under a different provision of the law, namely, sections45 (1) (c) and 45 (2) of the present Co-operative Societies Ordinance,Chapter 107. Even if this position was tenable, I fail to see howany person who purported to exercise extraordinary powers underone provision of the law can subsequently be heard to claim thathe had some alternative jurisdiction (which was not notified to theparty who challenged his powers) to act in terms of a differentprovision ’of the law. Apart from that consideration I am satisfiedthat section 45 (1)(c) was equally inapplicable to the dispute
1 (1947) 43 N. L. R. 177.
406
Sdbapathy v. Richard.
which arose between the Society and the petitioner. Section 45(1) (c) provides for an investigation of any dispute “ between the Societyor its committee and any officer of the Society ”. In this present casethe petitioner had ceased to be an officer of the Society many monthsbefore the dispute arose. The word “ officer ” in section 45 (I) (c) cannotbe construed so as to include an ex-officer of a co-operative society.Wasudeo v. Registrar.1 It is significant that the section earlier providesexpressly for a dispute between members “ and past members ”.A statute which restricts a person’s right to have his disputeinvestigated in a regular action must be strictly construed.
I make order quashing the proceedings before the 1st respondent andhold that liis purported award against the petitioner dated January 25,1946, was made without jurisdiction. In my opinion the 3rd respondent,the Registrar of Co-operative Societies, was primarily responsible for theillegal proceedings held against the petitioner and I order him to paythe costs of the petitioner which I fix at Rs. 157.50.
Proceedings quashed.