566 SAKSONI, J.—Ceylon Transport Board v. Bamastha Lanka Motor Bswoka
Ptwmt: Saasaoi, J,CEYLON TRANSPOET BOARD, Appellant, and SAMASTLLALANKA MOTOR SEW AKA SAMITHIYA, RespondentS. G. 31 of 1961—Labour Tribunal, 1(4118
Industrial Disputes Act—Dismissal of workman by employer—“ Just andequitable ”—“ Discriminatioii
A -workman employed by the Ceylon Transport Board was dismissed because hehad broken a rule which provided that any employee -who removed a vehiclebelonging to the Board, either without authority or without a driving licence,would be dismissed.
Held, (i) that the punishment of dismissal was nob too severe. In consideringwhether an order of dismissal is “just and equitable ”, the judicial discretion mustbe exercised reasonably and not arbitrarily.
(ii) that the fact that, about a year later, the Board did not dismiss, but merelytransferred and warned, another employee for a similar offence was not proof ofdiscrimination against the workman in the present case.
'PEAL from an order of the President of a Labour Tribunal.
A. Mahendrarajah, with P. Nagendra, for the Employer-Appellant. 1
A. S. Wijetunge, for the Applicant-Respondent.
Cur. adv. wit.
July 26, 1962. Sanso^I, J.—
This is an appeal by The Ceylon Transport Board from the order ofthe President of a Labour Tribunal directing that a workman, who hadbeen dismissed, be reinstated with back wages.
The workman concerned was an apprentice mechanic who had beenabout 2 years and 9 months in service. He was dismissed because hehad broken a rule which provided that any employee who removed avehicle belonging to the Board, either without authority or without adriving licence, would be dismissed. It was found that this workmanhad taken a bus belonging to the Board ont of the Piliyandala Depotand driven it a distance of about 3/4th mile without permission, and whenhe had no certificate of competence to drive a motor vehicle. The bushad gone off the road, whereupon the workman returned to the Depotand took a breakdown van to tow the bus back to the Depot.
Before the Tribunal it was submitted that the punishment of dismissalwas too severe, and also that the Board had been guilty of discriminationin dismissing the workman. There is no reference in the order to theseverity of the punishment, perhaps because it was not pressed. It canhardly be argued that a breach of the rule in question, which has beenframed in order to protect the property of the Board frons damage andin the interests of other users of the road, dose not warrant dismissal-
SAJSTSONI, J.—Ceylon Transport Board v. Samastha Lanka Motor Sewaka 567
What the President had to consider under the Act was whether theorder of dismissal was “ just and equitable This involved the exerciseby him of a judicial discretion ; but seeing that the workman had brokena very salutary rule framed in the interests of discipline and the safetyof the public, I should have been surprised if he came to the conclusionthat the order of dismissal was unreasonable or excessive. A judicialdiscretion must be exercised reasonably and not arbitrarily.
The submission that the Board was guilty of discrimination was basedon something that happened about a year later. An assistant Foremanattached to the same Depot drove a bus without authority and withoutpossessing a driving licence. He was not dismissed, but he was trans-ferred and given a final warning. I need only remark that he seems tohave benefited by misplaced sympathy: The President of the Tribunal,however, has held that the case of the Assistant Foreman was proof ofdiscrimination against the apprentice mechanic who was dismissed.In support of this finding he has cited a passage from Volume 2, page 845of Labour Disputes and Collective Bargaining by Ludwig Teller whichreads: “ The credibility of ah employer who invokes a company ruleas the basis for a discharge is impaired by evidence of uneven applicationof the rule or the anti-union origin thereof. Thus an employer’s invokingof a company rule as a ground of discharge will constitute evidence ofan intent to discriminate where prior infractions of the rule wentunnoticed.”
It seems to me that this passage has no relevance in the present case,for it does not depend on the credibility of an employer, nor was theAssistant Foreman’s case prior to the present case. With respect, Ithink the President misunderstood the passage which I have quoted,and thereby convinced himself that he had no option but to orderthat the workman be reinstated.
I can only interfere in this appeal on a question of law. The Presidenthas, in my opinion, -misdirected himself in law by thinking that thepassage quoted applied to the present case. His decision is based on amisconception of what constitutes discrimination, and is thereforeerroneous in point of law.
I allow this appeal and direct that the order of dismissal of the employeebe restored.
CEYLON TRANSPORT BOARD, Appellant, and SAMASTHA LANKA MOTOR SEWAKA SAMITHIYA, Re