SHANMUGAM AND OTHERS
v.ALERIC ICE CREAM MANUFACTURERS AND OTHERS
COURT OF APPEAL.
L.T. 13/9366 TO 9370/81,
NOVEMBER 21. 1889.
Industrial Dispute – Termination on unproven charges – Requirement of consideration ofexplanation ■ Arbitrary action by employer.
On returning from the Gamudawa Festival after selling ice cream at the Aleric Ice CreamStall the appellants were found by the employer to have made a detour and drinking sweettoddy. Their services were terminated on ground of —
diverting to a different route to drink liquor;
spending extra petrol, and time;
using vehicle for private purposes.
There was no proof of drunkenness or that the diversion of route was for drinking liquor.No opportunity for explanation was given and the employer was not prepared to acceptwhatever explanation was given. This is arbitrary action by the employer. Hence thetermination of employment was not justified.
APPEAL from judgment of President, Labour Tribunal.
L. V.P. Wettasinghe for appellant.
R.C. Gunaratne for respondent.
Cur. adv. wit.
January 15, 1990.
The three appellants were manning the Aleric Ice Cream stall at theGamudawa Festival at Tissamaharama in June 1981. At the conclusionof the festival they were entrusted with equipment valued at Rs. 40,000and were required to take the lorry in which it was loaded to Colombo.
The appellants with two other employees were met by the employerand his wife on the Tanamalwila Road a short distance from the festivalsite drinking sweet toddy. The employer took a serious view of the matterand terminated their services on the charges –
of being found drunk on Tanamalwila Road;
not going along the Matara Road but diverting to drink liquor;
spending extra petrol and extra time;
using the vehicle for private purpose.
It was submitted by counsel forthe appellants that the evidence did notsupport the more serious charge of being found drunk. It was submittedfurther that the other charges were not serious enough to warrant adismissal from employment.
These two legal grounds were urged.
There was a misdirection in the assessment of the facts whichamounted to an error of law;
CAShanmugam and Others v. Aleric Ice Cream Manufactures and Others13
The punishment was excessive and not sustainable underindustrial Law.
The tacts as outlined at the inquiry may be briefly set out thus. Thethree appellants with two others against whom the charges were notpursued had at the end of the festival gone to collect items of clothingbelonging to one of them at a place close by on the Tanamalwila Road.They had met a cyclist carrying a pot of sweet toddy and being drawn intotemptation had sat on the roadside and partaken of the drink. At this stagethe employer and his wife were driving along that road and met theemployees and proceeded to take disciplinary steps on the charges setout above.
Counsel for the appellants drew specific attention to the evidence ofthe employer Victor Wimalaratne. Inthe course of his evidence before thetribunal he admits that the charge of going on another road to drink cannotbe established. In his own words he says ‘ I do not say that the applicantswent on Tanamalwila Road to drink' and hence that charge too is wrong.He further states that it may be possible that the three of them could havediscussed the matter, but he did not find out whether it was true or false.He has stated to the tribunal that whatever explanation the employergavehe was not prepared to accept.
Counsel for the appellant states that these statements clearly showthat the employer had acted arbitrarily and further submits that noopportunity was given to the employees to explain their position at adomestic inquiry. The employer himself has said that there was no needfor him to know what explanation they had to give. I would agree that thisis capricious conduct having regard to proper employer-employeerelationship.
With regard to charge one- viz. found drunk on Tanamalwila Road inthe context of taking a lorry load of equipment to Colombo fromTissamaharama one would expect such a charge to be supported bysome proof of drunkenness to a degree which would impair the ability tocarry out their duty without risk of damaging the equipment. It was notcontested that what they we re consuming was sweet toddy. Nor was itestablished that any one of them was in such a state of inebriation as tobe unable to drive the vehicle or protect the equipment. It was furthershown in evidence that the equipment was safely brought to Colombo asrequired by the employers.
The employer had overreacted to a situation which in his view was aserious matter. But the learned President in the exercise of his equitablejurisdiction and arbitral powers has in my view erred in holding thattermination of services in the circumstances was justifiable.
I would therefore set aside the order of the learned President and orderreinstatement with back wages till the date of the order of the labourtribunal and the employer may reimburse himself by way of a fine thevehicle hire for the distance covered from Tissamaharama to the houseof the relative whom the employee visited to obtain his clothes. There willbe no costs of this appeal.
SHANMUGAM AND OTHERS v. ALERIC ICE CREAM MAUFACTURERS AND OTHERS