BANDARA v. STATE ENGINEERING CORPORATION OF SRI LANKA

014-SLLR-SLLR-2002-3-BANDARA-v.-STATE-ENGINEERING-CORPORATION-OF-SRI-LANKA.pdf


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BANDARA
v.STATE ENGINEERING CORPORATION OF SRI LANKA
SUPREME COURT• S. N. SILVA, CJ.,
BANDARANAYAKE, J., ANDWIGNESWARAN, J.
SC APPEAL NO. 57/2001HC (COL) LT NO. 1709/99LT (COL) NO. 2/170/95JUNE 04 AND 25 JULY 30, 2002
Industrial dispute – Termination of employment – Nature of employment – “Casual"or “permanent" – Guidelines for decision.
The appellant (the workman) was employed as a "casual Engineer" and wasassigned to work at worksites managed by the respondent (the employer) on asalary calculated at Rs. 200 per day. He was recruited on 01. 08. 1992 on arecommendation made prior to his graduation until the work was completed inthe site known as “cluster I” The workman graduated on 14. 12. 1992 obtaininga BSc. Engineering degree from the University of Moratuwa However, he wascontinued on "casual” employment. No letter of appointment was issued to him.The employer terminated his employment on 07. 04. 1995 on the basis that hisservices were no longer required.
During the employment the workman applied for a permanent post under theemployer but he was not selected, after an interview.
During the proceedings before the Labour Tribunal, the workman admitted thathe was an Engineer working on a casual basis. He also admitted that he wasnot paid allowances and bonuses which were paid to permanent employees ofthe employer.
Held:
Per Bandaranayake, J.
“Considering the circumstances in the instant case, the appellant’s positioncannot be categorized as "permanenf and the real character of his position fallswell within the parameters of a “casual'’ employee.”
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Cases referred to :
Ratnasbapathy v. Asilin Nona – (1958) 61 NLR 548.
Superintendent of Pusseiia State Plantation, Parakaduwa v. Sri LankaNidahas Sevaka Sangamaya – (1997) 1 Sri LR 108.
National Water Supply and Drainage Board v. D. P. David – CA No.1/87 CAM 02. 06. 1993.
Stoker v Wotham (1919) 1 KB 499 at pg. 502.
APPEAL from the judgment of the High Court.
Saliya Peiris for appellant.
Janaka de Silva, State Counsel for respondent.
Cur. adv. vult.
September 16, 2002
SHIRANI A. BANDARANAYAKE, J.
The applicant-respondent-petitioner-appellant (hereinafter referred toas the appellant), is a B.Sc graduate in Engineering from the Facultyof Engineering of the University of Moratuwa. The appellant wasrecruited as a Trainee Engineer by the respondent-appellant-respondent-respondent (hereinafter referred to as the respondent) on 01. 08.1992,prior to his graduation. The appellant obtained his degree on 14. 12.1992 and he claims that thereafter the respondent recruited him asan Engineer.
The appellant, on his employment with the respondent Corporation,-was initially assigned to the Manning Town Construction Site and-thereafter to the Maligawatta Construction Site. Later, the appellantwas transferred to the Construction Site at Soysapura. The respondentterminated-appellant on 07. 04. 1995 on the basis that his serviceswere no longer -required. The appellant made an application to the
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Labour Tribunal seeking reinstatement and back wages. The LabourTribunal by its order dated 29. 04. 1999, allowed the appellant’sapplication and ordered reinstatement and back wages amounting toRs. 62.400. The respondent preferred an appeal to the High Court,which by its order dated 24. 05. 2001 reversed the order of the LabourTribunal. The present appeal is by the appellant to this Court. 20
The principal matter, which arises for consideration in this appealis whether the appellant was a casual employee of the respondentcorporation. I wish to add that this issue was answered in favour ofthe appellant at the Labour Tribunal, but the High Court reversed thisfinding.
The appellant, while he was an undegraduate at the University ofMoratuwa applied for a post of Site Engineer at the respondentcorporation. This letter, which was produced before the Labour Tribunalwas in the following terms :
“Application for the Post of Site Engineer30
I am a B.Sc (Civil Engineering) undergraduate of the Universityof Moratuwa. I have already completed the relevant course andI have had some field experience during the six month period ofin-plant training . . .”
According to the minutes made on this letter, it appears that arecommendation was made to the effect that he should be taken asa “casual engineer” until the work was completed in the site knownas “cluster I”. Based on this recommendation, approval was grantedto engage the appellant as a trainee after 22nd July, 1992 and topay the normal daily allowance. The respondent corporation issued 40no letter of appointment to the appellant. However, on 21. 04. 1995,the respondent corporation issued a letter to the appellant on his workexperience. His letter was issued on the request made by the appellantand reads as follows :
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“21st April, 1995
To whom it may concern :
Mr. K. M. H. Bandara had been employed in this Corporation from
01. 08. 1992 to 31. 01. 1994 as a Trainee Engineer and from
01. 02. 1994 to 07. 04. 1995 as Engineer on casual basis.
During this period Mr. Bandara was attached to the following
worksites :
Manning Town Housing Project – From 01. 08. 1992 to
21. 07. 1993
Maligawatte Housing Project – From 22. 07. 1993 to
05. 12. 1993
Soysapura Housing Project,
Ratmalana- From 06. 12. 1993 to
04. 1995
This certificate is issued at the request of Mr. Bandara.”
At the Labour Tribunal inquiry, the appellant had stated that hehad served the respondent corporation for about 3 years without abreak. He had drawn a monthly salary, calculated at Rs. 200 per day.The Resident Engineer at the Soysapura Cpntruction Site, where theappellant worked prior to his termination, stated in his evidence atthe Labour Tribunal inquiry that, there were permanent employees,employees recruited on contract basis and casual employees workingat the Soysapura construction site. According to him, there ’were,
employees recruited on casual basis who belonged to different categories 'and that included labourers as well as Engineers.
> . * •
Learned counsel for the appellant cited passages" from S. R. deSilva’s Legal Framework of Industrial Relations of Ceyldn (XI), Hahdbookof Industrial Relations published by the Employees’ .Federation (X2)
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and the Handbook on Labour Relations published by the FriedrichEbert Stiftung Institute (X3). According to these passages a casualemployee is a person who is employed 'by chance or on no regularcontract of employment’. A basic feature in casual employment wouldthus be that –
employment is by chance;
absence of a contract of employment between the employerand the employee;
work would be irregular by nature.
On a comparison, while an ‘odd-job’ gardener, whose services are-irregular would be regarded as a casual employee, a person who hasan arrangement that he should come regularly once a month wouldnot be regarded as a casual employee due to his employment being’stable and periodical’.
Learned counsel for the appellant also relied on Ratnasabapathyv. Asilin Nona(,) and Superintendent of Pussella State Plantation,Parakaduwa v. Sril Lanka Nidahas Seveka Sangamaya.® In the lattercase G. P. S. de Silva, CJ. held that the mere label is not sufficientto classify a workman as a casual employee, if the real characterof his employment is that of a permanent employee.
Learned State Counsel for the respondent mainly relied on theCourt of Appeal judgment in National Water Supply and DrainageBoard v. D. P. David3) (CA) where it was held that a worker whohad ‘ worked for over five years was a casual employee since hewas paid on a daily basis according to the number of days he worked. I
I am of the view that the Superintendent of Pussella State Plantation,Parakaduwa case (supra), on which learned counsel for the appellantplaced heavy reliance, can be distinguished. In that case the employee
had worked along with the others to make logs of and remove about
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3,000 rubber trees, which had fallen due to a gale. He had workedthere for about a month, but he continued to be employed for a furtherperiod totalling 173 days, when his services were terminated. Duringthat period he was paid monthly, but on a daily rate of Rs. 48.He was employed as a labourer for removing uprooted trees, weeding,cleaning roads, tapping rubber, replanting trees and applying fertilizer.This kind of work was given to him only on a limited number of daysin a month and therefore he received wages ranging from Rs. 420to Rs. 850. However, there was evidence to show that there wereEmployees’ Provident Fund deductions, Trade Union Subscriptions,Defence Levy and Welfare Society contributions made from wages.He was paid New Year and festival advances and a monthly deductionwas made for as charges due to the person who washed the clothesof the estate labourers.
The evidence before us in the present case however, is different.It was not disputed that the appellant was given a salary calculatedat Rs. 200 a day. The appellant admitted in cross-examination thatat the time Mrs. Singharachchie warned him, he was an Engineerworking on a casual basis. During his examination in chief, theappellant admitted that although the respondent corporation paidallowances or bonuses to its employees, he was never paid suchallowances as they were given only to permanent employees. It isalso to be taken into consideration that the applicant, while functioningin this capacity at the respondent corporation, responded to a news -paper advertisement placed by the respondent calling for applicationsfor the post of Engineer (Civil) on a contract basis. This post carrieda monthly salary of Rs. 4,550 with a special allowance'of. Rs. ,600.Admittedly, he was not selected for an appointment to be,given ona contract basis.
On a perusal of .the evidence led in this case, it is evident thatthe appellant was employed on a recommendation made bn his initialapplication to the respondent corporation. As pointed out.earlier atthat time the recommendation was to, “have him as a casual Engineer
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at this cluster until completion of work”. Accordingly, he commencedwork at the Manning Town Construction Site. There was no letter ofappointment issued to the appellant. It is common ground that therespondent, being a public corporation, has been issuing letters ofappointment to all their permanent employees indicating the terms andconditions of their employment. At the time the appellant’s appointmentwas made, there is no evidence to show that the appellant had facedan interview. However, when he applied for a position on contractbasis, the respondent corporation summoned him for an interview atwhich he failed to secure an appointment as noted above.
In Ratnasabapathy v. Asilin Nona {supra), T. S. Fernando, J. citedwith approval the comments made by Swinfen Eady, M.R. in Stokerv. Wortham14) where he observed that :
“. . . There is a class of cases where it is quite clear theemployment is regular, permanent, stable and not casual. Thereis another class of cases on the other side of the line wheremanifestly the employment is of a casual nature. Between thesetwo it may become more and more difficult to say on which sideof the line the individual case falls. In those cases it is a questionof fact to be determined by considering not on the nature of thework, but also the way in which the wages are paid, or the amountof the wages, the period of time over which the employmentextends, indeed all the facts and circmstances of the case.”
There was no change in the “nature” or the “character” of theappellant’s employment, until the time his sevices were terminated bythe respondent. The appellant had never queried as to why he wasnot given a letter of appointment, but decided to apply for an Engineering(civil) position on a contract basis where these posts were advertised.During the period he served for the respondent corporation, he hadworked in three construction sites. Considering the circumstances inthe instant case, it Is quite clear that the description of the appellant’s
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position cannot be categorized as “permanent” and the real characterof his position falls well within the parameters of a "casual” employee.
In the circumstances he is not entitled to reinstatement and backwages as ordered by the Labour Tribunal.
For the aforementioned reasons, the appeal is dismissed and theorder of the High Court dated 24. 05. 2001 is affirmed.
I make no order as to costs.
SARATH N. SILVA, CJ. – I agree.WIGNESWARAN, J. – I agree.
Appeal dismissed.
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