028-SLLR-SLLR-1986-V-1-CEYLON-CERAMICS-CORPORATION-v.-G.-G.-PREMADASA.pdf
CA
Ceylon Ceramics Corp. v. Premadasa
287
CEYLON CERAMICS CORPORATION
v.
G. PREMADASA
COURT OF APPEAL.
H. A. G. DE SILVA, J. AND DHEERARATNE. J.
C.A. No. 12/80-L.T. 1/7742/75.
SEPTEMBER 16. 1985.
Industrial Disputes Act-Termination of probationer’s services – Meaning of
"probation"—Bona tides-Point of law taken for the first time in appeal.
/
The services of a probationer can be terminated during the period of his probation if hisservices are not considered satisfactory. Such termination is not- unlawful orunjustifiable provided it is bona fide.
Semble:
Where an employee is interdicted during the period of his probation, he continues to beon probation.
A point of law can be raised for the first time at the appeal stage.
Cases referred to:
Richard Pieris & Co., Ltd. v. Jayatunge – 1 Sri Kantha 's Law Reports 17.
Hettiarachchi v. Vidyalankara University – (1972) 76 NLR 47
APPEAL from judgment of the Labour Tribunal.
Chula de Silva with N. Casie Cherry for employer-appellant.
Daya Guruge with Miss K. Chelliah for the applicant-respondent.
Cur. adv. vult.
November 15. 1985.
A. G. DE SILVA, J.
The applicant was appointed as Storeman in the service of therespondent Corporation by R8 .dated 21.4.1978 w.e.f. 1st April1971. Cage 1 2 of the letter of appointment states that he will be on■''probation for one year and that within that period, his services couldbe terminated with one week's notice. Cage 14 informs him that ifduring the period of probation his work is found to be unsatisfactory, itwould necessitate his services being terminated.
288
Sri tanka Law Reports
[1986] I Srit.R.
On 23rd February 1972 by R9 the applicant-was interdicted withimmediate effect and he was asked to show cause on or before3.3.197 2 why his services should not be terminated on the chargesstated therein. A domestic inquiry was held by an outsider, viz: MrKohoban Wickrama formerly of the Ceylon Civil Service on chargesheet RIO of 19.4.1 97 2. After due inquiry, the Inquiring Officer foundthe applicant guilty of the charges and the applicant's services wereterminated by R1 1 of 27.8.1973 with effect from 23rd February1 972, the date of his interdiction.
The applicant on 27.9.73 filed an application in the Labour Tribunalalleging that the termination of his services was unjust, unwarrantedand unlawful and prayed for-
reinststement with back wages; and
compensation or gratuity.
The respondent Corporation led evidence to the effect that: theapplicant was the only Storeman working at the spare parts store ofthe Corporation and worked under one L. Perera; an internal auditexamination of these stores had revealed that one hundred and nineball racers were missing from the stores; an examination of some ofthe requisitions by which the ball racers were withdrawn from thestores, disclosed that copies of those requisitions R3A-R3D andR4A-R4D retained at the stores had been altered to show largeramounts than in fact had been issued; this fact was revealed by acomparison with the other copies of the same requisitions which werenot retained at the stores; the Examiner of Questioned Documentsexpressed the opinion that some of the relevant entries were in thehandwriting of the applicant.
The learned President has in his judgment stated that it is notpossible for him to hold that the respondent Corporation hadsatisfactorily discharged the burden of establishing the chargesagainst the applicant and ordered that the applicant be reinstated withimmediate effect and to pay him a sum of Rs. 8,000 as back wagesfor the period of non-employment or in lieu of reinstatement to pay hima sum of Rs. 6.000 as compensation in addition to the back wagesordered. It is from this judgment that the respondent Corporation hasappealed.
CA
Ceylon Ceramics Corp. v. Premadasa (H. A. G. De Silva. J.)
289
The learned President has come to strong findings of fact and thesewere not canvassed before us. Learned counsej for the respondentCorporation relied only on the learned President's failure to considerthe fact that the applicant's services had been terminated during hisperiod of probation and as such, so long as the termination was bonafide, it need not be for cause. He cited the case of Richard Pieris & Co..Ltd. v. Jayatunge (1) where it was held that-
"if the employer could terminate the services of the workman atthe end of the term of probation without good cause, there is noreason why the same principle should not apply when his servicesare terminated during the period of probation. There is norequirement under the law that an employee should be forewarnedorally or in Writing so that he may adjust himself to the requirementsof his service. The very word 'probation' implies that he is on trial."
According to the Concise Oxford Dictionary, probation means the"testing of-conduct or character of a person". W. E. M. Abeysekera inhis treatise on Industrial Law and Adjudication, Vol. II states at page693- .
"A contract of employment may either consist of a stipulation thatthe employee will be on probation for a period of time, (usually 6months to one year), or consist of none such. During the period oftime so stipulated, the employer has the right to terminate theservices of the probationer provided the decision is bona fide. InVenkatachcharya v. The Mysore Sugar Co., Ltd., the Court held thata probationer dismissed within the period of probation could makeno grievance of it. In Dhingra v. The Union of India the Courtobserved that 'a service on probation means that the servant so
appointed has been taken on trialIn the case of appointment to
a permanent post in Government Service on probation or on anofficiating basis, the servant so appointed does not acquire any
substantive right to the post and consequently cannot complain
if his service is terminated at any time'."
It is now well settled law that the services of a probationer can beterminated, if his services are not considered satisfactory. It is truethat the learned President has not adverted to this aspect in hisjudgment but this aspect does not appear to have been urged bycounsel for the respondent Corporation before the Labour Tribunal. In
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Sri Lanka Law Reports
[1986] I SriL.R.
the answer filed by the respondent Corporation the fact that theapplicant's services were terminated during his period of probationhas not been averred as a ground justifying termination. It only aversthat the- respondent Corporation has no longer confidence in theapplicant.
At the inquiry when the evidence of D. N. Weerasinghe. the InternalAuditor of the respondent Corporation was led it was elicited that inthe letter of appointment of the applicant, R8, there is a clause statingthat the applicant is on a period of probation for one year and that hisinterdiction by R9 was during this period of probation. The writtensubmissions of the respondent Corporation submitted to the LabourTribunal contains no submission on this aspect of the case. Thissubmission appears therefore to have been made for the first time inthe petition of appeal and at the hearing of this appeal.
Since this is a point of law that is being raised I do not think therespondent Corporation would be precluded from raising it at thisstage and further as it has been adverted to in the petition of appealthe applicant would not have been taken by surprise.
According to the facts of the instant case, we find that the applicantwas appointed as a Storeman by R8 w.e.f. 1st April 1971 on oneyear's probation and his letter of appointment stated that theapplicant's services could be terminated with one week's notice if hiswork was found unsatisfactory. He was interdicted w.e.f. 23 February1972, i.e. during his period of probation (R9). His services wereterminated by R1 1 dated 27.08.1973 w.e.f. 23.02.1972, viz: thedate of interdiction. Even if the date of termination is taken as27.08.1973, he still would be on probation especially as he is oninterdiction. In Hettiarachchi v. Vidyalankara University (2) it was heldthat —
"a person appointed to a post on probation cannot claimautomatic confirmation on the expiry of the period of probation,unless the letter of appointment provides that the appointee shall^ stand confirmed in the absence of an order to the contrary. If aprobationer is allowed to continue on probation after the period hasexpired, he continues in service as a probationer".
CACeylon Ceramics Corp. v. Premadasa (H. A. G. De Silva, J.)291
How much more so then, if the appointee is under interdiction? Thefact that a charge sheet was served and a domestic inquiry held wouldestablish; in my-view, the bona fides of the employer. Further theemployer'has stated that he nas no longer any confidence in theapplicant. In these circumstances, I have no alternative but to holdthat the submission of learned counsel for the respondent Corporationmust succeed and that the services of the applicant have beenterminated not unlawfully or unjustifiably being during his period ofprobation. I would therefore set aside that part of the learnedPresident's judgment'where he orders the reinstatement of theapplicant with back wages of Rs. 8,000 or to pay him a sum of Rs.
as compensation in addition to the back wages ordered in lieuof reinstatement. The appeal is allowed and the application to theLabour Tribunal stands dismissed. Each party will bear his own costsof this appeal and of the Labour Tribunal inquiry.
DHEERARATNE, J.-l agree.
Appeal allowed.