020-SLLR-SLLR-1998-1-CEYLON-BANK-EMPLOYEES-UNION-BANK-OF-CEYLON.pdf
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CEYLON BANK EMPLOYEES UNION
v.BANK OF CEYLON
SUPREME COURTAMERASINGHE, J.,
DHEERARATNE, J. ANDSHIRANI BANDARANAYAKE. J.
S.C. APPEAL NO. 73/97
C. (A) LT. NO. 5/95LT. NO. 23/KU/336NOVEMBER 28TH, 1997.
Industrial Dispute – Labour Tribunal decision – Dismissal of a workman – Variationbetween the charge and the ground of dismissal upheld by the Labour Tribunal.
The applicant (workman) was employed in the Bank of Ceylon, Kuliyapitiya. Hisservices were terminated after a domestic inquiry on the basis that he was guiltyof several charges involving cheating, misappropriation and fraud. The Presidentof the Labour Tribunal exonerated the applicant on every charge of dishonestyand fraud but found him guilty of negligence and held that his dismissal was,therefore, justified.
Held:
There was a lack of judicial evaluation of the material relevant to negligence. Inany event, negligence was not a matter which was within the ambit of the chargelevelled against the applicant. Without giving an opportunity to meet that chargeit would be unsafe to conclude that the applicant was negligent.
Case referred to:
Bank of Ceylon v. Manivasagasivam 1995 – 2 SLR 79.
APPEAL from the judgment of the High Court.
Gomin Dayasiri with Ms. Manoii Jinadasa for the appellant.
Asanga Gunawansa S.C. for the respondents.
Cur. adv. vult.
SC Ceylon Bank Employees Union v. Bank of Ceylon (Dheeraratne, J.) 153
December 17, 1997.
DHEERARATNE, J.
The applicant on whose behalf this appeal is made (the applicant)was employed by the 2nd respondent Bank (the Bank) at the timehis services were terminated and was attached to the 1st respondentKuliyapitiya Branch as a Grade III Class III officer. He had anunblemished record of service counting 19 years with the Bank, untilhe was interdicted on 12.6.1985. It was two and a half years thereafterthat a charge sheet was served on him; and it was over five yearsafter the interdiction that a domestic inquiry against him commenced.On being found guilty at that inquiry of several charges, by letter dated15.7.91 the Bank terminated his services with effect from the dateof interdiction.
The Bank justified the termination of the applicant's services onthe basis that he was guilty of several charges concerning cheating,misappropriation and fraud alleged to have been committed between12.7.1984 to 31.5.1985. I shall examine these charges presently.
The first of those charges was that on 17.12.84, a sum ofRs. 9,500 was withdrawn from the savings account belonging to oneAbeyratne, on a withdrawal form wherein the account holder'ssignature was forged. The applicant had approved the withdrawal,Abeyratne gave evidence at the domestic inquiry but he was notavailable to give evidence at the Labour Tribunal. His positive evidenceat the domestic inquiry was that he signed the withdrawal form. Therewas no loss occasioned to either him or the Bank.
The second charge related to the withdrawal of a sum of Rs. 9,500on 22.4.85 from the savings account of one Ratnawathie. It wasalleged that the signature of Ratnawathie on the withdrawal voucherwas forged, and that the applicant had approved the withdrawal.Ratnawathie was not called to testify and there was not an iota ofevidence to substantiate that the voucher was forged.
The third charge related to the deposit of Rs. 1,000 in the depositaccount of one Indrani Neetha on 20.2.85. It was alleged that theaccount holder gave Rs. 2,000 to be deposited and that the applicant
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misappropriated Rs. 1,000. The evidence of the account holder wasthat she gave only Rs. 1,000 to be deposited to one Wimalasenaa security guard who had correctly deposited that amount to her credit.No misappropriation on the part of anyone was proved.
The fourth charge related to withdrawal of a sum of money byone Jordhi on 12.4.85. It was alleged that the withdrawal voucher wasaltered from Rs. 1,000 to read Rs. 7,000 and a sum of Rs. 6,000was misappropriated. The voucher clearly read seven thousand inwords and the ledger reflected corresponding entry for the withdrawalof a sum of Rs. 7,000. Again no misappropriation on the part of anyonewas proved.
The fifth charge related to the withdrawal of a sum of Rs. 17,000on 17.4.85 and 26.4.85 (Rs. 8,500 each day) from the savings accountof one Emalin on forged withdrawal forms approved by the applicant.Emalin never complained that she was defrauded. The evidencerelating to this transaction came from a co-employee of the applicant,one Sumanawathie, who was charged along with the applicant in MCKuliyapitiya case No. 85784. That evidence was insufficient to bringhome that charge. I may add, purely to put the record straight, thatthe applicant was acquitted in that case.
The sixth charge related to the savings account of one SimonSingho. It was alleged that a sum of Rs. 6,750 was withdrawn on23.1.85 on a forged withdrawal form. A bank employee called Somadasahas admitted that he misappropriated that money. There was nothingto link the applicant with that charge.
It is quite significant that evidence led at the Labour Tribunaldisclosed the fact that the applicant never maintained the ledger andthat he had to approve about 200 to 300 vouchers a day. Havingexonerated the applicant on every charge of dishonesty and fraud,the learned President found the applicant guilty of negligence and heldthat his dismissal was therefore justified. Neither in the charge sheetserved on the applicant nor in the answer filed before the Tribunaldid the employer Bank rely on the applicant's negligence to justifyhis dismissal. That allegation seems to have suddenly sprung up inthe submissions of counsel who appeared for the Bank at the LabourTribunal, as a last-ditch manoeuvre to justify applicant's dismissal.
SC Ceylon Bank Employees Union v. Bank of Ceylon (Dheeraratne, J.) 155
Let me refer to all the instances where the learned President refersto applicant's negligence. In dealing with the transaction relating toAbeyratne (chargel), the learned President states that the applicantwas negligent because the transaction was not entered in Abeyratne'spass-book. The learned President has not even considered at whatstage should the pass-book have been up-dated. In any event thatwas not a matter which was within the ambit of the charge levelledagainst the applicant. Without giving an opportunity to meet that chargeit would be unsafe to conclude that the applicant was negligent
The next point at which the learned President adverts to negligence,is in his consideration of the charge relating to Emalin (charge 5).The learned President merely states the applicant was negligentwithout specifying the act or acts of negligence on the part of theapplicant. Thereafter the learned President winds up by making thefollowing sweeping statement: "When all the evidence is taken intoconsideration it is observed that the applicant has acted at times(emphasis added) in a negligent manner. When considering the postoccupied by the applicant and the responsibilities that go with it, therespondent Bank cannot have any confidence in him. I therefore holdthat the termination of his employment is justified".
There appears to have been a lack of judicial evaluation of notonly the "times” at which the applicant was negligent but also of theparticulars and the manner in which he was negligent, which warrantedhis dismissal. The learned High Court Judge overlooked this glaringinfirmity in the reasoning of the learned President.
Learned counsel for the respondents drew our attention to the caseof Bank of Ceylon v. Manivasagasivam!1> where the question of for-feiture of the confidence reposed in a bank employee was considered.I can see no parallel with that case because there the very justificationfor dismissal was the suspicious course of conduct of the employeein relation to the Bank, in the attempt by some other persons tofraudulently transfer a large sum of money from the Island to anaccount abroad.
For the foregoing reasons, I allow the appeal and set aside boththe judgments of the Labour Tribunal and the High Court. I directthe 2nd respondent Bank to reinstate the applicant with effect from
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1st January 1998, with back wages from 12.6.1985. The 2ndrespondent Bank will pay the applicant a sum of Rs. 25,000 as costs.
AMERASINGHE, J. – I agree.
BANDARANAYAKA, J. – I agree.
Appeal allowed.