ASSOCIATED CABLES LTD. v. KALUTARAGE

031-SLLR-SLLR-1999-V-2-ASSOCIATED-CABLES-LTD.-v.-KALUTARAGE.pdf


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ASSOCIATED CABLES LTD.
v.KALUTARAGE
SUPREME COURTAMERASINGHE, J..
GUNASEKERA, J. ANDWEERASEKERA, J.
S.C. APPEAL NO. 102/98H.C./A/LT. NO. 1460/97LT. NO. 2/114/87JUNE 3, 1999
Industrial Dispute – Termination of services – Ground for interfering with the decisionof a Labour Tribunal – Breach of natural justice – Grant of compensation in appeal- Duty of the appellate court to give the basis of computing compensation.
The respondent-workman applied to the Labour Tribunal for relief on the groundthat his services had been constructively terminated by the appellant-employeron 18. 3. 87 by being refused entry to his work place namely, the factory ownedby the appellant-employer. The workman said in evidence that he was alsohumiliated on that occasion and that he promptly made a complaint to thePiliyandala Police. The employer's position was that the workman had vacatedpost by failing to report for work after the incident on 18. 3. 87, notwithstandingwritten instructions to resume work. The workman explained that he did notreport for work as he feared being harassed if he resumes work and that theemployer's letters calling upon him to report for work were mala fide.
After the inquiry into the workman's application at which both parties wererepresented by counsel, the Labour Tribunal reserved its order for 25. 04. 97.On that day the parties were not represented by counsel, but the workman attendedthe Tribunal when the Labour Tribunal President called him up from the well ofthe Tribunal and questioned him regarding the statement he had made to thePolice. The purpose of that questioning was to test the credibility of his evidence.After such questioning the President of the Tribunal decided that there was nounjust termination of services but that the workman had vacated his post.
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On an appeal by the workman the High Court reversed the decision of the LabourTribunal and held that the termination of services was not justified; and as theworkman did not claim reinstatement, the High Court awarded him compensationin a sum of Rs. 150,000 on the basis that 10 years had elapsed since thetermination of services.
Held:
The procedure adopted by the Labour Tribunal President in questioningthe workman who was unrepresented, on the day fixed for the deliveryof the order, was not lawful as it was in breach of the requirements ofnatural justice. Consequently, the decision of the Tribunal was not sup-ported by legal evidence and the finding was perverse.
The award of compensation to the workman in a sum of Rs. 150,000 was .bad for the want of an adequate basis for computing that amount. Instead,the payment of 3 years' salary would be a just and equitable award ofcompensation.
Cases referred to:
De Silva and others v. Seneviratne and others – (1981) 2 Sri LR. 7.
Hatton National Bank v. Perera – (1996) 2 Sri LR. 231.
Jayasuriya v. Sri Lanka State Plantation Corporation -(1995) 2 Sri
L.R. 379.
APPEAL from the Judgment of the High Court.
Gomin Dayasiri with Miss Manouri Jinadasa for the appellant.A. Sri Nammuni for the respondent.
Cur. adv. vult.
July 8, 1999.
L H. G. WEERASEKERA, J.
The President of the Labour Tribunal had concluded that the servicesof the applicant-respondent had not been unjustly terminated but that,he had vacated his post upon the basis of certain findings of fact
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which the applicant-appellant before the High Court contended wasso wholly untenable inasmuch as the President who held judicial officewas required to give both parties a full and clear notice of the caseagainst him, an opportunity of being represented and stating theircases, sufficient time and notice, without being taken by surprise whenan order had to be made and that having failed to do so the orderwas not legally tenable and was unreasonable and perverse.
The learned High Court Judge by his order dated 26. 03. 98 thoughat the beginning of his reasoning directed his mind to this mostimportant aspect appears to have thereafter examined variousquestions not relevant to the matters in issue and regrettablyexpressed various conflicting views but concluded finally that thedismissal of the applicant was unreasonable and wrongful and thatthe order of the Labour Tribunal was not just and equitable. Sincethe applicant-appellant-respondent did not claim reinstatement theHigh Court Judge very justifiably proceeded to make order forcompensation in favour of the applicant though regrettably withoutgiving a basis nor reasons or method of computation.
From this order of the learned High Court Judge the respondent-respondent-petitioner invites intervention of Court, submitting that thereasoning of the High Court Judge is conflicting and cannot besustained –
in respect of the question of termination of service.
that no rational basis of computation of compensation hasbeen used to determine the amount of compensation atRs. 150,000.
Special leave to appeal was allowed on one question namely,
"Whether the High Court was justified in interfering with the
finding of fact reached by the Labour Tribunal."
The High Court acting as an Appellate Court is invited to reviewthe findings of the Labour Tribunal President acting as trial Judgeon question of facts.
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In my opinion where the findings on questions of facts are basedon the credibility of a witness or witnesses on the perception of thetrial Judge though such findings are entitled to great weight and notbe lightly dismissed and deserving the utmost consideration, wherethe trial Judge has failed by legal evidence and conduct to satisfythe basic requirements of natural justice or that the finding is rationallynot possible and therefore perverse then in such a situation theAppellate Court is justified in reviewing such findings.
In this view I am supported by the decision of Ranasinghe, J. inDe Silva & others v. Seneviratne and others and the decision ofG. P. S. de Silva, Chief Justice in the case of Hatton National Bankv. PereraP.
G. P. S. DE SILVA, CJ. held:
"In order to set aside the determination of facts by the tribunalthat this termination was unjustified the appellant must satisfy thatthere was no legal evidence to support the conclusion of fact orthe finding is irrational or perverse."
The applicant-appellant-respondent was a machine operator atrespondent-respondent-appellant Company situated at Nagoda, Kalutara.The respondent-appellant decided to shift the factory to Piliyandala.Though numerous other employees were granted compensation ontermination of services by reason of the shift as being redundant theapplicant-respondent though he sought, was not one of them. Therespondent-appellant's position was that the applicant-respondent wasnot pleased with the transfer to Piliyandala as a result of the factorybeing shifted to Piliyandala. In fact this is not disputed as the applicanthad made a complaint to Commissioner of Labour regarding histransfer to Piliyandala factory and of his being harassed and that theinquiry in regard to which was fixed for 16. 03. 87. The applicant-appellant went for the inquiry before the Commissioner but that therespondent-respondent-petitioner did not attend. In consequenceappellant-respondent could not report for work on 16. 03. 87. On
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17. 03. 87 the appellant-respondent did not report for work andinformed the respondent-appellant by telegram of being indisposedwhich is now admitted.
When the applicant reported for work on 18. 03. 87 he was refusedentry at the gate. This was when all the other workers were beinggranted entry into the factory. He was humiliated. He proceeded tothe Police station and made a statement to the Piliyandala police atabout 8.30 am on 18. 03. 87. On 19. 03. 87 the application for relieffor constructive unjust termination of services was made by theapplicant-respondent.
By R1 of 24. 03. 87 the respondent-appellant informed theapplicant-respondent that though the records disclose that theappellant was absent as he was indisposed, no medical certificatehas been sent in support and requesting him the applicant-respondentto report for work, failure to do so would be considered as his havingvacated post. This was followed by R2 dated 28. 03. 87 giving him3 days to report for work in default of which his services would beconsidered to have been vacated.
To this the applicant-respondent replied by R3 dated 03. 03. 87setting out his position and repudiating the respondent-petitioner'sallegations in R1 and R2 and stating that the invitation to report forwork could not be complied with as he apprehended that he wouldbe put into trouble.
The respondent-petitioner by R4 persisted in inviting the applicant-appellant-respondent to report for work on 09. 04. 87 on pain of hishaving to be considered to have vacated his post if he did not reportfor work.
The entire trial before the learned Labour Tribunal Presidentproceeded on the basis as to whether the applicant-respondent'salleged refusal of entry into the factory on 18. 03. 87 amounted toconstructive termination or whether by reason of the applicant-
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respondent not reporting for duty as requested in R1, R2 and R4,such conduct amounted to his having vacated post.
It must be noted that during the entire trial before the learnedPresident of the Labour Tribunal the applicant-respondent andrespondent-petitioner were both represented by counsel and the casesfor and against them were transparent to them.
On 17. 01. 99 the case of both the applicant and respondent-petitioner was concluded. The case was to be called on 17. 03. 97for written submissions which was extended up to 25. 04. 97 on whichdate the order was to be delivered.
On 25. 04. 97 the order was scheduled to be delivered. The learnedLabour Tribunal President before the order was delivered proceededto question the applicant-respondent on the statement made to thePiliyandala Police on 18. 03. 87 in order to test the credibility ofthe applicant-respondent's evidence. The questions asked were inrespect of A3 the statement to the Piliyandala Police and therespondent's apprehension of bodily harm if he returned to work.
What disturbs me in the procedure adopted by the learnedPresident of the Labour Tribunal is that –
the 25th of April, 1997, was the day on which after theclosure of the cases of both parties and the filing ofwritten submission was the designated day on which theorder was due to be delivered;
on all other dates of hearing the applicant-respondent wasrepresented by counsel. So also the respondent-petitioner;
it could not reasonably be expected for the applicant-appellant to have retained counsel on 25. 04. 97 as it wasthe day on which the order was due to be delivered andthere was no need for counsel to represent him;
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(0) the applicant-appellant-respondent was called from the wellof the Court and examined on A3.
In my view unrepresented and unprepared for a trial on the dayorder was due he must surely have been taken by surprise. Theapplicant-appellant would not have had the benefit of the advice ofcounsel or even the benefit of having time to consider what he wasbeing questioned on.
Although the Labour Tribunal was required to make a just andequitable order in my opinion it must not only be just and equitablebut the procedure adopted to that end must be legal and every judicialbody exercising judicial powers must so arrive at a order only onlegal evidence. It is my perception that the procedure adopted as25. 04. 97 was far from what is legal evidence and that anyconsequential finding is perverse.
The question of fact sought to be clarified by the learned Presidenton 24. 04. 97 was the time when the statement A4 was made tothe Police and on this question conclusions were drawn by thelearned President of the Labour Tribunal as well as to theapplicant's credibility.
On the question of time and as to the applicant’s credibility liesa mere difference of 20 minutes. It may well have been that thechronometer at the Police station did not record correct time or theperson who wrote recorded wrong time or even if the correct timewas recorded to draw adverse conclusions on a difference in timeof so small a magnitude is in my view irrational.
Though letters R1, R2 and R4 invited the applicant-respondent toresume work the invitation was not accepted. The applicant-respondent's position was that he feared he could be put into furthertrouble if he resumed work and that the invitation was made malafide. Rather than an adverse inference being drawn the cross-exami-nation of that applicant-appellant-respondent had been on the basis
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that on previous occasions he had been assaulted, ie from or about1985. Can one not therefore reasonably assume that the applicant,feared the invitation to resume work was for the same purpose andcan he be faulted for not resuming work. To draw an adverse inferenceagainst the applicant-appellant-respondent is in my view no lessirrational and perverse.
There was strong ground for interference by the High Court Judge.
I am, therefore, for the reasons set out of the view that there wasno legal evidence to support the conclusion of the learned LabourTribunal President and that the conclusions so drawn were irrationaland perverse and that the order of the Labour Tribunal Presidentcannot be sustained. Though the High Court was justified in interferingwith the findings of the Labour Tribunal, I do not subscribe to someaspects of the reasoning in the judgment of the learned High CourtJudge in arriving at this conclusion that the termination of the servicewas unjustified and for a composite sum of Rs. 150,000 be paid ascompensation.
I agree with the finding that the applicant-appellant-respondent'sservices had been constructively terminated. The applicant-appellant-respondent asked for no reinstatement but sought only compensation.To my mind the consequence of the finding that the dismissal isunlawful would warrant what in the circumstances would be just andequitable compensation.
I prefer to follow the basis that was considered by Dr. Amerasinghe, J.in the case of Jayasuriya v. Sri Lanka State Plantation Corporation
“For an order to be just and equitable it is not sufficient forsuch order merely to contain a just and equitable verdict. Thereasons for such verdict should be set out to enable the partiesto appreciate how just and equitable the order is"
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in order to illustrate what ought to be a just and equitable awardof compensation.
and at page 409 supra where Dr. Amerasinghe, J. concluded :
“There ought to be at least an approximate computationof the immediate loss, ie loss of wages and benefits from thedate of dismissal up to the date of the final Order or Judgment,and another with regard to prospective, future loss, and a thirdwith regard to the loss of retirement benefits, based as far aspossible on a foundation of solid facts given to the Tribunal bythe parties
Thus, what should be considered is actual financial loss notsentimental loss. To which list I would add the last salary or wageearned by the worker as being a relevant consideration in thecomputation of compensation.
Leave to appeal has not been granted in respect of the questionof compensation. Though strictly this question would not fall withinthe scope of this appeal it would not be just and equitable in thepeculiar circumstances of this case, in the interests of justice that asinvited by counsel, the question of the award of compensation is notreviewed by me.
The essential question sans procedural restriction is the actualfinancial loss caused by the unfair dismissal. The learned High CourtJudge gives no basis for awarding Rs. 150,000 except to state thatthe applicant-appellant-respondent's services were terminated in 1987and 10 years had elapsed by the time of his order. Though in myview the basis of the computation was totally inadequate to my mindhe appears to have directed his mind to just and equitable relief wherethe dismissal was not justified when he did award compensation.
In those circumstances it would be justified to review the awardbf compensation in the following manner.
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The salary of the applicant at the time of termination of his servicewas Rs. 1,900 per month. Being a machine operator prospects offuture employment would not have been difficult. He has asked forno reinstatement and sought to be voluntarily retired on the paymentof a sum of Rs. 20,000 which had been offered to other workers bythe employer. The termination of his services according to theapplicant-respondent was on the 18th March, 1987. His applicationto the Labour Tribunal in terms of section 31 (a) of the IndustrialDisputes Act was on the 19th of March, 87 and the order of thePresident of the Labour Tribunal was on 19th of May, 1997. Theapplicant-respondent would be entitled to Employees Provident Fundbenefits and other contributions made by him during his period ofservice. Taking these factors into consideration I would consider 3years' salary as a just and equitable award of compensation.
The finding of the learned High Court Judge that the terminationof the services of the applicant-appellant-respondent was not justifiedis affirmed, but I vary the order for the award of compensation toRs. 68,200.
The applicant-appellant-respondent is entitled to Rs. 5,000 as costsof appeal.
DR. A. R. B. AMERASINGHE, J. – I agree.
D. P. S. GUNASEKERA, J. – I agree.
Appeal dismissed.
Order for comprehension varied.