Ceylon Oil Workers’ Union v. Ceylon Petroleum Corporation

012-SLLR-SLLR-1978-79-V2-Ceylon-Oil-Workers’-Union-v.-Ceylon-Petroleum-Corporation.pdf


72
Sri Lanka Law Reports
(1978-79) 2 S.L.R.
Ceylon Oil Workers' Union
v.Ceylon Petroleum Corporation
COURT OP APPEALRATWATTE, J. AND TAMBIAH, J.
C. A. (S.C.) 175/77.
NOVEMBER 7, 1978.
Labour Tribunal—Appeal on question of law—Whether evidenceavailable to support determination—Fraud committed by workman—Termination justified.
Held
In an appeal from the order of a Labour Tribunal the plea thatthere was no evidence to support a determination can be raised asa question of law. In the present case there was such evidence tosupport the finding of the Tribunal that1 the termination was justi-fied.
Where the misconduct of the workman lay in the commission ofa fraud on the employer, the misconduct is of so serious a nature thatit strikes at the very foundation of the contract' of service andwarrants summary dismissal. The workman had been placed in aposition of trust and confidence by the employer in the expectationthat he would discharge his duties honestly and conscientiously, buthad shown by his conduct that- he can no longer command the con-fidence of his employer. The continuation in service of such anemployee would prejudice the good name, reputation and interests ofthe employer.
Cases referred to
Queen v. Kularatne, (1968) 71 N.L.R. 529.
Jupiter General Insur. Co. v. Shroff, 1937 (3) All E.R. 67 (P.C.)
APPEAL from a Labour Tribunal.
Prins Gunasekera, for the appellant.
H. S. Yapa, State Counsel, for the respondent.
Cur. adv. vult.
January 24, 1979.
TAMBIAH, J.
The applicant-appellant, on behalf of its member one K- D.
S. Perera, made an application to the Labour Tribunalstating that his employment was unjustifiably terminated bythe respondent-corporation, and prayed for re-instatement andback wages for the period of non-employment. At the time ofthe termination of his employment, Perera was the Bulk Depot.Superintendent, at Matara.
There is in operation in the Ceylon Petroleum Corporation aMedical Assistance Scheme, under which an employee of theCorporation was entitled to claim re-imbursament of medicalexpenses incurred by him. Under this scheme each employeewas issued with a “ Treatment Card ”. On this card, particulars
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Ceylon Oil Workers' Union v. Ceylon
Petroleum Corporation (Tambiah, J.)
relating to routine medical expenses (e.g., treatment by a gene-ral practitioner), consultants’ and specialists' fees, and expensesincurred for clinical tests are required to be entered. Medicalexpenses are to be supported by bills from medical practitio-ners. On presentation of the medical bills and the treatmentcard, an employee was repaid the expended money.
On behalf of the respondent-corporation, Perera, amongst hisother duties, was entrusted with the administration of themedical assistance scheme at Matara; it was he who personallyentered the necessary particulars in every treatment card issuedto the employees. There can be no doubt that Perera was quiteconversant with the operation of the scheme and the formalitiesthat ought to be observed before an employee can make a claimfor reimbursement of the medical expenses he has incurred.
It would appear from the evidence that one S. Thalpahewawas detailed by the respondent-corporation to investigate intothe alleged abuse and misuse of and malpractices in connectionwith, the medical assistance scheme by the corporation emplo-yees at Matara. In the course of his investigation, he discoveredthat certain bills issued by one Dr. Abeysinghe, who was onthe panel of doctors nominated by the corporation, to two em-ployees, one Mendis and one Hemapala, purporting to be chargesfor channelling two medical specialists, were not genuine- Thetwo workmen had obtained reimbursement on the basis of themedical bills issued by Dr. Abeysinghe. On the reports submittedby the investigating officer Thalpahewa, the two workmen wereinterdicted. In the course of the domestic inquiry against them,it transpired that K. D. C. S. Perera and others had also obtainedsimilar bills from Dr. Abeysinghe and claimed reimbursementof medical expenses incurred for obtaining specialist treatmentthrough the channel practice scheme. Thalpahewa after investi-gation had submitted a further report against K. D. C- S. Perera,who was interdicted and after a domestic inquiry, his serviceswere terminated on 10.61975-
The respondent-corporation in their statement dated 17.11.1975alleged several charges against the workman Perera to justifyhis dismissal. At the inquiry before the Labour Tribunal, therespondent-corporation confined its case to the charge of mis-conduct contained in paragraph 6 (1), (2) and (3) which readsas follows :—
6 (1) that he did whilst being employed at the Matara Depottogether with M. D. Mendis and others concerned inthis matter fraudulently obtain from Dr. V. P. S.Abeysinghe of Poly Clinic, Matara, a false receipt for
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a sum of Rs. 25 to show that he was examined by Dr.
R.L. Fernando, Medical Specialist and forwardedsame for reimbursement and that he did fraudulentlyobtain from the Corporation a sum of Rs- 25 and there-by committed an act of gross misconduct;
that in the course of the same transaction he did mislead
the Corporation into the belief that on 21-8.73 a paidconsultation with Dr. R. L. Fernando, Medical Specia-list was privately arranged to obtain medical adviceand that on the said false pretence forwarded to theCorporation a receipt for a sum of Rs. 25 obtainedfrom Dr. V. P. S. Abeysinghe and fraudulently ob-tained payment thereof with the knowledge that aloss will be caused to the Corporation;
that he did, by his conduct as stated in paragraphs (1)
and (2) above fail in his duty to protect the goodname of the Corporation and thereby brought theCorporation into public disrepute.
The respondent’s witness, S- Thalpahewa, testified to theevents leading up to the domestic inquiry in consequence ofwhich the services of Perera were terminated. Amongst otherdocuments, he produced R5 dated 21.8.77, a signed receipt allegedto have been issued by Dr- Abeysinghe which reads, “ Receivedfrom K. D- C. S. Perera a sum of Rs. 25 as channelling chargesfor Dr. R. L. Fernando, Physician R6 dated 21.8.77, anothersigned receipt alleged to have been issued by Dr. Abeysinghewhich states, “ Received from K- D. C. S. Perera a sum of Rs-20 for medicines supplied to him R7. a specimen copy whichsets out the medical assistance scheme ; R7A, the treatmentcard isued to Perera, wherein under his own hand against thedate 21.8.77, Perera has entered the name of Dr. Abeysingheand claimed a sum of Rs- 20 on the basis of the receipt R6 andalso entered the name of Dr. R. L. Fernando and claimed a sumof Rs. 25 as specialist’s fee on the basis of the document R5; Rlla letter addressed by the respondent to the D.M.O., Matara,inquiring whether on 21-8.73 Dr. R. L- Fernando had been chan-nelled by Dr. Abeysinghe to examine K. D. C. S. Perera and R12the D.M.O’s reply dated 18.4.74 stating that the specialist Dr.R. L. Fernando had not been chanelled by Dr. Abeysinghe toexamine Perera on 21.8.73 ; R8, the Attendance Register for1973, Matara Bulk Depot, according to wnich Perera on 20-8.73had been working from 7-05 a.m. till 6.5U p.m. and on 21.8.73from 7.20 a.m- to 8.20 p.m.
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Petroleum Corporation (Tambiah, J.)
The respondent’s only other witness, Dr. K. Gunaratne, D.M.O.,Matara, described the channel practice scheme and stated thatthe services of a specialist medical practitioner in governmentservice could be availed of by an out-door patient on paymentof a specified fee to the channel consultation office. An out-doorpatient could himself personally obtain the services of a medicalspecialist by making direct payment to the channel consulta-tion office or obtain the services of a medical specialist througha private practitioner, in which event the private practitionerwas responsible for the payment of the specified fee to thechannel consultation office; a patient could also see the specia-list at the hospital O.P.D. clinic without going through theformality of channelling and this did not involve any payment offees. He further stated that according to the registers maintainedat the channel consultation office, neither Perera directly norDr. Abeysinghe on his behalf had obtained the services of Dr.R. L. Fernando either on 21.8.73 or on any other day in Augustor in July 1973; nor was there an entry pertaining to the pay-ment of Rs. 25 to Dr. Fernando. Dr. Gunaratne also identifieddocument R12 as one signed by his predecessor in office.
For the applicant, the workman Perera was the sole witness.He stated that he fell down from a bowser on 16.8.73 and consultedDr, Abeysinghe on 20.8.73, who issued to him a report anddirected him to see Dr. Fernando at his clinic on the same day.He accordingly saw Dr. Fernando at the hospital clinic on 20.8.73.On the next day 21.8.73 he saw Dr. Abeysinghe who issued to himthe document R5 being a receipt for Rs. 25 for “ channellingcharges for Dr. R. L. Fernando ” and R6 for Rs. 20 being Dr. Abey-singhe’s charges for medicines supplied to Perera. On the basisof R5 and R6 he perfected the treatment card R7 and enteredthe payment of Rs. 20 as out-door treatment charges paid toDr. Abeysinghe and Rs. 25 as specialist fees to Dr. Fernando andthe respondent-corporation reimbursed him with those two sumsof money. Perera admitted that he was cognisant with thechannel scheme; that Dr R. L. Fernando was not channelledunder the channelling scheme, and that no payment was due toDr. R. L. Fernando and that in fact no payment was made to himeither by him or through Dr. Abeysinghe.
At the conclusion of the inquiry the learned President dis-missed the application and held that the workman Perera’stermination of services was justified. In his order the learnedPresident stated: —
“ From the evidence and other data laid before me in thiscase I am of opinion that the workman had fraudulentlyobtained a fictitious receipt from a private practitioner
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Dr. V. P. S. Abeysingfae of Poly-clinic, Matara. This bill wasdated 21.8.75 for a sum of Rs. 25 indicating that he has beenexamined by Specialist Dr. R. L. Fernando when on the dayin question the said specialist had not been summoned by theChannelled Consultation Office and no indication of thispayment was reflected in the registers maintained at theChannelled Consultation Office as stated by Dr. K. Gunaratne.D.M.O., who gave evidence before this Tribunal. Hence Icome to the conclusion that the workman K. D. C. S. Pererahas fraudulently obtained reimbursement from the Corpo-ration for a payment which he had not, in fact, made asmedical expenses. Hence I am of opinion that the workmanon obtaining reimbursement on R5 has committed a breachof discipline whilst holding a responsible position as Superin-tendent of the Depot. ”
Learned counsel for the applicant-appellant submitted thatthere is no evidence to support the finding that the documentR5 is a “ fictitious receipt ”. He submitted further that documentR5 was produced in evidence by the respondent; it is not therespondent’s position that R5 is a forgery; having produced R5,the burden was on the respondent to prove that it was not agenuine document; R5 states that Rs. 25 has been received fromthe workman Perera “ as channelling charges for Dr. R. L. Fer-nando ” and that t’ne only two persons who could have substan-tiated the charge against Perera were Dr. Abeysinghe andDr. Fernando, both of whom, have neither been questioned bythe investigating officer Thalpahewa nor called to testify at theinquiry before the Tribunal.
He further submitted that the absence of an entry in theregister regarding payment of Rs. 25 to Dr. Fernando is notconclusive evidence; it does not rule out the possibility of themoney being received by Dr. Fernando. So too the AttendanceRegister, R18, is not conclusive evidence of the workman Pererano i having seen both doctors.
An appeal from an order of a Labour Tribunal can only bepreferred on a point of law. “ In cases where an appeal is givenon a matter of law, a plea that there was no evidence to supporta determination is always permitted to be raised as a questionof law. Whether there is sufficient evidence or whether theevidence is reasonable, trustworthy or conclusive, or, in otherwords, the weight of evidence is a question of fact ”—pf rSamerawickreme, J. in Queen v. Kularatne (1) at 555.
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Ceylon Oil Workers' Union v. Ceylon
Petroleum Corporation (Tambiah, J.)
77
It seems to me that the crux of the charge against the work-man Perera is that by falsely representing to the respondent-corporation that the specialist Dr. Fernando had been channelledby Dr. Abeysinghe to examine him, he had incurred Rs. 25 aschannelling charges and thereby induced the respondent-corporation to reimburse him in a sum of Rs. 25. The plainconstruction to be placed on document R5 is that the workmanPerera had paid Rs. 25 to Dr. Abeysinghe as charges for channel-ling the specialist Dr. Fernando to examine him.
The D.M.O., Dr. Gunaratne’s evidence is clear that Dr. Fer-nando had not been channelled by Dr. Abeysinghe to examinethe workman Perera nor has any specialist’s fees been paid toDr. Fernando. It is Perera’s own admission that he was notexamined by Dr. Fernando under the channelling scheme andthat no payment was due as channelling charges, and that he wasexamined at the hospital O.P.D. clinic for which no paymentwas due. One therefore fails to appreciate how, in terms of thedocument R5, Perera could have paid Dr. Abeysinghe Rs. 25 aschannelling charges, when on his own admission, he has had afree clinical examination which involved the payment of no fees.
The attendance register R8 shows that on 20.8.73 Perera hadbeen on duty from 7.05 a.m. to 6.50 p.m. and on 21.8.73 from7.20 a.m. to 8.20 p.m., on the basis of which he was admitted topayment for overtime work. In the light of the document R8his evidence that he consulted Dr. Abeysinghe and Dr. Fernandobecomes suspect. In my view there is evidence to support thefinding of the learned President that the termination of employ-ment was justified.
Learned counsel for the applicant-appellant also submittedthat the respondent-corporation had no right to terminate theservices of the workman Perera in view of Rule 13 contained inthe Medical Assistance Scheme (R7), which is reproducedbelow:—
“ Where in the opinion of the Committee of Managementan employee has directly or indirectly abused or misused orhas attempted to abuse or misuse or has aided or abetted theabuse or misuse in any manner whatsoever of the facilitiesprovided under the Ceylon Petroleum Corporation “ MedicalAssistance Scheme ”, such employee shall be disentitled toreceive further facilities under this scheme, provided that thedecision of the Committee of Management shall be subject toappeal to the Board of Directors, whose decision shall befinal and conclusive. ”
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Learned counsel submitted that the punishment for the abuseor misuse of the facilities provided under the Scheme is spelt outin Rule 13 itself, viz., deprivation of further facilities under theScheme and therefore the respondent-corporation was not justi-fied in terminating the workman Perera’s employment. I amunable to agree with this submission. The misconduct of theworkman Perera lay in the commission of a fraud on ttie respon-dent-corporation, by putting forward a false claim and false to hisknowledge, on which he claimed reimbursement. The commis-sion of a fraud is misconduct of so serious a nature, which strikesat . the very foundation of the contract of service and warrantssummary dismissal. However, the respondent-corporation hadafforded him a domestic inquiry and thereafter terminated hisservices.
Learned Counsel for the applicant-appellant also submittedthat the order of the learned President dismissing the applicationof the workman Perera and holding that the termination of hisservices was justified was not a just and equitable one, for thereason that it was in the course of investigation and inquiry intothe cases of other workmen who had submitted false medical billsthat the respondent-corporation stumbled on the case of the work-man Perera ; that the respondent-corporation in its answer havingalleged several other charges against Perera, finally confined itscase to one charge only.
As was observed by Lord Maugham in the case of JupiterGeneral Insur. Co. v. Shroff, (2) at p. 74, in determining the ques-tion whether dismissal was justified or not, “ the test to beapplied must vary with the nature of the business and the positionheld by the employee ”. The employer in this case is the CeylonPetroleum Corporation which is a national venture run withpublic funds. The employee Perera was holding the high officeof Superintendent of the Bulk Depot, Matara, and in additionwas entrusted with the administration of the medical assistancescheme at Matara, a scheme intended for the benefit of itsemployees. The respondent-corporation had placed Perera in aposition of trust and confidence, with the expectation that hewould discharge his duties honestly and conscientiously. He hasbelied the hopes of his employer. Perera has shown by his ownconduct that he can no longer command the confidence of hisemployer. The continuation in service of such an employeewould prejudice the good name reputation and interests of theemployer.
Sirisena v. Republic of Sri Lanka
CA
79
Learned State Counsel brought to our notice that, despite thedismissal the workman Perera, in addition to payment of Ed.10,918/26 as Employees Provident Fund, has also been paid asum of Ks. 8,592/50 as gratuity. It is also so stated in the state-ment dated 17.11.75 of the respondent. In view of this, whileaffirming the order of the learned President we remit the appli-cation to the Labour Tribunal in order to ascertain whether thissum of Rs. 8,592/50 has been paid to the workman Perera, and inthe event this amount has not been paid, to make such orders asare necessary, to ensure the payment of the said amount to him.
The appeal is dismissed without costs.
RATWATTE J.—I agree.
Appeal dismissed.