030-NLR-NLR-V-79-2-P.-KARUNARATNE-Petitioner-and-COMMISSIONER-OF-CO-OPERATIVE-DEVELOPMENT-and-.pdf
ISMAIL, J.—Karunaratne v. Commissioner of Co-operative Development193
1978Present: Samarakoon, C.J., Ismail, J. and
Walpita, J.
P. KARUNARATNE, Petitionerand
COMMISSIONER OF CO-OPERATIVE DEVELOPMENTand ANOTHER, RespondentsS.C. Application 992/77
Writ of Certiorari—Award made by Arbitrator under Co-operativeSocieties Law, No. 5 of 1972—Proceedings to quash such award—Failure to make Arbitrator a party—Fatal irregularity.
Where an application was made for relief by way of Certiorari toquash an award made by an Arbitrator in terms of the Co-operativeSocieties Law, No, 5 of 1972, and' the Arbitrator who made suchaward was not a party to these proceedings.
Held: That the failure to make the Arbitrator a party was afatal irregularity and the application must therefore fail.
Cases referred to :
Jamila Umma v. Mohamed, SO N.L.R. 15.
Soyza v. De Silva, 52 N.L.R. 309.
Dissanayake v. Siyane Adikari Co-operative Stores Union, 60 N.L.li.140.
^ PPLICATION for a Writ of Certiorari.
T. Wickremasinghe, for the petitioner.
K.Sripavan, State Counsel, for the 1st respondent.
T. M. S. Nanayakkara, for the 2nd respondent.
Cur. adv. vult.
August 8, 1978. Ismail, J.
The petitioner in these proceedings has applied for a writof certiorari to quash the findings and the order of the 1strespondent, a certified copy of which has been marked ‘ X ’ andfiled along with the petition. The 1st respondent who is theCommissioner of Co-operative Development and Registrar ofCo-operative Societies has filed his objections and taken up theposition that he is not a legal person and as such writ cannot lieagainst him. He has taken up the further position that hispowers had been delegated to T. D. J. Vitharana, DeputyCommissioner of Co-operative Development, and it was he whohad made the award which is sought to be quashed in theseproceedings, and that since he had not been made a party tothese proceedings, the application should be dismissed.
]* —A 61391 (80/09)
194 ISMAIL, J.—Karunaralne v. Commissioner of Co-operative Development
The facts briefly are that one Karunaratne the petitioner hadbeen selected as a temporary watcher on 22.5.72 and by letterof appointment dated 1.6.72 he had been made a temporarywatcher under the 2nd respondent. This letter specifies that hishours of duty were from 6 #.m. till 9 a.m. the following day andduring week ends from 1 p.m. on Saturday till 9 a.m. the.following Monday including the whole of Sunday.
On 10.1.73 he had assumed duty at 6 p.m. and in the earlyhours of the morning of 11.1.73 he had left the premisesunattended without permission and without informing anyonein authority and had returned in about two hours time. Duringhis absence the Co-operative Society building had been burgledand goods had been removed.
In terms of section 58 of the1 Co-operative Societies Law, No. 5of 1972, the dispute had been referred to an arbitrator in termsof section 58 of that Law. The arbitrator after due inquiry hadmade an award against the petitioner in a sum of Rs. 7,614.60plus costs and interest. The petitioner had thereafter appealedagainst the award. The hearing of the appeal had been delegatedby the 1st respondent to one T. D. J. Vitharana, the DeputyCommissioner of Co-operative Development. After hearing theparties and due inquiry he upheld the award made by thearbitrator with a variation that the amount payable wasRs. 6,714.60 plus interest and costs in a sum of Rs. 200.
Counsel for 1st respondent has submitted to us that theapplication must fail on two grounds, firstly, that the 1strespondent is not a legal person and in any event there is noaward made by the first respondent and therefore cannot bemade a party, and secondly, that the Deputy CommissionerMr. Vitharana who made the award at the hearing of the appealand which award is sought to be quashed in these proceedingshas not been made a party.
In the case reported in 50 N.L.R. page 15, Nagalingam, J.stated—
“ The petition before Court for the issue of a writ ofcertiorari is a document that must be construed havingregard to the ordinary meaning attached to the words andlanguage used therein. The officer designated ‘ Commissionerfor Workmen’s Compensation Claims ’ is a particular officerwho is distinct from a Deputy Commissioner. On an appli-cation such as the present one, it is essential that the partyor parties against whom relief is sought must be identifiedclearly and no room left for uncertainty. In the presentapplication the officer whose order is sought to be quashed
ISMAIL, J.—Karunaratne v. Commissioner oj Co-operative Development 195
is the Commissioner, but it now transpires that the ordercomplained of was made not by the Commissioner but bythe Deputy Commissioner, and the relief must consequentlybe applied for against the Deputy Commissioner and notthe Commissioner himself. The second respondent, theCommissioner, therefore, has been wrongly made a partyand the application against him must be refused.
The question whether an amendment of the applicationshould be allowed does arise, but the object of the amend-ment is to substitute a new party or a wrong party on recordand an amendment in these circumstances does not lie andcannot be permitted.
The only other question is whether the application againstthe first respondent too should be dismissed. If the ordercomplained of cannot be quashed in the absence of theproper party who made that order, then the relief appliedfor against the first respondent too necessarily fails.”
The case reported in 52 N.L.R. 309 followed the dictum of 50N.L.R. 15 and Gunasekera, J. in the course of his order stated—
“ I am unable to agree that the 1st respondent has beenwrongly made a party. He is the person who purported tomake the award that is in question, and the award cannotbe quashed in a proceeding to wtiich he is not a party : cf.Jamila Umma v. Mohammed, et al. ”
In the case reported in 60 N.L.R. 140, Weerasooriya, J. heldthat,
“ When an application is made for a writ of certiorari bya person against whom an award has been given inproceedings referred to arbitration under the provisions ofthe Co-operative Societies Ordinance, the arbitrator is anecessary party and must be made a respondent.”
In She course of the judgment Weerasooriya, J. states,
“ Mr. Vannitamby who appeared for the 1st respondent(the Co-operative Society) took preliminary objection thatthe arbitrator, though a necessary party, had not been madea respondent to this application, and he relied on Soyza v.de Silva (52 N.L.R. 309). As specific relief is sought for inthe way of an order quashing the arbitration proceedingsand declaring the award of the arbitrator null and void, inmy opinion the preliminary objection is entitled to succeed. ”
In view of these authorities it appears to me that the DeputyCommissioner of Co-operative Development T. D. J. Vitharanawho made the award is a necessary party to these proceedings
106
Abdul Cajfoor v. Attorney-General
and the failure to add him as a party respondent is a fatalirregularity. It is therefore not necessary to deal with the othermatters referred to in the petition. The application is accordinglydismissed with costs.
Samarakoon, C.J.—I agree.
Walpita, J.—I agree.
Application dismissed.