Associated Newspaper* of Crytork jJd. r. Notional Kmployees' rnion 60
1968 'Present: Siva JSupramanlam, J,THE ASSOCIATED NEWSPAPERS OF CEYLON, LTD., Appellant,and THE NATIONAL EMPLOYEES’ UNION (on behalf ofG. H. R. Suuiripala), Respondent8. C. 75 of 1967—fxtbour Tribunal Case 1(19723
Labour Tribunal—Misdirection tn law—Failure of President to consider all theevidence placed before him—Wrongful termination of a workman’s services—Reinstatement in service is not compulsory in every instance—IndustrialDisputes Act, ss. SIB, 31D (2), 33 (6).
In an application under section. 31B of the Industrial Disputes Act forrolief in respect of the termination of a workman's services on the ground ofmisconduct—
Held, (i) that the statements filed by the parties in applicatons before aLabour Tribunal are not pleadings in a oivil action and it is the duty of thePresident to consider all the facts relative to the dispute plaoed in evidencebefore him at the inquiry even though those facts may not be expressly referredto in the statements.
(ii) that it would be a misdirecton in law if a Labour Tribunal holds-that ifthe termination of a workman's services cannot be sustained, there is noalternative but to order his reinstatement in servioe. "Section 33 (6) of theIndustrial Disputes Aot expressly authorises a Labour Tribunal to orderpayment of compensation as an alternative to reinstatement in appropriateoases.
?0 XtVA SOPRAMAKIAM, J.—Associated Newspapers of Ceylon. Ltd. r.
National Employees' Union
A.PPEAL from an order of a Labour Tribunal.
8. Natl Man. Q.C.. with D. 8. Wije wardc.no. for the respondent-appellant.
K. Thevaraja. for the applicant-respondent.
Car. adv. vult.
June 12, 1968. Siva Supramanjam, J.—
The appellant is a newspaper company, in the Despatch Departmentof which one Susiripala had been employed as a labourer. On 1stDecember 1963 the Police arrested Susiripala and some other employeesof the company in the act of gambling outside the premises of the companyand prosecuted them in the Municipal Magistrate’s Court. Susiripalapleaded guilty to the charge. Thereupon the company called upon himto show cause why disciplinary action should not be taken against himfor grave misconduct (R.3). He denied having gambled (R.4), despite thefact that he had pleaded guilty to that charge in Court. His attentionwas then drawn to the fact that he had been found guilty by the Courtand fined. He was again^required to show cause why his services shouldnot be terminated for misconduct (R5). His explanation (R6) wasconsidered unsatisfactory and he was informed as follows (R7) :—“ It is accordingly proposed to terminate your services as from 7thFebruary in view of your conviction by the Courts of the offence you
have been charged withunless you have any further cause to
show before that date. *’ He submitted a further explanation (R8)which too was considered unsatisfactory and he was informed as follows(R9) :—“ Although the offence committed warrants dismissal it hasbeen decided to terminate your services with immediate effect. Youwill be paid in full for February 1964 and also a month’s wages andallowances in lieu of notice plus two months’ wages ex gratia”
The respondent-union of which Susiripala was a member then filedthe present application before the Labour Tribunal under S. 31B of theIndustrial Disputes Act No. 43 of 1950 (hereinafter referred to as the Act)seeking, inter alia, reinstatement of Susiripala along with the paymentof back wages. The President of the Labour Tribunal by his Orderdated 3rd July 1967, ordered, among other reliefs, reinstatement ofSusiripala but without payment of back wages.
The Company has appealed from that order. Under S. 31D (2) of theAct, an appeal lies to this Court only on a question of law. It is submittedon behalf of the appellant that the order should be set aside in viewof certain misdirections in law on the part of the learned President.
SIVA SUPUA3IAXIAM, J.— Associated Sews papers of Ceylon, Ltd. r. 71
National Employees’ Union
. According to the evidence., shortly before Susiripala was arrested bythe Police and convicted in Court on the charge of gambling) the Companyhad issued a notice to its employees in connection with gambling (Rl).The notice stated that complaints had been received in regard to gamblingby the Despatch Department staff on the road ouside the premisesduring their meal interval but during the period of their duty hoursand warned the staff against the continuing or indulging in such activityand that “very severe disciplinary action will be taken against anymembers of the staff detected and reported as having indulged in suchillegal activity
The learned President in the course of his order stated : ' There doesnot appear to be much doubt that gambling was endemic in theworkplace. Indeed, the applicant admitted that on several occasions thecompany has had to take minor disciplinary action against workmen forgambling.” In considering, however, whether Susiripala was guilty ofmisconduct, the learned President treated the notice referred to abovens containing a set of “ rules ” and held that the Company would havehad the right to punish him only if he had acted in contravention of those“rules”., He found that as the “rules” prohibited gambling onlyduring the period of duty hours ” any gambling outside these hoursw ould be “ permitted conduct ” and that as the charge on which Susiripalahad been convicted related to gambling when he was not on duty hehad committed no offence which rendered him liable to disciplinaryaction.
In support of his view that the misconduct of w hich Susiripala hadbeen found guilty related to only what was prohibited in the notice,the learned President relied on paragraph 4 of the statement filed bythe Company which was in the following terms :—
“ The Company submits that the conduct of the said worker inopenly defying the Company’s warning constitutes a serious breach. of the Company’s regulations and that under the circumstances relevantto the matter and the maintenance of proper discipline amongst thewotkers in the Despatch Department the termination of the saidworker was just and reaisonable.”
The statements filed by the parties in applications before a LabourTribunal are not pleadings in a civil action and it is the duty of thePresident to consider all the facts relative to the dispute placed in evidencebefore him at the inquiry even though those facts may not be expresslyreferred to in the statements.
The learned President was clearly in error in construing the noticeas containing a set of rules by which alone the workmen would be boundand holding that any conduct not covered by the express terms of thenotice was “ permitted conduct In reaching the conclusion that theappellant’s termination of Susiripala’s services was based solely on analleged breach by the latter of the “ rules ” contained in the notice,
72 SIVA S UPK AM AN 1AM, J.—Associated Newspapers of Ceylon, Ltd. v.
National Employees’ Union
the learned President overlooked completely the effect of letters R3, R5,R7 and R9 sent by the Company to Susiripala and his replies R4, R6and R8. None of those letters had any reference to the notice in question.Indeed in the letter R3 the basis on which Susiripala was asked toshow cause ” why disciplinary action including termination of service f’should not be taken against him was the fact that he had beenarrested by the Police for gambling in a public place and that he hadbeen convicted and fined by a Court of law.
The above error of the learned President which was a misdirection inlaw affected his whole approach to a consideration of the dispute betweenthe parties anil is reflected in his conclusion which he set out as follows :—
" So that even if the applicant's conduct would have amountedto a breach of discipline prior to the rules, as from the publicationof the rules such conduct must be regarded as not to be damagingto the Company’s interests since they have not been declared to beoffensive under the circular. Had the Company, when drafting itscircular prohibited not only gambling immediately outside the premisesbut also at all hours of the day or night whether within or withoutworking hours, then under those rules Mr. Susiripala would havereally been guiltyI therefore hold that the termina-
tion of the applicant’s service cannot be permitted to stand.”
In view of the order Lpropose to make, I do not wish to say more onthis aspect of the learned President’s order.
In considering what just and equitable ” order he should make inthe circumstances of the case, the learned President again misdirectedhimself on the law. He said : “ If the termination of the applicant’sservices cannot be sustained, there is no alternative but to order hisreinstatement in service ”. It was submitted by learned Counsel for theappellant with much force that the learned President precluded himselffrom considering other reliefs which could appropriately have beengranted in the circumstances of this case by his erroneous view of thelaw that where the termination was not justified there was no alternativeto reinstatement. In arriving at that conclusion the learned Presidentappears to have overlooked the provision of S. 33 (6) of the Act whichexpressly authorises a Labour Tribunal to order payment of compensa-tion as an alternative to reinstatement in appropriate cases.
The misdirections in law to which I have referred have materiallyaffected the learned President’s conclusions and order in this case. 1set aside the order made by the learned President and direct that theapplication be inquired into afresh by another President.
The appellant will be entitled to its costs in appeal.
Case remitted for fresh inquiry. .
THE ASSOCIATED NEWSPAPERS OF CEYLON, LTD., Appellant, and THE NATIONAL EMPLOYEE