The Board of Governors for Zahira College v.
Naina Mohamed alias Naina Lebbe
THE BOARD OF GOVERNORS FOR ZAHIRA COLLEGE
v.NAINA MOHAMED ALIAS NAINA LEBBE
SUPREME COURTG. P. S. DE SILVA, CJ.,BANDARANAYAKE, J. ANDWEERASEKERA, J.
S.C. APPEAL NO. 62/98L.T. NO. 13/673/92WITH S.C. APPEAL NO. 66/98APRIL 28, 1999
Industrial dispute – Termination of services for misconduct – Payment of com-pensation notwithstanding the fact that the termination of services was justified.
A large number of students forcibly entered the office of the Principal,Zahira College, during school hours. They behaved in an unruly and boisterousmanner and coerced the Principal to issue a letter withdrawing a letter issuedearlier by the Principal requiring certain teachers to vacate the hostel. While allthis was happening the applicant-respondent, a teacher at Zahira College, wasstanding near the Principal. He did nothing to dissuade the students from behavingin the way they did. He was found guilty of misconduct and dismissed from serviceby the employer-appellant (the Board of Governors of the College). The LabourTribunal dismissed the application against the termination of services.
The applicant-respondent's presence and his inaction at the incident betweenthe Principal and students can be reasonably constrained as supportiveof the unruly behaviour of the students. Hence, he was guilty of misconduct.
In the circumstances of the case before the Court, the applicant-respondentwas not entitled to compensation notwithstanding the fact that thetermination of his services was justified.
Case referred to:
1. Saleem v. Hatton National Bank Ltd. (1994) 3 Sri LR 409 distinguished.
Sri Lanka Law Reports
 2 Sri LR.
APPEAL from the judgment of the High Court.
Shirty M. Fernando, PC with J. K. Azoor and B. D. V. Dias for employer-appellant.(SC Appeal No. 66/98).
R. E. Thambiratnam with N. Raviraj for applicant-respondent.
Cur. adv. vult.
May 27. 1999.
G. P. S. DE SILVA, CJ.
Naina Mohamed (the applicant-respondent in SC Appeal No. 62/98)was a teacher at Zahira College, Colombo. His services wereterminated by the employer-appellant (the Board of Governors ofZahira College) with effect from 27.9.91. He made an applicationto the Labour Tribunal stating, inter alia, that the termination ofhis services was wrongful, unlawful and unjustified and sought reliefby way of reinstatement in service. The employer in its answertook up the position that the applicant was found guilty of severalacts of indiscipline and/or misconduct as set out in the showcause letter P1, and that, therefore, the termination of services was“perfectly lawful, just and equitable". After inquiry, the Labour Tribunaldismissed the application. The applicant preferred an appeal tothe High Court which refused relief by way of reinstatement, butordered compensation in a sum of Rs. 250,000 in lieu of reinstatement.Both parties have preferred appeals to this Court, the employerseeking to quash the order for compensation (SC Appeal No. 62/98)and the applicant seeking an order for reinstatement with back wages(SC Appeal No. 66/98).
The applicant who was a teacher at Zahira College was dismissedfrom service consequent upon an incident that took place in the officeof the Principal of the school on 19.9.91. The evidence led on behalfof the Board of Governors of Zahira College established that about75 to 100 students forcibly entered the office of the Principal at about
am during school hours. The students were behaving in anunruly and boisterous manner shouting at the Principal asking himto issue a letter withdrawing the letter issued earlier by the PrincipalRequiring certain teachers to vacate the hostel. Some of the studentswere seated on the chairs meant for visitors and some were having
SCThe Board of Governors for Zahira College v.
Naina Mohamed alias Naina Lebbe (G. P. S. de Silva, CJ.) 311
magazines in their hands while shouting at the Principal. The applicantNaina Mohamed was standing near the Principal's table while thestudents kept on shouting at the Principal. Ultimately, the Principalwas compelled to issue the letter demanded by the students. Thestudents, thereafter, left the office of the Principal. These facts werespoken to by witnesses who were called on behalf of the Board ofGovernors of the Zahira College. The testimony of these witnesseswas accepted by the Labour Tribunal.
The applicant Naina Mohamed gave evidence and took upthe position that he was nowhere near the Principal's office at thetime of this incident; that he was in fact conducting a class, forthe "Ordinary level repeat students". The Labour Tribunal, however,rejected the testimony of Naina Mohamed. The reason given bythe Labour Tribunal for rejecting the evidence of Naina Mohamedwas that if his position was that he was in fact engaged in teachingat the time of the incident he should have so stated in his"letter of explanation" given in response to "the show cause notice".Thefailure to mention this all-important fact is a matter which undoubtedlyaffects his credibility and the Labour Tribunal cannot be faulted forrejecting his testimony. A belated affidavit given by the Vice-Principalin support of the applicant's position that he was far away from thePrincipal's office at the material time is of hardly any probative value.There is little doubt that the evidence led on behalf of the employerclearly established the presence of Naina Mohamed inside the officeof the Principal (near the Principal's table) while 75 to 100 studentswho had forcibly entered the office of the Principal were behavingin a most unruly manner. Faced with this deplorable situation, NainaMohamed should have acted promptly in a manner that becomes aresponsible member of the teaching staff of the school. It was hisclear duty to have attempted to dissuade the students from behavingin the way they did. He made no attempt to bring the situation undercontrol by directing the students to get back to their class-rooms. Hissilence and his inaction in the proved circumstances of this case tellheavily against him. A teacher in a school has a special responsibilityto maintain discipline. The High Court has taken the view that hismere presence cannot be construed as "a participating presence" andtherefore he was not guilty of misconduct. The proceedings beforethe Labour Tribunal are not criminal proceedings and concepts relevantin the area of the criminal law have been misapplied in the#circumstances of this case. In any event, his presence in the Principal's
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office and his manifest inaction in a critical situation where a mobof 75 to 100 students have surrounded the Principal would sufficeto make him totally unfit to remain as a teacher in the school. Ateacher, after all, occupies a special position in maintaining order anddiscipline in a school. In my view, his presence and his inaction canbe reasonably construed as supportive of the unruly behaviour of thestudents. I, accordingly, hold that the finding of the Labour Tribunalthat the charge of misconduct has been proved is in accord with theevidence and is reasonable.
When the matter came up in appeal, the High Court proceededto award a sum of Rs. 250,000 as compensation to the applicant inlieu of reinstatement. Although an award of Rs. 250,000 was madein favour of the applicant, it is very relevant to note that there wasno finding by the High Court that the termination of the applicant'sservices was unjustified. In awarding compensation to the applicant,the High Court relied heavily on the judgment in Saleem v. HattonNational Bank Ltd.m In relying on Saleem's case for the award ofcompensation to the applicant, it seems to me that the High Courthas completely misunderstood that judgment. That was a case wherethe Manager of the Badulla Branch of the Hatton National Bank wasdismissed from service “on account of the loss of a sum of Rs. 100,000of reserve money from the vault of the bank". The Court of Appealdismissed the workman's appeal and this Court granted special leaveto appeal on the following limited questions : "Notwithstanding thefinding of the Court of Appeal that the termination of the appellant'sservices is justified, is the appellant in any event entitled to thepayment of compensation?". In awarding compensation Kulatunga, J.took into account the special and exceptional circumstances of thecase. The appellant's services 'were not terminated for any act ofdishonesty; he made a prompt report of the loss to his superiors andmade a complaint to the police; he had an unblemished record ofservice from 1970 to 1985. after a very careful consideration of theseveral decisions relating to the award of compensation Kulatunga,
expressed himself in the following terms:
"On the question whether the appellant deserves compensation
I am of the view that there are special'circumstances which would
SCThe Board of Governors for Zahira College v.
Naina Mohamed alias Naina Lebbe (G. P. S. de Silva, CJ.) 313
make it just and equitable to order such relief. Besides the con-siderations which have been urged by counsel for the appellantit is relevant to note that the employer has dismissed both theappellant and the second officer. This, then is a case of sharedresponsibility even though, as the Manager of the Bank, the appellantmust accept primary responsibility for the loss. He was negligentbut as rightly submitted by counsel, no dishonesty has been allegedagainst him and it is just one of those mistakes a human beingis liable to make in a life time. I hold that the appellant is entitledto the payment of appropriate compensation in' the circumstancesof this case and having regard to his unblemished record ofservice." at page 419. (emphasis added).
It is manifest that the judgment in Saleem's case (supra) cannotpossibly form the basis of an award of compensation to the applicantin the case before us. The evidence clearly shows that the applicant'sconduct was totally unworthy of a member of the teaching staff ina school. His conduct was subversive of discipline in the school.
For these reasons the appeal (SC No. 62/98) is allowed, thejudgment of the High Court dated 18.3.98 is set aside and the orderof the Labour Tribunal dated 21st April, 1997, is restored. The crossappeal No. 66/98 is dismissed. I make no order as to costs.
At the hearing before us it was agreed by counsel for both partiesthat the judgment in this appeal would be binding on the partiesto the connected appeals, SC Appeals No. 63/98, No. 64/98 andNo. 65/98. I make order accordingly.
BANDARANAYAKE, J. – I agree.
WEERASEKERA, J. – I agree.
Employer-appellant's appeal allowed.
Respondent-workman's appeal dismissed.
THE BOARD OF GOVERNORS FOR ZAHIRA COLLEGE v. NAINA MOHAMED ALIAS NAINA LEB