036-NLR-NLR-V-73-CEYLON-TRANSPORT-BOARD-Appellant-and-T.-K.-THUNGADASA-Respondent.pdf
Ceylon Transport Board v. Thungadasa
211
1970
Present : Alles, J.
CEYLON TRANSPORT BOARD, Appellant, and T. Iv. TH UNGAD AS A
Respondent
S. C. 20[GO—Labour Tribunal Case No. 2741
Industrial Disputes Act {Cap. 131)—Section 31 C (1)—“ Just and equitable orders "—Labour Tribunal—Duty to act judicially in evaluating evidence.
■Vhoro a workman joins a transferable scrvico in a Corporation such ns theCeylon Transport Eoaril, it is necessary in the interests of discipline and properadministration that tho omplnyor should bo able to authoriso such transfers.If tho workman refuses to obey a trnnsfor ordor improperly,'a Labour Tribunalmust not tako into consideration irrelevant matters and oxtranoous issuos inmaking an ordor against tho omployer. Tho Tribunal ennnot under tho guiso ofmaking “ just and equitable orders ” mnko orders which in effect dictato to thomanagement how a Department or Corporation should bo run.
It is the duty of a Labour Tribunal to act judicially in evaluating evidenceboforo making just and oquitablo orders.
212
ALLES, J.—Ceylon Transport Heard v. Thunyadasa
Appeal from an order of a Labour Tribunal.
N. Satyendra, for the emplojer-appellent.
No appearance for the applicant-respondent.
Cur. adv. mill.
March 19, 1970. Alles, J.—
This is an appeal from the order of a Labour Tribunal directing(a) that the respondent be reinstated as a technician in the CeylonTransport Hoard from 3rd April 1969 or earlier without any break inhis service; (&) that he be continued to be employed in tho same placeof work; (c) that he should be presented for a vocational test within threemonths of the order and that he should be afforded an opportunity toqualify himself for the higher grade ; and (d) that a sum of Rs. 1,500 bepaid as a compassionate payment in lieu of payment of salary for theperiod of unemployment. It appears to me that some of the directivesordered by the learned President constitute a serious interference with theworking of the Board and fall outside the purview of just and equitableorders that may be made under the provisions of Section 31 (C) (1) of theIndustrial Disputes Act.
The respondent was a trained technician appointed to the Galle Depotof the Ceylon Transport Board from 1st January* 1957. One of thematters that arose for decision in the course of the inquiry was whetherhe was in the 1st class of the trained technical service or whether hewas a 3rd gride assistant technician. In view of the order made bythe Tribunal directing him to appear for a vocational test, the Presidenthas held that the respondent had not qualified for appointment to thehigher grade of 1st class trained technician. This finding is supportedby the documents R6 and R7 produced by the Transport Boardwhich gives the respondent the designation of an “ Assistant technicalemployee" •* in receipt of a salary of Rs. 5 64 per day.
The main question that has been argued in this appeal is whether thetermination of the respondent’s services on tho 21st of July 1966 wasjustified. It is admitted that the respondent belongs to a transferableservice. On 23rd August 1965 by R-l he was transferred to theICurunegala Depot as a mechanic. It has been established in evidencefrom R4 and R5 that in August 19(35 the cadre of the Engineering sectionat Kurunegala was short by two skilled mechanics and four assistant
ALLEYS, j.—Ceylon Transport Board v. ThungadasaitS
mechanics and that for the better administration of the engineeringsection these shortages in the cadre had to be filled. Therefore, primafacie, the respondent’s transfer would appear to be justified. When aperson joins a transferable service in a Government Department or aCorporation it is necessary in the interests of discipline and properadministration that the employer should be able to authorise 6uchtransfers. The learned President in his order, in my-view, has takeninto consideration several irrele^ajit matters and extraneous issues inmaking the order against the employer. One cannot under the guise ofmaking "just and equitable orders” make orders which in effectdictate to the management how a Department or Corporation shouldbe run.
When the respondent received the order of transfer he failed to obeytho order and proceed to Kurunegala but commenced to forward severalpetitions to persons in authority, including the Minister of NationalisedServices, against his transfer. The appeals contained in these petitionsagainst the transfer are, no doubt, matters that would be taken intoconsideration by the employer in deciding whether such orders should beimplemented but if after due consideration the employer considers thatthese representations are without merit the employee is bound to complywith the order of transfer. The employer, after waiting for nearly tenmonths, by A4 of 22nd June 1966 informed the respondent that, if hefailed to report for duty at Kurunegala within 7 days of the date of thereceipt of tho letter, or send an acceptable letter regarding the reasonsfor his refusal, he would be considered to have vacated his post. Therespondent paid no heed to this letter and by A5 of 21st July 1966 theBoard informed him that lie was considered to have vacated his postfrom that date. The respondent then awakened from his lethargy andspurred to activity, immediately made representations to the LabourTribunal on tho 25th of July 19G6. While proceedings were pendingbefore the Tribunal offers were made by the Board to grant therespondent re-employment and such an offer was in fact made on 7thJanuary 1967, On 1st July 1967 lie was offered re-employment fromthat day, but no assurance was given that he would be posted to tho GalleDepot or anywhere close to Galle. On the ISth of July 1967, however,by A9 he was appointed as a new entrant to assume duties at the GalleDepot. According to the rules of the Board when a person vacates hispost he could only be re-employed as a new entrant. It seems to methat, in spite of the respondent failing to obey the orders of his employer,the Board has been extremely generous to him and offered himemployment again at Galle, which was the main object of his protestsagainst his transfer.
ALLKS, J.—Ceylon Transport Board v. Thungadasa
Sl4
The respondent stated that the reason for his sudden t ransfer wasbecause the authorities had chosen to victimise him for his participation inthe arrangements in organising the Bandaranaike Commemorationcelebrations to be held on 25th September 1965. He stated in examina-tion-in-chief that the preliminary discussions held in connection withthese celebrations were towards the end of August 1065 mentioning thespecific date as being the 2Sth or 29th of August. In cross-examinationhowever he maintained that he was not quite certain of the dates on which-the preliminary discussions were held. Subsequently he took up theposition that the reason why he could not go on transfer was because ofcertain personal difficulties. It has been established by documentaryevidence (vide Rl) that the transfer was made on 23rd August 1965 ata time when there was a shortage of mechanics at the Kurunegaia Depotand the/transfer presumably had nothing to do with the respondent’ssubsequent participation in the celebrations. There was therefore aserious misdirection on the facts when the President came to the conclusiontoo readily, "that the transfer had been given to. tho applicant not inthe interests of the Ceylon Transport Board or for reasons relevant toits progress but because of somo extraneous pressure”. The President •has further failed to consider the documentary evidence available inR4 and R5.
In regard to his personal difficulties the respondent stated that he hadthree children attending school who needed his personal attention;that lie was paying a monthty rental of Rs. 30 for the house he wasoccupying ; that he had taken loans at Galle from various institutions andthat the transfer would seriously disrupt his domestic life. While, nodoubt, these are matters that will be taken into account by a sympatheticemployer, no Government Department or Corporation can run efficientlyunless proper discipline is maintained and rules and regulations laiddown for its efficient administration are obeyed by its employees.
The learned President has misdirected himself on the findings offact:—
in accepting as established in evidence that the transfer of therespondent to Kurunegaia was as a result of victimisation forhis participation in the Bandaranaike Celebrations ;
(£>) in failing to consider the terms of employment. between theemployer and employee and that when an employee joineda transferable service, it was fair and reasonable to refuse toproceed on transfer if he had personal difficulties-^
(c) that the respondent was justified in not accepting service in a -lower grade and as a new entrant when the rules of t-he: Boardprovided otherwise;
ALLES, J.—Ceylon Transport Board v. Thungadasa
215
in holding, contrary to R4 and R5, that a vacancy for anemployee in the Engineering Section at Kuruncgala was notnecessary ;
(c) that the offer of re-employment by the Board after the terminationof employment was indicative of the fact that the Board hadacted maliciously and was a confession that the Board hadvictimised the employee ; and
(/) that the transfer was the result of the “ desire of officials tocause inconvenience to the employee and finally to render himunemployed ” when there was not even a suggestion to any ofthe Board officials that such was the case.
Some of the findings are inconsistent with the evidence and contradic-tory and there has been a failure to consider relevant and admissibleevidence. This Court is therefore entitled, as a question of law, toexamine and interfere with such an order. Since the decision in UnitedEngineering Workers Union v. Devanayagam 1 there has been a growingtendency on the part of presidents of Labour Tribunals to embark onlines of inquiry and explore avenues of investigation not covered by theprovisions of the Act and make orders, regardless of the rules of evidence,in the guise of making just and equitable orders. For instance, in thiscase I cannot see on what ground the President could direct that anemployee should continue to be employed in his same place of work orthat he should be presented for a vocational test within three months ofhis order so as to afford him an opportunity to qualify himself for ahigher grade. These are surely matters which should be left to thediscretion of the cmplojer without any directives from a Tribunal whichis expected to act judicially. Recently this Court has had occasion todraw the attention of Presidents of Labour Tribunals to the duty of actingjudicially in evaluating evidence before making just and equitable orders.Vide Ceylon Transport Board v. Abdeen 2 ; Associated Newspapers of CeylonLtd. v. National Employees' Union3; Ceylon Transport Board v. CeylonTransport Workers’ Union* and Ceylon Transport Board v. Gunasinghe5.
I would, for the purposes of this case, adopt the observations of mybrother Wecramantry J. in the latter case that proper findings of factare a necessary basis for the exercise by Labour Tribunals of that widejurisdiction given to them by statute of making such orders as theyconsider to be just and equitable ”. On the proper findings of fact inthis case the termination of the respondent’s services on 22nd July 1S66was justified.
(1967) 60 y. L. B- 289.* (1068) 70 N. L. B. 407.
(1968) 71 y. Ij. B. 70.« (1968) 71 y. L. B. 1SS.
» (1968) 72 N. L. B. 76.
216
ALLES, J.—Ceylon Transport Board v . Thvngadasa
Since the respondent has been offered re-employment in the services nfthe Board as a new entrant at Galle he has no reason to complain. T amhowever compelled to delete the order made in this case directing thepayment of Rs. 1,500 on com passionate grounds because this order hasclearly been made on the footing that the termination of the respondent’sservices was not justified. The appeal is therefore allowed but there willbe no order as to costs.
Appeal allowed.