026-SLLR-1984-V1-THAVARAYAN-AND-TWO-OTHERS-V.-BALAKRISNAN.pdf
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Thavarayan v. Balakrishnan
189
THAVARAYAN AND TWO OTHERS
v.BALAKRISHNAN
COURT OF APPEAL :
H. A. G. DE SILVA, J. AND ABEYWARDANA, J.
C.A. 1/81 – L.T. 13/7215/78DECEMBER 12. 1983.
Code of Criminal Procedure Act. No. 15 of 1979, section 322(2) – IndustrialDisputes Act (Cap. 131). Section 32 D (2) and (5) – Right to appeal from Order ofLabour Tribunal on a question of law only – Petition of Appeal to contain statementof matter of law to be argued – Certificate by Attomey-at-Law that such matter oflaw is a fit question for adjudication – Domestic Inquiry.
The respondent was employed as a waiter in a restaurant owned by the appellants.One night when the restaurant was closed and re-decoration of the premises wasbeing done, the Manager entrusted the keys of the restaurant to the respondentand instructed him to look after the premises. Later in the night when the 2ndappellant casually dropped m a] the restaurant he found that the respondent was inthe company of two thugs. On returning later after making inquiries he found therespondent missing and was told that he was upstairs but was prevented fromgoing upstairs by the thugs who manhandled and threatened him. One of the thugshad the key of the premises. A complaint against the thugs was made to the Policethe next day and the Manager on behalf of the appellants terminated the services ofthe respondent by letters R4 and R5. In the Labour Tribunal, the respondent totallydenied misconduct on his part and the learned Labour Tribunal President held thatthe dismissal was unjustified and awarded compensation on the ground that therespondent had not. in violation of the principles of natural /justice, been given achance to show cause against the dismissal. The petitioner appealed from thejudgment of the learned President of the Labour Tribunal
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Held-
In (arms of the requirements of Section'322(2) of the Code of CriminalProcedure Act, No, 15 of 1979, read with Section 31D (2) and (5) of theIndustrial Disputes Act an appeal from an order of the L.T, must be on aquestion of law only, certified by an Attorney-at Law as a question of law fit foradjudication by the Courrof Appeal. The Petition of Appeal did not bear such acertificate by an Attorney-at-law and on this ground alone must be rejected.
Although a domestic inquiry is not statutorily required it is always desirable inorder to establish the bona fides of the employer.
Cases referred to
Thomas v. Ceylon Wharfage Co. Ltd., (1948) 49 N.L.R. 397.
Miskm v. Ponmah, (1903) 6 N.L.R. 132.
The Police Officer, Dondra v. Baban, (1923) 25 N.L.R. 156.
APPEAL from an Order of the Labour Tribunal.
N. W. Zanoon for respondent-appellants.
Applicant-respondent absent and unrepresented.
Cur. adv. vult.
February 10, 1984.
H. A. G. DE SILVA, J.
This is art appeal from the judgment of the President of the LabourTribunal which has held that the dismissal of theapplicant-respondent was unjustified and awarding the respondentcompensation in a sum of Rs. 4,520 being two years' salary.
The respondent was employed as a-waiter at the CriterionRestaurant owned by the respondent-appellants. He hadcommenced services under the appellants on 1.11.1971 and wasat the time of his dismissal on 6th June, 1978, drawing a salary ofRs. 185 per month.
On the night of 27th May, 1978 {Vesak Poya Day), the restaurantwhich inter alia sells foreign liquor had been closed and this closurewas made use of to redecorate the premises. At about 9.30 p.m.when the workmen engaged in the redecoration were still working,the Manager of the restaurant, N. Devarajah, entrusting the key ofthe front door of the premises to the respondent, had gone for hisdinner. The respondent who stays in the premises at night, hadbeen instructed to look after the restaurant, as the workmen werestill on the premises and stores of liquor as well as equipment worth atleast 2 lakhs of rupees were there.
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Thavarayan v. Balakrishnan (H. A. G. De Silva, J.)
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At about 11.00 p.m. Ronald Thavarayan, a partner of the firmand the 2nd appellant in this appeal whilst on a sight seeing tour ofthe Vesak illuminations, had casually dropped in at the restaurantand had found the respondent in the company of two notoriousthugs called Wimale and Vije, inside the restaurant. He had madeinquiries about the whereabouts of the Manager from therespondent and left stating that he would return later andrequesting the respondent to keep the door closed.
i
The 2nd appellant had then returned to the restaurant at about11.30 p.m. and found the thugs still there and the respondentmissing, He was informed that the respondent was upstairs andwhen the 2nd appellant attempted to go upstairs, he wasprevented from doing so and was manhandled and threatened bythe thugs. He had also seen the key of the premises in the hand ofone of the thugs.. The 2nd appellant had then left and made acomplaint against the thugs to the Police the next day. (R6>.
On 3rd June, 1978, the Manager on behalf of the appellants hadby letters R4 and R5 terminated the respondent's services witheffect from that date. R4 and R5 state that at 11.00 p!m. on 27thMay, 1978; the front door of the premises was found open and thekeys were in the hands of outsiders whilst the respondent wasintoxicated and sleeping inside the bar. This conduct wasconsidered a grave offence by the appellants.
The respondent gave evidence and it was a total denial ofmisconduct on his part. The learned President in his judgmentgiving reasons for the Order, has made certain findings asregards the evidence led at the inquiry, and has adverted to the factthat the respondent was not given an opportunity to show causebefore dismissal and that this would be a violation of the principlesof natural justice. He also states that on an analysis of the evidencegiven both by the respondent and the appellants and theirwitnesses, by a balance of probability he holds that the dismissal ofthe respondent was unjustified.
Section 31D(2) of the Industrial Disputes Act (Cap. 131) gives aparty aggrieved by an order of a Labour Tribunal the right to appealon a question of law only.
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Section 31D(5) states that-
" The provisions of Chapter XXX of the Criminal ProcedureCode (Cap : 16) (Chapter XXVIII of the Code of CriminalProcedure Act, No. 15 of 1979) shall apply mutatis mutandis inregard to all matters connected with the hearing and disposal ofan appeal preferred under this section
This appeal was filed on the 1st January, 1981, and therefore ActNo. 15 of 1979 will apply. Section 322(2) states that-
“ where the appeal is on a matter of law the petition shallcontain a statement of the matter of law to be argued and shallbear a certificate by an Attorney-at-Law that such matter of law isa fit question for adjudication by the Court of Appeal."
Thomas v, Ceylon Wharfage Co. Ltd, (1) which dealt with anappeal under the Workmen's Compensation Ordinance held thatthe effect of Section 51 of that Ordinance was to make theprovisions of Section 340 of the Criminal Procedure Codeapplicable to appeals under that Ordinance. Section 48 of theOrdinance gave the injured workman an appeal only on a point oflaw. Section- 51 of the Ordinance which is similar to section 31 D(5)of (he Industrial Disputes Act makes Chapter XXX of the CriminalProcedure Code applicable to appeals under that Ordinance, i.e.,including section 340(2) of the Criminal Procedure Code which issimilar to section 322(2) of Act No. 15 of 1979. Basnayake, J. (ashe then was) held in his judgment at page 398-
A petition of appeal under Section 48 of the Ordinanceshould in my opinion not only contain a statement of the mattersof law to be argued but it also must bear a certificate by anadvocate or proctor that such matter of law is a fit question foradjudication by the Supreme Court. An appeal under the Code ona matter of law which does not comply with the requirements ofSection 340(2) cannot be entertained unless the case is one thatfalls under the proviso to the section. This appeal does notconform with the requirements of the Code and must thereforebe rejected
In Miskin v. Ponniah (2) it was held that a petition of appeal (inregard to a sentence of a fine of Rs. 10) which appeared to besettled and signed by Counsel, without the certificate required by
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Thavarayan v. Balakrishnan (H. A. G. De Silva. J.)
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section 340 (2) of the Criminal Procedure Code that the' matter oflaw stated in the petition is a fit question for adjudication by theSupreme Court, is inadmissible in appeal.
The Police Officer, Dondra v. Baban (3) held that-
" where an appeal lies on a matter of law only, the certificatethat the matter of law is a fit question for adjudication should referspecifically to the point of law certified '
The principles enunciated in the cases referred to mustnecessarily apply to this appeal under the Industrial Disputes Act.The petition of appeal filed in this particular case does not bear acertificate signed by the appellants’ Attorney-at-law and hencedoes not conform to the requirements of section 322(2} of theCode of Criminal Procedure Act read with section 31 D{2) and (5) ofthe Industrial Disputes Act and on this ground alone it has to berejected.
Of the six grounds of appeal relied on by the* appellants fivegrounds are pure questions of fact in respect of which theappellants have no right of appeal. Since learned Counselappearing for them has made detailed written submissions, I haveexamined the evidence led at the inquiry, the conclusions on factsreached by the learned President and the reasons therefor and Icannot say that the learned President has misdirected himself onany material evidence or the inferences to be drawn from it.Therefore even on the facts I do not think there is any merit in thisappeal.
One matter that requires comment by me is the submission oflearned Counsel for the appellants that 'the appellants are notobliged in law to hold any domestic inquiry relating to thedismissal.' The law of Sri Lanka is materially different from thatprevailing in India. In Sri "Lanka there is no statutory obligation tohold such an inquiry. This submission has been drawn from astatement made at page 538 by S. R. de Silva in his treatise:'TheLegal Framework of Industrial Relations in Ceylon", but this sameauthor goes on to say-
‘notwithstanding that the holding of a domestic inquiry isgenerally not a legal requirement in Ceylon, such an inquiry isalways desirable since the principles of natural justice require that
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a person must be informed of the charge against him and anopportunity be given him to meet them. An inquiry helps toestablish the bona fides of the employer, and dismissal withoutan inquiry may sometimes be indicative that the employer hasacted arbitrarily".
It is this principle that the learned President has adverted to in hisOrder because it is common ground that no domestic inquiry washeld by the appellants before the respondent was dismissed fromtheir service. It must also be remembered as stated by S. R. deSilva in the treatise referred to above at page 570 that—
" subsequent cases, however, have consistently held that in acase of termination of employment the burden is on the employerto justify the termination on the principle that' he who alters thestatus quo and not he who demands its restoration, must explainthe reasons for such alteration ". A cursus curiae has thereforedeveloped over a long period of time before labour courts inregard to the burden of proof. In the unreported case of SC11/61 the Supreme Court of Ceylon held that the burden was onthe employer to justify a dismissal without notice where he reliedon misconduct as a ground for such dismissal'
In my view on the facts of this case the appellants have failed, asthe learned President has stated, to discharge that burden by abalance of probabilities.
Though the respondent had in his application to the LabourTribunal prayed for reinstatement and back wages, the learnedPresident has not ordered his reinstatement but awarded himcompensation amounting to two years' salary at Rs. 185 permonth, though he has held that the dismissal was unjustified. This,in the light of the appellants' submission that' the dismissal of therespondent was also based on a loss of confidence in the applicantemployee ' is in my view a just and equitable Order.
For the reasons I have given in this judgment I affirm the Order ofthe learned President and dismiss the appeal without costs.
ABEYWARDANE, J.-l agree.
Appeal dismissed