BUILDING MATERIALS CORPORATION v. JATHIKA SEVAKA SANGAMAYA ( on behalf of D.

022-SLLR-SLLR-1993-2-BUILDING-MATERIALS-CORPORATION-v.-JATHIKA-SEVAKA-SANGAMAYA-on-behalf-of-D..pdf


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BUILDING MATERIALS CORPORATIONv.
JATHIKA SEVAKA SANGAMAYA(on behalf of D. N. T. Warnakulasuriya)
SUPREME COURT.
BANDARANAYAKE, J.
DHEERARATNE, J. AND PERERA, J.
S. C. APPEAL NO. 54/92PROV. H. C. GALLE CASE NO. 53/91L. T. GALLE CASE NO. G/17635/8821 MAY 1993.
Industrial Dispute – Unlawful termination of employment – Transfer and failureto report for duty – Vacation of Service –
Absence from work of an employee on the ground of illness or other reasonbeyond his control is inconsistent with the intention to abandon his employmentprovided that there are no other circumstances from which an inference to thecontrary could be drawn.
Where an employee endeavours to keep away from work or refuses or fails toreport to work or duty without an acceptable excuse for a reasonably long periodof time such conduct would necessarily be a ground which justifies the employerto consider the employee as having vacated service.
Where the respondent who was in a transferable service failed although he hadbeen given several opportunities to regularize his position and to report for dutyat his new station on transfer, his persistent failure to report .for work will giverise to the necessary inference of an intention to remain away permanently. Longabsence without obtaining leave or authority is evidence of desertion or aban-donment of service. Illness not supported by acceptable medical certificates wasa mere ruse to avoid reporting for work at the new station.
Cases referred to :
Ceylon Estate Staffs Union v. Superintendent, Meddacumbura Estate
73 NLR 281.
C. T. B. v. Thungadasa 73 NLR 211.
Jeevan Lai v. Their Workmen 1961 — 11 LJ 517.
APPEAL from order of the High Court.
L G. Weeramantry with Jacob Joseph for employer – respondent – appellant.Ananda Kasthuriarachchi for applicant – appellant – respondent.
Cur. adv. vult.
SC Building Materials Corporation v. Jathika Sevaka Sangamaya (Perera, J.)317
October 17, 1993.
PERERA, J.
The Applicant-Appellant-Respondent (hereinafter referred to as theApplicant-Respondent) made an application to the Labour Tribunal,Galle, on or about 8th March 1988 alleging that his services wereterminated unjustly and unlawfully by the Employer-Respondent-Appellant (hereinafter referred to as the Employer-Appellant)
The Employer-Appellant by its answer dated 20th April 1988denied termination of the Respondent's services and stated inter-aliathat;
the Applicant-Respondent was transferred to the Anuradhapurabranch of the Employer-Appellant Corporation by letter dated 3rdNovember 1987 with effect from 02.12.87;
he had failed to report for duty at Anuradhapura despite severalrequests from the Employer-Appellant; and that
the Applicant-Respondent was finally treated as having vacatedhis services with effect from 15th December 1987 by letter dated 10thFebruary 1988 which has been produced marked R-11.
The President of the Labour Tribunal after inquiry held that theApplicant-Respondent did not have any intention of reporting for dutyat Anuradhapura and had vacated service. He accordingly dismissedthe application of the Applicant-Respondent.
The Applicant-Respondent appealed against the said order to theHigh Court of Galle.
The High Court having heard submissions of Counsel on behalfof the parties held that the order of the learned President waserroneous when he held that the Applicant-Respondent had vacatedservice and accordingly directed that the Applicant-Respondent bereinstated in service with back wages.
The present appeal is against the order of the High Court.
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It was the case of the Applicant-Respondent that he was appointedto the Employer-Appellant's branch in Galle as a Grade 4 clerk onthe 7th October 1978 (A – 1). On the 29th of July 1992, he waspromoted to the post of storekeeper Grade III and was functioningin that capacity at the Galle branch, when in November 1987, byletter (R — 1) he was transfered in the same capacity to the branchoffice Anuradhapura with effect from 2nd December 1987.
The Applicant-Respondent appealed against this transfer by hisletter dated 09.11.87 (A – 6). In this letter he sought the cancellationof this transfer on the following grounds.
unsettled state of the country and the danger to be away
from home,
hiseconomicproblems,
hisdifficultiesof travel and
hispersonal family problems.
Thereafter the Applicant-Respondent by his letters dated 19.11.87(A – 7) and 22.11.87 (A – 8) had made representations to the Branchmanager, Galle and the Prime Minister to have his transfer toAnuradhapura cancelled. In document A – 7 and A – 8 he has urgedhis state of ill-health among other reasons to justify his request. Inthe petition addressed to the Prime Minister the Employee-Respond-ent states as follows:
" I1 m not in a position to leave a four month old daughter andmy wife all alone at Galle and leave to such a distant and remoteplace as Anuradhapura.
It is not possible for me to maintain a family with Rs. 750, as
Rs. 880 from my salary is being deducted for the bank loam
This pittance is insufficient even as travelling expenses toAnuradhapura."
" Finally my health condition is so weak that it does not permitme to work in a place like Anuradhapura for I had been an asthmaticfrom my boy-hood as such it may be aggravated by this transfer toan uncongenial place as Anuradhapura."
Admittedly on the 8th November 1987 the Applicant-Respondentwas informed by letter R – 1 that he was transfered from the Galle
SC Building Materials Corporation v. Jathika Sevaka Sangamaya (Perera, J.)319
depot to the Anuradhapura depot with effect from 2nd December1987. By R – 2 dated 30.11.87 he was informed that he was relievedof his duties at the Galle depot from 30.11.87, and was directed toreport to work at the Anuradhapura branch.
According to the evidence the Applicant-Respondent failed toreport for work at the Anuradhapura depot as directed but submittedan application for leave from 1st – 14th of December 1987 (A – 10a)together with a Medical certificate (A -10b) which was issued by aprivate doctor, stating that the Applicant-Respondent was sufferingfrom asthma and recommending that he be granted 14 days leavefrom 01.12.87.
According to the Employer-Appellant on receipt of the leaveapplication together with the Medical cetificate marked A – 10 b theCorporation by letter dated 27.12.87 R – 2 informed the Applicant- Respondent that although the medical certificate has been receivedto cover a period of 14 days from 01.12.87 no notification of absencewhatsoever had been received thereafter although he had still failedto report for work.
He was also informed by R – 3 dated 24.12.87 that if the causeof his continued absence was illness, a medical certificate from agovernment doctor should be submitted within 7 days of the receiptof that letter. If not the Applicant-Respondent would be consideredas having vacated his post. (The submission of a medical certificatefrom a government doctor is a requirement for obtaining medical leavein terms of section 3.2 of leave circular produced marked R-13).
Further by letter dated 28.12.87 (R—5) the Corporation informedthe Applicant-Respondent that his failure to report for work atAnuradhapura had stalled stock taking and handing over operationsat that depot, and that his request for the cancellation of his transfercould not be granted. The Applicant-Respondent was also directedto report for work at the Anuradhapura depot forthwith. This letterwas followed by a letter dated 8th January 1988. (R-4) whereby thePersonnel Manager of the Corporation informed the Applicant-Respondent that although he was transferred from the Galle depotto the Anuradhapura depot with effect from, 2nd December 1987,the Applicant-Respondent had yet failed to report to work atAnuradhapura up to 25th December 1987. He was warned finally that
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if he failed to report for work immediately at that branch he wouldbe treated as having vacated his post.
Finally on the 10th of February 1988, the Appellant Corporationinformed the Applicant-Respondent that having furnished a medicalcertificate from a private doctor dated 30.11.87 convering a periodof 14 days from 1 December 1987, he had failed to forward a medicalcertificate from a government medical officer for the period commenc-ing 15th December 1987, although he had been repeatedly requestedto do so on a number of occasions. As he had failed to report forwork at the Anuradhapura depot upto that date, he was deemed tohave vacated service with effect from 15th December 1987 (R—11).
The Applicant-Respondent did not reply letter R – 11 but insteadfiled an application in the Labour Tribunal on the 8th March 1988alleging unlawful termination of his employment by the EmployerAppellant.
Having regard to the facts set out above I am of the view thatthe learned President has rightly held that the evidence anddocuments produced at the inquiry established that,
Applicant who was transferred to Anuradhapura with effectfrom 02.12.87 failed to report for work at the Anuradhapura depot,but absented himself from work on the ground of illness.
that it was a requirement that the period of absence in sucha circumstance should be covered by a medical certificate from agovernment medical practitioner and that
as the Applicant continued to absent himself withoutproducing such acceptable certificates in proof of illness the employercould act on the basis that the applicant had vacated his post. Thelearned President has also observed that it was clear on the evidencethat the Applicant-Respondent had no intention to report to workat Anuradhapura and had thus voluntarily vacated service.
Counsel for the Applicant-Respondent urged that on the evidenceadduced before the Labour Tribunal, it was not established that theApplicant-Respondent has vacated service, and that such a findingon the part of the President was not based on the evidence led at
SC Building Materials Corporation v. Jathika Sevaka Sangamaya (Perera, J.)321
the inquiry. It was counsel's submission that the desertion or aban-donment (vacation of employment) means absence without leavecoupled with an intention not to return to work. It was also submittedthat the burden was on the employer – Appellant to prove both theseelements. Counsel contended that the absence of an employee ongrounds of illness or other reason beyond his control was inconsistentwith an intention to desert. That in the present case the act of forwarding a medical certificate clearly militates against any inferencebeing drawn of an intention to desert on the part of the employee.
Counsel also submitted that an employee who refused to acceptan unjust order of transfer cannot be considered to have vacatedhis post though it may be a ground of dismissal upon inquiry. Counselurged that there was animus-revertendi or intention to report for workon the part of the Applicant-Respondent and refusal to permit aworkmen to continue in employment in such circumstances wouldconstitute a constructive termination of his employment.
Counsel submitted further that it would have been open for theEmployer-Appellant to have placed the Applicant-Respondent onno-pay leave for non-compliance with the leave circular R-13. Thefailure to produce a medical certificate from a Government doctor incontravention of R-13 per se however would not constitute an in-tention to abandon employment.
I am in agreement with the submission of counsel for theApplicant-Respondent that the absence from work, of an employeeon the ground of illness or other reason beyond his control isinconsistent with the intention to abandon his employment providedthat there were no other circumstances from which an inference tothe contrary could be drawn.
In the present case however there are numerous circumstancesfrom which it is possible to draw the inference that illness was merelya ruse to avoid reporting for work at the Anuradhapura depot andin the light of the evidence in this case the learned President wasright when he came to the conclusion that the Employee-Respondenthad no intention whatsoever of reporting to work at Anuradhapurain compliance with the order of transfer. In this connection it wouldbe relevant to state that the only medical certificate which itself wasnot issued by a government medical practitioner described the nature
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of the Employee-Respondent's illness as asthma. The Applicant-Respondent has in his evidence before the Labour Tribunal admittedthat the nature of this illness was not one which prevented him fromworking and therefore he could have reported at his place of work.
It must also be observed that having regard to the evidence inthis case and the documents produced, a grave doubt arises as towhether his absence from work was actually due to illness. This doubtis strengthened by the fact that his original protest against the transferin document A – 6 dated 09.11.87 – he has made no referencewhatsoever to the fact that he was unable to report to work atAnuradhapura due to ill health. Yet another matter which gives riseto a very strong doubt regarding his ill health is the fact that despiteseveral letters written by the corporation to the Applicant-Respondentto furnish a medical certificate in accordance with the rules set out.in circular R – 13 the Applicant-Respondent has failed to satisfy theemployer that he was in fact ill and that he was not fit to reportfor work at Anuradhapura.
In the circumstances I am of the view that the Employer-Appellanthas in this case proved that the Applicant-Respondent was absentwithout leave from 15.12.87 for a period of approximately two monthsand that it is reasonable on the facts established in this case to drawthe inference that the Applicant-Respondent had no intention to reportfor work at the Anuradhapura depot.
Where an employee endeavours to keep away from work orrefuses or fails to report to work or duty without an acceptable excusefor a reasonably long period of time such conduct would necessarilybe a ground which justifies the employer to consider the employeeas having vacated service. In this case it is clear that the documentR – 11 was served on the Applicant-Respondent after he had beengiven several opportunities to regularise his position and to reportfor duty at Anuradhapura which he persistently failed to do.
The Applicant-Respondent was admittedly in a transferable serviceand the Employer’s right to transfer his staff within his service is toowell established and has received firm recognition in this country. SeeCeylon Estate Staff Union v. Superintendent Meddacombra Estate <1)and CTB v. Thungadasa (2).
SC Building Materials Corporation v. Jathika Sevaka Sangamaya (Perera, J.)323
An intention to remain away permanently must necessarily beinferred from the Employee's conduct and I hold that long absencewithout obtaining leave or authority is evidence of desertion orabandonment of service.
I find support for this view in the observations of the IndianSupreme Court in Jeevan Lai v. Their Workmen <3).
" If an employee continues to be absent from duty withoutobtaining leave and in an unauthorised manner for such a long
period of timean inference may reasonably be drawn
from such absence that due to his absence he has abandonedservice "
It is clear from the evidence in this case that the Employee-Respondent by his conduct severed the contract of service whichresulted in the termination of his service.
I accordingly set aside the judgment of the High Court dated
and affirm the order of the Labour Tribunal dated 18.06.90dismissing the Application of the Applicant-Respondent.
The appeal is allowed. There will be no costs.
BANDARANAYAKE, J. – I agree
DHEERARATNE, J. – I agree.Appeal allowed.