002-NLR-NLR-V-77-BROOK-BOND-CEYLON-LTD.-Appellant-and-TEA-RUBBER-COCONUT-AND-GENERAL-PRODUC.pdf
Brook Bond (Ceylon) Ltd. v. Tea, Rubber, Coconut and General Produce
Workers’ Union
[In the Court of Appeal of Sri Lanka]
Present: Fernando, P., Sirimane, J., Samerawickrame, J.,Siva Supramaniam, J., and Tennekoon, J.BROOK BOND (CEYLON) LTD., Appellant, and TEA, RUBBER,COCONUT AND GENERAL PRODUCE WORKERS’ UNION,
Respondent
Appeal No. 9 of 1973
S.C. 39/70—L. T. Case No. 1/30644
Labour Tribunal—Termination of a workman’s services—Applicationfor relief—Disputed questions of fact—Duty of the Tribunal toset down its findings thereon and to give reasons for its order—Discretion of the Tribunal to make a just and equitable order—It must not be exercised arbitrarily—Reinstatement of aworkman—Relevancy of past record of service■—Refusal ofTribunal to consider material facts—Error of law—IndustrialDisputes Act (Cap. 131), ss. 31B, 31C.
Application for relief in respect of the termination of a workman'sservices was made under section 31B of the Industrial Disputes Act.The only issue at the inquiry was whether the services of the work-man were terminated by the employer (the appellant) becausethe workman had assaulted a fellow worker despite the final warn-ing he had received in consequence of “ previous unsatisfactoryrecord of attendance, conduct and Work”. The President of the
SIVA STJPRAMANIAM, J.—Brook Bond (Ceylon) Ltd. v. Tea, Rubber, 7
Coconut and General Produce Workers' Union
Labour Tribunal ordered reinstatement of the workman but did notset out in his order his finding on the principal issue of fact or hisreasons for ordering reinstatement. It was contended by theunion-respondent that it could be inferred from the order that thePresident’s finding was that the alleged assault had not beenestablished and that the order for reinstatement was based onsuch finding.
Held, that in the absence of a finding on the disputed questionof fact, there was no basis for the Tribunal to make a just andequitable order.
The rules of procedure, framed under section 31C (2) of theIndustrial Disputes Act provide for the filing of pleadings andfor the examination and cross-examination of the witnesses by theparties. The parties are entitled to know what evidence the Tribunalaccepted or rejected and the reasons for the order ultimately made.
Where an appeal lies from the order of a tribunal to a higherCourt, though the appeal may be only on a question of law, it isthe duty of the tribunal to set down its findings on all disputedquestions of fact and to give reasons for its order. Questions of lawmust necessarily be considered in relation to the facts and! it would beimpossible for a Court of Appeal to discharge its functions properlyunless it has before it the findings of the original tribunal on thefacts as well as its reasons for the order it has made.
On the question of reinstatement of a workman, the past recordof service of the _ workman is of Ihe greatest importance andrelevancy. The President in the present case had clearly misdirectedhimself in regard to it.
The refusal of the Tribunal to consider material facts constitutederror of law.
H. W. Jayewardene, with D. C. Amerasinghe, J. C. Ratwatte,and J. B. L- de Silva, for the appellant.
K. Kanag-Iswaran, with S. Mahenthiran, for the respondents.
December 31, 1973. Siva Supramaniam, J.—
This is an appeal, with the leave of this Court, against thejudgment of the Supreme Court affirming a decision of theLabour Tribunal in an application for relief under Section 31Bof the Industrial Disputes Act by a trade union on behalf of aworkman named Wimalasena whose services had been termi-nated by his employer, the appellant. The appellant is a limitedliability company.
On a complaint made by a fellow workman namedHemachandra who was attached to the workers’ canteen at oneof the work places of the appellant that he had been assaulted
Appeal
from a judgment of the Supreme Court
Cur. adv. vult.
8 SIVA STJPRAMANTAM, J.—Brook Bond {Ceylon) Ltd. v. Tea, Rubber,
Coconut and General Produce Workers' Union
by Wimalasena inside the canteen premises during workinghours, the appellant held a domestic enquiry. Wimalasena deniedthe allegation but, at the conclusion of the inquiry, he wasfound guilty of the charge. Having regard to his previous badrecord of service, the appellant terminated his services. Therespondent trade union of which Wimalasena was a memberthen made the present application for relief on his behalf tothe Labour Tribunal.
The duty of the Tribunal under Section 31C of the Act was toascertain the facts and thereafter make a just and equitable order.The facts in this case fell within a very narrow compass andthe principal issue which had to be decided was whether theallegation of assault had been established or not. Yet the enquirywhich commenced about one and a half years after the date ofthe application was concluded, after many postponements, ninemonths later. The President took a further ten months to makehis order which he delivered on 15th February, 1970. He heldthat the termination of the workman’s services was not justifiedand directed his reinstatement but without back wages. Hefurther directed that the period of non-employment should notbe reckoned to be a break in service. Although his order coversover eleven type written pages one searches in vain for hisfindings on the principal issue of fact that was in dispute betweenthe parties or for his reasons for ordering the reinstatement ofthe workman.
Learned counsel for the respondent union argued before usthat it could be inferred from the order that the President’sfinding was that the alleged assault had not been establishedand that the order for reinstatement was based on such a finding.Wimalasena stated in evidence that he had only abused Hema-chandra but had not struck him. Hemachandra testified that hehad been struck on his left cheek and that within a few minutesof the assault he had made a complaint about it to the factorymanager. The factory manager corroborated his evidence inregard to the complaint and stated that he found a slight swellingon Hemachandra’s left cheek where he was said to have beenstruck. Not a single question was put to this witness in cross-examination impugning his truthfulness or his bona fides. Thisitem of evidence, though of great importance, appears to havebeen completely overlooked by the President, as there is noreference to it in his resume of this witness’s evidence containedin the order. On the totality of the evidence that had been placedbefore the Tribunal, it would have been a wholly unreasonablefinding that the assault had not been established. It is perhaps,for that reason that the Supreme Court in its judgment stated :
SIVA SUPRAMANIAM, J.—Brook Bond (Ceylon) Ltd. v. Tea, Rubber, 9
Coconut and General Produce Workers’ Union
“ But it is clear that the President made his order on the basisthat there was an assault but the circumstances diminished theculpability of the workman Wimalasena. ” That that conclusionis far from clear from the terms of the President’s order isdemonstrated by the fact that according to the contention oflearned counsel for the respondent the clear inference is that thePresident found Wimalasena not guilty of the assault. In theabsence of a finding on the disputed question of fact, there wasno basis in this case for the Tribunal to make a just and equitableorder.
The rules of procedure framed under Section 31C (2) of theAct provide for the filing of pleadings and for the examinationand cross-examination of the witnesses by the parties. Theparties are entitled to know what evidence the Tribunal acceptedor rejected and the reasons for the order ultimately made. Asstated by Weeramantry, J. in Ceylon Transport Board v. Guna-singhe1 “ Proper findings of fact are a necessary basis for theexercise by Labour Tribunals of that wide jurisdiction given tothem by statute of making such orders as they consider to bejust and equitable. Where there is no such proper finding of factthe order that ensues would not be one which is just andequitable upon the evidence placed before the Tribunal, forjustice and equity cannot be administered on a particular caseapart from its own particular facts. ”
Where an appeal lies from the order of a tribunal to a higherCourt, though the appeal may be only on a question of law, it isthe duty of the tribunal to set down its findings on all disputedquestions of fact and to give reasons for its order. Questionsof law must necessarily be considered in relation to the facts andit would be impossible for a Court of Appeal to discharge itsfunctions properly unless it has before it the findings of theoriginal tribunal on the facts as well £s its reasons for the orderit has made- In the words of Lord Normand in Inland Revenue v.Fraser3 ” In cases where it is competent for a tribunal to makefindings of fact which are excluded from review, the appeal Court
has always jurisdiction to intervene if it appearsthat the
tribunal has made a finding for which there is no evidence orwhich is inconsistent with the evidence or contradictory of it. ”That jurisdiction, where an appeal does lie, cannot be renderednugatory by a failure to record necessary findings of fact.
In the instant case, the major portion of the President’s orderconsists of a resume of the evidence of the witnesses. Aftersummarising the evidence, he has proceeded to determine the
(1968) 72 N. L. R. 76 at 83.
(1942) Tax Cases 498 at SOI.
10 SIVA SUPRAMANIAM, J.—Brook Bond (Ceylon) Ltd. v. Tea, Rubber,
Coconut and General Produce Workers' Union
question whether the appellant was “ justified in terminatingthe services of the applicant (sic) for the reason that he assaulteda fellow worker during working hours at the canteen. ” For itsjustification of the termination of Wimalasena’s services, theappellant relied not only on" the fact that the workman was guiltyof assault but also on his “ previous unsatisfactory record ofattendance, conduct and work. ”
During the period December 1961 to May 1965 Wimalasenahad been warned on eight occasions in respect of various actsof misconduct such as habitual late attendance, unauthorisedabsence, neglect of duty and failure to comply with thecompany’s standing orders. In July 1965 he was called upon toanswer the following charges: —
“ 1. That on Friday 28th May 1965, at or about 1.50 p.m.during working hours, while you were detectedpartaking in a meal in the Box Stores, and whenquestioned by Mr. S. Alagu, Factory Supervisor, as toyour conduct on this occasion you abused him inobscene language.
2. On the same date and at or about the same time as statedin charge 1 above you did threaten Mr. S. Alagu,Factory Supervisor, with bodily harm. ”
At a domestic enquiry he was found guilty of both charges andwas suspended from work without pay for one week. At the sametime, the appellant drew his attention to his previous bad recordand the warnings he had received on eight occasions andinformed him as follows : —
“ In view of your very unsatisfactory record of attendance,conduct and work, you are hereby further warned that ifon any future date your conduct, attendance or work befound wanting the same will not be considered withoutdismissal—Please treat this as a final warning. ”
According to the appellant, it was in view of Wimalasena’sconduct in assaulting a fellow worker despite the final warningthat he had received that his services were terminated. ThePresident, in his order, brushed aside the evidence regardingthe workman’s previous bad conduct with the following obser-vation :—'“Most of the warnings have been given in respectof matters not involving assault or abuse, except on one occasion.”The President misdirected himself in taking the view that onlywarnings given in respect of conduct involving assault or abusethat should be taken into consideration by him in determiningthe. question whether the termination of services was justified.
SIVA SUPB.AMANIAM, J.—Brook Bond (Ceylon) Ltd. v. Tea, Rubber, II
Coconut and General Produce Workers' Union
and, even then, there should have been previous warnings onmore than one occasion. The refusal in this way to considermaterial facts in deciding the matter before him involved, inour opinion, error of law.
Learned counsel for the respondent submitted that thePresident had an “ unfettered discretion ” under Section 31C (1)of the Act to make an order which he considered just andequitable and the order for reinstatement having been so made,a Court of Appeal should not interfere with it. The expression“ unfettered discretion ” was used by Lord Dilhorne in themajority judgment of the Privy Council in United EngineeringWorkers’ Union v. Devanayagam1 when he said : “ They (i.e., thearbitrator, the Labour Tribunal or the Industrial Court) aregiven an unfettered discretion to do what they think is rightand fair. ” The use of the phrase “ unfettered discretion ” hasunfortunately given rise to much misunderstanding and LabourTribunals have sometimes acted as if the phrase meantan arbitrary exercise of discretion. As pointed out by Weera-mantry, J. in Ceylon Transport Board v. Gunasinghe (Supra),“ the decision in United Engineering Worker’s Union v.Devanayagam does not free Labour Tribunals from the dutyof acting judicially. ” Further, considerations of justice andequity must necessarily act as fetters on the exercise of thatdiscretion.
In the instant case, not only did the Labour Tribunal fail toarrive at a finding on the facts and thus deprive itself of thebasis on which it could exercise its discretion, but, whilepurporting to exercise its discretion in regard to the questionwhether the workman should be reinstated, it misdirected itselfand gave no weight at all to the past record of the workman onwhich the appellant relied to justify the termination. For thesereasons the decision of the Tribunal in this case is one whichcalled for interference.
The Supreme Court, however, attached no importance to thePresident’s failure to give a decision on the disputed questionof fact but interpreted the order as one made on the basis thatthere was an assault but that the circumstances diminished theculpability of the workman. This interpretation would appear,in reality, to be the Supreme Court’s own finding on the disputedquestion of fact on the evidence placed before the Tribunal. Tofind on the facts is in excess of the jurisdiction of the SupremeCourt. In dismissing the appeal, the learned Judge stated : “ Ido not find in this case any compelling reason by way of a
1 (1967) 69 N. L. R. 289 at 296.
12
Rajapakse v. The State
misdirection or a failure to consider any relevant issue in theorder to vary the President’s order. ” In reaching that conclusion,the learned Judge appears to have overlooked the fact that on thequestion of reinstatement of a workman the past record ofservice of the workman is of the greatest importance andrelevancy and that the President in his order had clearlymisdirected himself in regard to it.
For the reasons set out above, we are of the opinion that thejudgment of the Supreme Court as well as the decision of theLabour Tribunal should be set aside and we so order. Havingregard to all the circumstances of this case we do not considerit satisfactory to send this case back for an adjudication on thedisputed question of fact by the President who heard this caseand for a fresh order by him with due regard to the previousrecord of the workman or for a fresh hearing before anotherPresident. Acting under the powers vested in us under Section8 (2) of the Court of Appeal Act, No. 44 of 1971 we make orderthat the application of the respondent before the LabourTribunal be dismissed.
There will be no order in regard to costs.
Appeal allowed.