040-NLR-NLR-V-71-CEYLON-TRANSPORT-BOARD-Appellant-and-CEYLON-TRANSPORT-WORKERS’-UNION-Res.pdf
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Ceylon Transport Board v. Ceylon Transport Workers’ Union
1968Present: Tennekoon, l.
CEYLON TRANSPORT BOARD, Appellant, and CEYLONTRANSPORT WORKERS’ UNION, Respondent
S. C. 13416?—Labour Tribunal Case No. 7/28,632
Industrial Disputes Act—Sections 31B (1), 11C {!), 3b'(4)—Termination of a •work-man's services—Application to Labour Tribunal for relief—Extent to whichthe Tribunal is not bound by the provisions of the Evidence Ordinance—Power of Tribunal to make a “jtist and equitable ” order—Scope—Duty ofTribunal to act judicially in evaluating evidence.
The Ceylon Transport Board terminated the services of a workman becausehe was a party to the theft of certain articles belonging to the Board. Whenapplication for relief was made to a Labour Tribunal in terms of section 31B(1)of the Industrial Disputes Act, evidence of a written statement made by theworkman to a Security Officer admitting his complicity in the theft was notgiven due weight by the President on the ground that “ the statement wouldprobably not have been admissible in 9 criminal case; although the Tribunalis not bound by the rules of evidence, such a statement must be receivedwith caution".
Held, that Section 36 (4) of the Industrial Disputes Act which provides thatin the conduct of proceedings a Labour Tribunal shall not be bound by any ofthe provisions of the Evidence Ordinance is only intended to permit a Labour
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Workers' Union
Tribunal in its discretion (which must be exercised reasonably) to admit a«evidence all matter which it- considers material oven though a court of lawwould not regard it as judicial evidence. It docs not enable a Tribunal toapply exclusionary rules of evidence more rigorous than those contained in theEvidence Ordinance. A proceeding before a Labour Tribunal is not a criminalcase and even if the President was inclined to guide himself by the rules ofrelevancy contained in the Evidence Ordinance, Section 24 thereof (which wasobviously the only Section which he could have had in view) could not In*availed of, since that Section applies only to criminal cases.
Held further, that Section 31C (1) of the Industrial Disputes Act whichprovides that “ where an application under Section 31B is made to a labourtribunal, it shall be the duty of the tribunal to make all such inquiries into thatapplication and hear all such evidence as the tribunal may consider necessary,and thereafter make such order aa may appear to the tribunal to be just andequitable ” must not be read as giving a labour tribunal a power to ignore theweight of evidence or the effect of cross-examination on the vague andinsubstantial ground that it would be inequitable to one party so to do. It isonly after he has ascertained the facte in a judicial manner that the Presidentmust proceed to make on order that is fair fund equitable, having'regard to thefacte so found. ‘‘ The reference in many texts and judgments to the powers ofindustrial courts and similar tribunals as ‘ arbitral ’ as opposed to ' judicial *must not be understood to mean that- these tribunals are licensed to setarbitrarily.*’
A.PPEAL from an order of a Labour Tribunal.
N. Satyendra, for the Employer-Appellant.
No appearance for the Applicant-Respondent.
Cur. adv. vull.
July 13, 1968. Tekmskoon, J.—
This is an appeal to this Court under section 31JD (2) of the industrialDisputes Act taken by the Ceylon Transport Board—the Employer—froman Order made by a Labour Tribunal under section 31C (1).
The respondent—the Ceylon Transport Workers’ Union—applied forrelief or redress under section 31B (1) of the Act on behalf of a workman,one R. D. Premadasa, whose services had, it was alleged unjustifiably,been terminated by the Employer.The Employer-Appellant's position
was, substantially, that (he workman Premadasa collaborated withanother or others in the dishonest removal of a timing chain from theStores section of the Ceylon Transport Board’s installations at Werahera.The appellant had no direct evidence of the theft but produced a docu-ment (Rl), admittedly signed by the applicant, in which he admittedcomplicity in the theft. Evidence was also produced of the circum-stances in which the workman came to make that confession. TheSecurity Officer Mapitigama was the main witness for the appellant. Hestated that he received certain information which led him, together withWatcher Wilman and another, to keep watch on the movements of the
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workman Premadasa and in particular to see whether Premadasa or. anyone else would try to remove an item of Ceylon Transport Boardproperty that had been secreted in a tea kiosk standing near the maingate at Werahera; he stated further that he and Wilman apprehendedthe workman and one Siriwardene as they were leaving the tea kiosk ; atiming chain was found in a parcel which Siriwardene was carrying andthe applicant when questioned admitted his complicity. Mapitigamarecorded the statement of the applicant and this was signed by him. Thelawyer appearing for the applicant cross-examined the Security Officerand in the course of cross-examination put the following question which,it is legitimate to assume, was on instructions from his client:—
' Q. 1 am instructed that you forced him to sign on a blank paper ? ’’which was answered with a denial.
Wilman, a watcher of the Ceylon Transport Board, stated that he wentout with the Security Officer about 4.30 p.m. on that day and followedPremadasa when he was leaving after work ; Premadasa entered the teakiosk and he followed him, keeping out of his view. Here he saw theworkman take a parcel from the kitchen section of the kiosk and hand itover to Siriwardene, a boy of about 18 employed at the kiosk; theworkman left the boutique by a side door and Siriwardene left shortlythereafter ; he and the Security Officer, who had been hiding outside thekiosk apprehended both Siriwardene and the workman. The parcel inSiriwardene’s hand contained the timing chain. Except for noting avery minor and inconsequential contradiction in the evidence of Mapiti-gama and Wilman the President of the Labour Tribunal does not saythat he disbelieves these two witnesses.
The applicant himself gave evidence ; while not denying his presencein and near the tea kiosk at the time when Siriwardene and he wereapprehended, he stated as follows in evidence-in-chief:—
“ Before I went to the halt I went to the boutique, had a cup of teaand then lit a cigarette and walked to the bus stand. Many workerswent to have tea at that time on that day. I stayed in the boutiquefor about 5 minutes. ‘ When I was at the bus halt Mr. Mapitigama andthe watcher came and called me to a side saying that they had to tellme something. When I went near them Mr. Mapitigama, the SecurityInspector, held me by my hand and took me inside the office of SecurityInspector. That office was inside the workplace. Mr. Mapitigamashowed me a parcel and asked me whether I had given it to a boy. Healso showed me the boy. The boy was inside the office of the SecurityInspector. I did not know what was inside the parcel. It waswrapped up in paper. I did not take it into my hand. They openedthe parcel and showed me a Timing Chain and they asked me whetherit was handed over by me. I said that I did not know anythingabout it. I knew that the boy was an employee of the tea boutique.I did not make a written statement. Mr. Mapitigama took the photopace from me and showed me the signature and asked me whether I
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oould sign it on a piece of paper and threatened that if I did not pat itdown that I would be assaulted. I put my signature at the verybottom of the paper as it was indicated to me.”
The suggestion here (as in the question put in cross-examination toMr. Mapitigama) was that he was forced by fear of threats of assault toput down his signature at the bottom of a single blank sheet of paper. Incross-examination he was shown the original of his statement; it con-sisted of two pages; the applicant’s signature appears at the bottom ofthe first page and at the end of the statement on the 2nd page; on the2nd page the statement ends close to the middle of the page and thesignature is at that point and nowhere near the bottom of that page ;both pages were shown to the applicant and he admitted that bothsignatures were his. The cross-examination continued as follows :—
Q.I put it to you that Mr. Mapitigama reduced to writing whatyou stated to him !
A. 1 deny that.
Q.After reducing it to writing it was read and explained to you ?
A. I deny that.
Q.You also read it before you signed it ?
A. I was asked to sign on a blank paper.”
The cross-examination ended at this stage and it is obvious that theapplicant’s story of his having been forced to place his signature on ablank sheet of paper which was later filled up by Mapitigama was un-worthy of credit. The President of the Labour Tribunal himself steppedin at this stage with some questions. The record reads as follows :—
“ TRIBUNAL: On one blank sheet or on more than one blank paper 1
A. Two blank papers.
Q.You said you were given a blank form ; where did you sign ?
A. I signed where it was pointed out to me. He asked me to signright at the bottom.
Q.Then in the next page he asked you to sign in the middle of thepage ?
A. Yes.”
After this there was naturally no re-examination when the President hadput into the mouth of the witness the answers which he should give if hewas to be believed.
I now reproduce extracts from Premadasa’s statement to the SecurityOfficer (Rl), the original of which is in Sinhala in the handwriting ofMapitigama and signed by Premadasa on both pages :
“ I work in the Civil Engineer’s Division. I work there as miengineering-labourer. Today (22-3-66) I came for work at 7.30 a.m.At about 2.30 p.m. when I went for tea to canteen number 1,1 met
PP 006137 (98/08)
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Workers’ Union
there Mr. Norman who works in the Stores Section. He asked me tocome into the Supplies Division (canteen) where tea is served. Hesaid that there was an article for removal. He said, “you come in.There is an article. Take it for me to the road.” At about 2.40 p.m.after I have had my tea, and as requested by him I entered throughthe “ D ” door, went through the middle of the workshop, came outfrom the door of the engineering section, entered through the door ofthe Supplies Division and went to the tea-drinking place. At thistime Norman came up to me from “ E ” and “ F ” stores. Thereafterhe gave me a chain which he had rolled in the shape of a ball and whichhe had secreted in his waist. When this chain was handed over to meit was not wrapped in anything. It had been shaped to the shape of
a ball. I then took it and hid it in my waist
Taking the chain with me I returned to the tea-drinking place in the supplies section along the same route I took andgot out from the main gate and went to the planked tea boutique(which is situated to the South when one proceeds towards the road)which is close to the main gate. Norman came to the spot (tea-boutique) as mentioned when handing over the article. All this tookplace at the tea time. At that time Norman told me to hide thechain in the rear of the boutique to be removed when leaving afterwork.
As requested by him I hid the chain at a certain place behind theboutique. Thereafter Norman went in the direction of the road. Iwent to my place of work. I worked till 4.30 p.m. and after my workwas over, I went once again to the boutique where the article waskept. I met U. D. Ratnapala Siriwardene inside the boutique. ThenI showed him the chain which I hid, asked him to bring it to the roadand told him that Mr. Norman and I will be at the bus halt. I askedhim to give back the article at the bus halt.”
The President made his order on 13-9-67 and concluded as follows:—
“ The evidence in this case does give rise to a suspicion that theworkman concerned himself with the theft of this chain but the caseagainst the applicant in my opinion was not proved with such degreeof probability as would justify the conclusion that the workman wasguilty of the charges preferred against him by the Board. At the sametime I am of the view that the workman should not have put himselfinto that position of suspicion that is apparent in this case. I orderthat the workman be reinstated. He will not, however, be entitled toany wages for the period of non-employment.”
It seems to me that the Tribunal has completely failed to evaluatethe evidence before him. After summing up the evidence on both sidesthe President says :—
“ The statement R1 would probably not have been admissible in a' criminal case; although the Tribunal is not bound by the rules ofevidence such a statement must be received with caution.”
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Section 36 (4) of the Act provides that in the conduct of proceedings aLabour Tribunal shall not be bound by any of the provisions of theEvidence Ordinance. This is only intended to permit a Labour Tribunalin its discretion—which of course must be exercised reasonably—to admitas evidence all matter which he considers material even though a courtof law would not regard it as judicial evidence. Section 36 (4) must notbe regarded as a provision which enables a Tribunal to apply exclusionaryrules of evidence more rigorous than those contained in the EvidenceOrdinance. A proceeding before a Labour Tribunal is not a criminalcase and even if the President was inclined to guide himself by the rulesof relevancy contained in the Evidence Ordinance, section 24 thereof(which is obviously the only section he could have had in view) could nothave been availed of, since that applies only to criminal cases. Twoquestions arose for the Tribunal in regard to the alleged admission Rl.The first was whether the statement was in fact made by Premadasa;the second, if so whether it could safely be relied on as containing thetruth. The Tribunal has failed to deal with either question. If it had.it seems to me on a full evaluation of the evidence that the answer toboth questions should have been in favour of the Employer-Appellant.
Immediately after the sentence quoted above appears the following :—
“ The main evidence against the applicant before this Tribunal isthis confession and the statement of the watcher that he saw theapplicant hand over a parcel to Siriwardene. I do not think that itwould be equitable to hold either on the document Rl or on the rest ofthe evidence in this case that the respondent Board has proved thatthe applicant committed theft or attempted to commit theft of theTiming Chain.”
The Tribunal is here perhaps echoing the words of section 31C (1) whichreads as follows :—
“ Where an application under section 31B is made to a labour tri-bunal, it shall be the duty of the tribunal to make all such inquiriesinto that application and hear all such evidence os the tribunal mayconsider necessary, and thereafter make such order as may appear tothe tribunal to be just and equitable.”
This section must not be read as giving a labour tribunal a power toignore the weight of evidence or the effects of cross-examination on the▼ague and insubstantial ground that it would be inequitable to oneparty so to do. There is no equity about a fact. The tribunal mustdecide all questions of fact “ solely on the facts of the particular case,solely on the evidence before him and apart from any extraneous con-siderations ” (see R. v. Manchester Legal Aid Committee Ex parte Brand<k Co. Ltd.1). In short, in his approach to the evidence he' must actjudicially. It is only after he has so ascertained the facts that he enters
1 {1952) 1 A. E. R. 480.
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Mariyathaaan v. Roue –
upon the next stage of his functions which is to make an order that isfair and equitable, having regard to the facts so found. To say of oneparty’s case that it would not be equitable to reach a conclusion a gainstthe other on the evidence produced by the former is to apply an undis-closed and unascertainable standard of proof to that party’s case andindeed to act arbitrarily and not judicially. The reference in man}'texts and judgments to the powers of industrial courts and similartribunals as ‘ arbitral ’ as opposed to ‘ judicial ’ must not be understoodto mean that these tribunals are licensed to act arbitrarily. I find itdifficult in the circumstances to regard the decision of the Tribunals inthis case as a decision within the meaning of the Act.—
The appeal is accordingly allowed and the order of the Tribunal setaside.
Appeal allowed.