(1991) 1 Sri L.R.
Sri Lanka Law Reports
SAMARAKOON BANDAV.BOARD OF DIRECTORS, CO-OPERATIVE WHOLESALEESTABLISHMENTSUPREME COURT,
AMERASINGHE, J. &
S.C. APPEAL NO. 18/88,
S.C. SPL. L.A. NO. 141/87,
C.A. APPEAL NO. 404/82,
L.T. NO. 1/ADDL. 2523/79,
APRIL 05, 1991.
Industrial Dispute – Poetical activity Of employee contrary to Rules – Condonation -Compensation.
The appellant had taken part in political activities in favour of the Sri Lanka FreedomParty (SLFP) contrary to the Rules of a circular operative at the Co-operativeWholesale Establishment where he worked but no action was taken against him solong as the SLFP was in power. After the 1977 elections when the Governmentchanged, charges were framed against him and he was dismissed.
The employer was aware of the political activities of the appellant yet kept him inservice with knowledge of his misconduct during several years and condoned hiswrongful activities so long as the SLFP were in power. It was not open to the Board,on a change of Government, retrospectively to enter upon a reconsideration of thematter and arrive at a totally different conslusion. The hatchet once buried should notbe unearthed again and again. The appellant should be compensated tor the financialloss.
Per Amerasingha J – “The characterization of the appellants conduct by the new Boardas behaviour that brought discredit to the employer and being in breach of trust wasno more than a subterfuge to justify the dismissal of the appellant and to avoidcondemnation and censure. One does need to be astute or remarkably sagacious tosee really why the appellant's services were terminated. Victimization may be a simpleyet accurate way of explaining the reason for his dismissal."
Case referred to:
1. State V. Mansinghrao AIR 1958 Madya Hadest 413, 415APPEAL from judgment of the Court of AppealL V.P. Wettasinghe for the petitionerH.M.P. Herath for the respondent.
Samarakoon Banda v. Board of Directors, Co-operative Wholesale
Establishment (Amerasinghe, J.)
05 April 1991AMERASINGHE , J.
The appellant was employed by the respondents in 1971 as aPersonal Assistant to the General Manager (Administration). He servedas a Management Trainee from 1 February 1975 and was confirmedas a Manager with effect from 1 February 1976.
In terms of the rules set out in a Circular issued by the GeneralManager of the Co-operative Wholesale Establishment, (CWE), in1967, staff grade officers were prohibited from participating in certaintypes of political activity.
The appellant had engaged in political activities before he became astaff grade officer in 1976 and continued to do so after he became astaff grade officer. Among other things, he had as a Branch Secretaryof the Sri Lanka Freedom Party signed notices informing membersof the public that the Minister responsible tor the CWE would presideat certain meetings of the party. Although, as toe President of toeLabour Tribunal observed in his Order, the employer “could not havebut known that toe workman was employed in politics during toe period1975 to 1977“, no action was taken against him for acting incontravention of the rules.
Following toe defeat of the Sri Lanka Freedom Party at toe GeneralElections in July 1977, there was according to the President of toeLabour Tribunal, “a change in the administration of the employerestablishment."
On 1 August 1977 toe appellant was sent on compulsory leave andon 12 September 1977 he was interdicted. In October 1977 he wasissued with a Charge Sheet alleging that by participating in politics,the appellant had “breached the administrative regulations of theEstablishment", and that by convening political meetings and by hisactivities in toe Kolonnawe Electorate (toe electorate of toe Ministerresponsible for toe CWE), toe appellant had brought the CWE “intothe public discredit* (sic.) and that he had not only brought toe CWEinto discredit, but also “betrayed the trust* placed in him by hisemployer and thereby "forfeited the right to continue as an employeeof the Establishment.*
Sri Lanka Law Reports
(1991) 1 Sri LR.
An inquiring officer appointed by the employer found the appellantguilty of these charges. When these matters were communicated tothe Board together with the recommendation of the Assistant GeneralManager Administration that the appellant should be dismissed (BoardPaper 300/79 marked as R 13 in the Court of Appeal Brief), the Boardof the CWE decided to dismiss the appellant (R 14).
After hearing the appellant's complaint and the explanation of theCWE, the President of the Labour Tribunal on 31 May 1982 held"since no action was taken against him, the employer must be deemedto have condoned the acts of the workman. Even if the employer wasunaware of this fact, termination of services was too drastic apunishment. The termination of the workman's services was, accordingto the President of the Labour Tribunal, “therefore unjustified." Statingthat tiie appellant was entitled to relief, the President of the LabourTribunal ordered that it was in his opinion "just and equitable" thatthe workman should be re-instated without break in service with threeyears back wages or in the alternative that he be compensated forwrongful termination by payment of a sum equivalent to five yearssalary.
On 18 September 1987 the Court of Appeal set aside the decisionof the President of the Labour Tribunal. Having spent much time indeciding a matter that was not in issue, namely whether therespondent in that Court was a "workman" within the meaning of theIndustrial Disputes Act, the Court of Appeal, without explaining why,arrived at the conclusion that there was no evidence of condonationand quashed the Order of the President of the Labour Tribunal. Withgreat respect, being laconic may sometimes be admirable but neverwhen it makes brevity as in this case, the cause of injustice.
The employer was, in my view, aware of the political activities of theappellant, yet kept him in service with knowledge of his misconductduring several years and condoned his wrongful activities. The factthat the SLFP, for whose benefit the appellant acted in breach of therules, held tire reins of Government at the time did not make hisactivity less wrongful from the employer's point of view. But it wasconduct that was at less pardoned, if pardon were necessary forconduct which might at that time have not only been acceptable butalso welcomed and perhaps even praised and encouraged. Those whoby succession, later came to have a different view, because they were
CASamarakoon Banda v. Board of Directors, Co-operative Wholesale
Establishment (Amerasinghe, J.)389
more conscious of their duties or simply because they belonged to adifferent political party, could not in my view, retrospectively enter upona reconsideration of the matter and arrive at a totally differentconclusion. As observed in State v. Mansinghrao (1) "the hatchet onceburied, should not be unearthed again and again."
Mr. Wettasinghe urged that the order of dismissal was harsh andexcessive and that although the President of the Labour Tribunal haddescribed the response of the employer as being "too drastic apunishment", this aspect of the matter had been ignored by the Courtof Appeal.
Wilful, deliberate and intentional disobedience of orders (whether theybe specific and personal orders addressed to and applicable toparticular individuals, or general orders applicable to an ascertainableclass of persons which, for reasons of convenience, are set out inrules, regulations, standing orders, circulars, printed notices and so on)could, in certain circumstances, justify the dismissal of a workman.Each case must depend upon circumstances of equity and itssubstantial merits. Although the Charge Sheet in this casecharacterized the appellants conduct as having brought the CWE into"public discredit" and amounting to a "betrayal of trust" reposed in him,
I do not think he did anything of the kind. The Board Paper on thebasis of which he was dismissed (300/79) R13, clearly suggests thatthe conduct of the appellant became blameworthy only because andafter he became a staff grade officer. Anything that would havebelonged to the undoubtedly objectionable class of bringing discreditto the. institution or being in breach of trust must surely have beenindependent of the temporary status of the appellant? Wanting inprescience, the appellant supported the Sri Lanka Freedom Party andthe Minister in charge of his establishment who belonged to that party.At that time neither he nor his Board of Directors required him tounscramble the conflicting duties he owed in terms of the Circular andto his Minister. The general election brought a rival political party intothe seat of Government and a new Board into the CWE. The appellanthad then to face the consequences of his misjudgment. That is whathappened. The characterization of the appellant's conduct by the newBoard as behaviour that brought discredit to the employer and beingin breach of trust was no more than a subterfuge to justify thedismissal of the appellant and to avoid condemnation and censure.One does not need to be astute-or remarkably sagacious to see really
Sri Lanka Law Reports
(1991) 1 Sri LR.
why the appellant's services were terminated. Victimization may be asimple yet accurate way of explaining the reason for his dismissal.
For the reasons stated, I am of the view that the appellant was unfairlydismissed and the judgment of the Court of Appeal is set aside. Theappellant should be compensated for the financial loss caused by theemployer's wrongful decision to dismiss him. I order that five yearssalary (Rs. 720 x 12 x 5) with legal interest from 31 May 1982 (whichis the date of the Order of the President of the Labour Tribunal), upto and including the date of this Order, namely, 5 April 1991, (changesof legal rates of interest if any during the period referred to being takeninto account), be paid by the Co-operaive Wholesale Establishmentto the appellant. The amount so determined shall be deposited with4he Commissioner of Labour, on or before 31 May 1991. The amountso deposited with toe Commissioner of Labour may at the appellant'srequest be with drawn by the appellant.
The appeal is allowed with costs fixed at Rs. 5500.
BANDARANAYAKE, J. – I agree.
DHEERARATNE, J. – I agree
SAMARAKOON BANDA v. BOARD OF DIRECTORS CO-OPERATIVE WHOLESALE ESTABLISH