017-NLR-NLR-V-72-CEYLON-TRANSPORT-BOARD-Appellant-and-W.-A.-D.-GUNASINGHE-Repondent.pdf
76
Ceylon Transport Board v. Gunasinghe
1968Present: Weeramantry, J.CEYLON TRANSPORT BOARD, Appellant, andW. A. D. GUNASINGHE, RespondentS. C. 133167-Labour Tribunal Case 7j2S002
Labour Tribunal—Finding of fact made by it—Bight of a party to appeal therefrom toSupreme Court—Question of law—Duly of Court to act judicially and in accord-ance with the evidence placed before it—Incapacity of the Tribunal to makeinquiries ic.ithout notice to the parties—Misconduct of workman—Domesticinquiry—Admission of guilt—Evidentiary value of it at the inquiry beforeLabour Tribunal—Industrial Disputes Act, ss. 21 (J) (2), 31C (1),31G (2)
—Industrial Disputes Regulations 20, 21, 25.
'Where a Labour Tribunal makes a finding of fact for which there is no• evidence—a finding which is both inconsistent with the evidence andcontradictory of it—the restriction of the right of the Supreme Court toreview questions of law docs not prevent it from examining and interferingwith the order based on such a finding if the Labour Tribunal is under a dutyto net judicially.
The question whether a particular functionary is under a duty to act judiciallyis different, and distinct from the question whether ho holds judicial office.Although the President of a Labour Tribunal does not hold judicial office, thedecision in United Engineering Workers' Union r. Dcvanayagam (GO N.L.R. 2S9)docs not freo Labour Tribunals from the duty to act judicially. “ Inasmuchns the Tribunal is required to give both' parties a full opportunity of statingtheir cases, a notice of the full statement of the opposito party, and a notice oftime and placo of hearing and inasmuch ns the Tribunal is impressed withthe duty to hear evidence and its orders are mado subject ton right of appealto this Court on matters of law, it would appear to bo largely academic to gofurther afield in quest of other indicia of the duty to act judicially. ”
WEERAMANTRY, J.—Ceylon Transport Board v. Gunasinghe
IT
Section 31C (1) of the Industrial Disputes Act does not enable a LabourTribunal to make inquiries outside tho inquiry which it is conducting withnotice to and in the presence of the parties.
Where, at a domestic inquiry held at tho instance of the employer, a workmanis found guilty of misconduct on his own admission, the evidence of theadmission of guilt must be given due consideration by a Labour Tribunalwhich subsequently conducts an inquiry into an application made by thedismissed workman for reinstatement.
Appeal from an order of a Labour Tribunal,
N. Satyendra, for the. employer-appellant.
Nimal Senanayake, with Miss P. Abeyeratne and Sam Silva, for theapplicant-respondent.
Cur. adv. vult.
October 29, 1968. Weeramantry, J.—
The President of the Labour Tribunal has ordered the reinstatementof tho respondent upon the basis of certain findings of fact which theappellant contends are so wholly untenable that no reasonable Tribunalcould arrive at such a finding. On this basis the appellant invites-theinterference of this Court, submitting: that the material before thePresident pointed only in the direction of the respondent’s dismissalhaving been fully justified.
The respondent, a bus conductor employed under the appellant, wason the 17th of November 1969 working on a bus plying between Colomboand Kurunegala. It would appear that when the bus was on its wayfrom Colombo to Kurunegala, officers of tho Flying Squad boarded thebus at Tulhiriya.
They found a passenger who had boarded the bus at Pasyala to whoma ticket imprinted “ Stage 1 ” had been issued. Such a ticket could notproperly have been issued to a passenger who had boarded the bus atthis stage of the journey. Moreover the value of the ticket was Re.. 1*65although according to the passenger he had paid only a sum of -/95 cts.to the conductor. This ticket Avas marked R2 at the hearing before thePresident.
Tho officers of the Flying Squad also found another passenger who-claimed to have boarded the bus at Nittambuwa who said he had paidRe. 1 /05 to the conductor as his fare but had received a ticket with thefare indicated thereon as -{05 cts. This ticket was marked R6.
The Flying Squad also detected that tho collections of the respondentwere in excess of the sums he should have received to the extent ofRs. 8/82. The regulations of the appellant required collections to be^kept distinct from the private money of conductors, but the respondentclaimed that the excess represented his private money.
1 ••J 4768 (7/69)■■■■l
98
WEERAMANTRY, J.—Ceylon Transport Hoard v. Guna&inghe
'; >-0n 4th January 19G6, a Chargo Sheet-, R8, was served on the respondent^requiring him to show cause why ho should not be dismissed. Fourcharges wore sot out therein, tho first.of which charged the respondentwith obtaining a sum of Re. 1/05 from a passenger who travelled fromNittambuwa to Kumncgala and issuing him with a -J05 cts. ticket withfraudulent intention. Tho second charge Mas in respect of havingobtained a sum of -/95 cts. from a passenger bound from Nittambuwa toKurunogala and having issued him uith a ticket for Re. 1/G5 which hadin fact been issued at the outset of the journey. The third chargo urnson tho basis that tho respondent had delibcratoly defrauded tho appellantBoard of a sum of Ro. 1 /- uiiich should have accrued to it and tho fourthwas on the basis of failure by the respondent in the correct performance•of his duty.
Thereafter a domestic inquiry was held by an Inquiring Officer of theappellant Board and at this inquiry, the proceedings of which have beenmarked R9, the respondent was asked whether he was guilty or notguilty. In answer tho respondent stated that he pleaded guilty andthat ho desired in mitigation to explain the circumstances in which hecame to issue tho tickets.
The Inquiring Officer, who himself had had former judicial experience.as the Presidont of a Village Tribunal, warned the respondent that hisplea of guilt might render him liable to dismissal, but the respondent-still maintained his plea of guilt. Ho proceeded to state that, acceptingthe warning and realising tho gravity of the plea of guilt, he was never-theless roiterating his plea of guilt in the hope that any punishmentmeted out to him would be of such a nature as to give him a chance ofmaking good in the future.
His explanation in mitigation was that at Pettah about five passengersboarded the bus and asked for five Re. 1JG5 tickets and that whilstreeling out these five tickets an additional ticket of tho same value Avas;also reoled out. As ho could not issue any other ticket without tearingthis off, he removed this from tho machine and kept it in his possession(until at Pasyala a passenger who boarded the bus asked for a ticket toKurunogala to the value of -/95 cts. He therefore issued the extradickot Avhich lie had in his hand to this passenger and received'-/95 cts.■from him, honestly thinking that he Mas not committing any offence.
In regard to the other ticket his position was that he could not rememberwhether he had collected Re. 1/05 from the passenger M'ho had boardedthe bus at Nittambuwa.
In liis statement the respondent u-ent on to say that ho had admittedhis faults to the officers of the Flying Squad. •
. The excess sum of Rs. 8/S2 that was found with his collections ho stillmaintained was his private money and not monoys collected from any- passengers.
YVEERAMANTRY, J.—Ceylon Transport Board v. Gunasinghe
79
As I have observed earlier, the entirety of this statement a3 well asof the other proceedings before the Inquiring Officor was put in evidencebefore the President who therefore had beforo him material showingthat both before the officers of the Ftying Squad and before the InquiringOfficer the respondent had admitted his guilt.
At the hearing before the President the appellant called an officerof tho Flying Squad who spoke to the matters to which I have alreadyreferred, and also the Inquiring Officer, who produced the record of theproceedings. The Inquiring Officer stated that having found therespondent guilty of the charges, he had recommended suspension for aperiod of six months.
The respondent did not himself give any evidence nor was any witnesscalled on his behalf.
The President in the course of his order has observed that there was noevidence, before him to show at what point the passenger who had paid-/95 cts. had boarded the bus. He observed that" the'Flying Squad -officer had stated that ho had got this information from the passengerbut that the passenger himself had not been called to give evidence. Inthese circumstances, the President took the view that the charge relatingto the issue of that ticket had not been proved.
In regard to the other charge, that of collecting Re. 1/05 on a ticket for-/05 cts., the Flying Squad officer had been unable to read the numberof the ticket or show that it had been issued from the ticket machinewhich had been used by the conductor. On this basis, the Presidentheld that there was no evidence to show that this ticket had been issuedby this conductor.
In regard to the excess cash found to be with the conductor thePresident took the view although there was evidence that conductorswere expected to keep their private money separate from their collections,this evidence by itseTdid not show that the conductor had defrauded theappellant of any amount .
In this view of the matter, and observing also that there had been noadmission of the charges before him, the President held that the appellanthad failed in the burden of justifying the dismissal, and he orderedreinstatement of the respondent.
I do not think the approach of the President to the material placedbefore him was correct.
At an inquiry such as that which the President was conducting, theadmission of the respondent was a circumstance on which the appellantwas entitled to rely in the absence of any evidence by tho respondentto the contrary. It was not open to the President to disregard thatadmission, for an admission by a party, no less than evidence offered
80WEERAMANTEY, J.—Ceylon Transport Board v. Gunaainghe
against him by his adversary, is evidence before the Tribunal, which theTribunal is under a duty to consider. It was wrong, therefore, for the.President to take the view' that there was no evidence before him insupport of the charges, nor was it correct for him to rest his orderon the technicality that there had been no admission of the charges beforehim. Such an attitude which may perhaps have been appropriate in acriminal trial, was, as Tennekoon J. has observed in Ceylon TransportBoard v. Ceylon Transport Workers' Union >, wholly inappropriate toan inquiry before a Labour Tribunal. Indeed the applicability of suchan approach even to » criminal trial is strictly limited to confessionsobtained in certain defined -circumstances outside which admissions areevidence which a criminal court is under a duty to consider. In thepresent case all such circumstances as would be required to justifyexclusion of such evidence even at a criminal trial were co'mpletelyabsent. In fact-, the admission was made before an officer with judicialexperience who had given due warning to the respondent of theconsequences of the admission which he proposed to make—acircumstance the President should not have failed to consider beforedeciding to ignore the admission.
The conclusion of tho President is thus clearly unsustainable, for thematerial placed before him could lead to no other conclusion than thatthe respondent was guilty of the charges against him. There was atotal absence before the President of any evidentiary material on which acontrary finding could be based.
The question then arises whether, inasmuch as the decision of thePresident which is now’ assailed turns on his findings on questions of fact,the procedure of an appeal to this Court is available to the appellant.
Where a statute makes an appeal available only in respect of questionsof law, tho Appellate Court is not without jurisdiction to interfere wherethe conclusion reached on the evidence is so clearly erroneous that noperson properly instructed in the law and acting judicially could havereached that particular determination.2 It is true that Courts will bemore ready to find errors of law in erroneous inferences from facts thanin erroneous findings of primary fact, but it has been repeatedly heldthat a Tribunal which has made a finding of primary fact that is whollyunsupported by evidence has erred in point of law.3
The statement of this principle has perhaps achieved its clearestexpression at the hands of Lord Normand who in Inland Itevenuev. Fraser 4observed : " In cases where it is competent for a tribunal to make findingsof fact which are excluded from review', tho Appeal Court has alwaysjurisdiction to intervene if it appears . . .that the tribunal has made afinding for which there is 710 evidence or which is inconsistent icith theevidence and contradictory of it. ”
1 (196S) 71 N. L. R. 158 : 75 C. L. W. 33.
Edwards, Inspector of Taxes v. Bairslow and another (195-5) 3 All E. R. IS.
de Smith, Judicial Review of Administrative Action, pp. 86-7.
1(1912), 21 Tax Cases, 498.
WEEJRA.MAXTRY, J.—Ceylon Transport Board v. Gunasinghe
81
In the present case the Tribunal would, for the reasons I have stated,appear to have made a finding for which there is no evidence—a findingwhich is both inconsistent with the evidence and contradictory of it.The restriction of this Court’s right to review questions of law wouldnot appear therefore to prevent it from examining and interfering with theorder based on such a finding if the Tribunal was under a duty to actjudicially.
The question whether Labour Tribunals are under a duty to act.judicially is then the only matter remaining.
It appears to mo that tho decision in the case of United EngineeringWorkers' Union v. Devanayagam1 must not be thought to mean thatLabour Tribunals do not and are not required to act judicially. It mustbe emphasised that the question whether a particular functionary isunder a duty to act judicially is different and distinct from the questionwhether he holds judicial office. Some dicta in the majority judgment in“ United~EiTgineefing Workers' Union v. EFvWidyagam1 2~wonld appear tobo indicative of tho view that the President of a Labour Tribunal ovenwhen hearing an application under section 31B (1) is not acting judicially,but what the Privy Council in fact decidod therein was that Presidents ofLabour Tribunals do not hold judicial office. In my view this latter isthe true ratio decidendi of this case and any attempt to read more.intothis decision than this underlying principle may well have repercussionswhich their Lordships did not intend.
Though we are thus bound to the view that such functionaries arenot judicial officers, we are, with the greatest respect, not bound toconsider such officers as being freed of the duty to act judicially—forit is manifest that the duty to act judicially is not exclusively confined tothose who hold judicial office. This is a view which this Court has•expressed on rnoro than one occasion.3 “Judicial power and pow'er inthe exercise of which there is a duty to act judicially are two differentthings.”4
In deciding whether Labour Tribunals are required to act judiciallywe are fortunato in having for our guidance a particular set ofrequirements in accordance with which such Tribunals function. Anexamination of that largo body of decided cases dealing wdth tho testsfor determining whether a body is under a duty to act judicially hencobecomes largely academic and it does not become necessary to examinoin detail the nice distinctions drawn therein.
Section 31 C (1) states that it shall be the duty of the Tribunal to makeall such inquiries into tho application and to hear all such evidence asthe Tribunal may consider necessary and thereafter to make such order as. jnay appear to the Tribunal to be just and equitable.
1 (1967) 69 N. L. R. 289.1 (1967) 69 N. L. R. 289.
* Tennekoon v. The Principal Collector oj Customs, (1959) 61 N. L. R. 232, Omer
v. Casperez^ (1963) 65 N. 1>. R. 494.
4 Rola Company (Aust.) Pty. Ltd. v. The Commonwealth (1944), 69 CommonwealthL. R. at 203.
82WEERAMANTRY, J.—Ceylon Transport Board t>. Gunasinghe
The Tribunal has in this case considered it necessary to hear certainevidence and has in fact heard it. . Its duty doos not end when theevidence so considered necessary is in fact heard. The duty of hearingevidenco must necessarily carry with it the duty of considering suchevidence for the duty to hear is meaningless without the duty to consider.Tho present caso reveals quite cloarly a total omission by tho Tribunal toconsider evidenco which has boon placed before it and it cannot bo saidthat the Tribunal has been acting in accordance with the duties laiddown for it by statute.
The rules made for regulating the procedure to be observed beforetheso Tribunals aro also strongly indicative of the judicial nature oftheir functions. For oxamplo parties arc required to submit to theTribunal statements sotting out in full their respective cases in regardto the matters in dispute, one copy of each statomont being required to bosent to tho other party (Rule 20). So also Ride 21 enables the Tribunalby written notice to call upon the parties to transmit statements settingout in full their respective cases in regard to tho matters in dispute.Rule 25 requires every person considered likely to bo affected by adispute to be informed by written notico of the date, time and place ofhearing.
The provision of a right to appeal to this Court is also an importantfactor which appears to mark off such Tribunals from those which arepurely administrative. Were they not under a dut3' to act judicially,appeals to this Court >vould bo meaningless and unworkable except incases of clear violation of statute, and few such can be visualised whena Tribunal is empowered to make an order which is ' just and equitable ’.This important factor alone is sufficient to distinguish the two cases ofIiobinson v. Minister of Town <£• Country Planning1 and Liversidge v.Anderson2 which were relied on by the appellant. The Minister inmaking the decision in both theso casos was not making his docisionsubject to a right of appeal to any Court . Assuming he was acting bonafide the Minister was in those cases the sole judge of the matters whichhe decided.
Inasmuch, thou, as the Tribunal is required to give both parties a fullopportunity of stating their cases, a notico of tho full statement of thoopposite party', and a notice of time and place of hearing and inasmuchas tho Tribunal is impressed with the duty to hear evidenco and itsorders aro mado subject to a right of appeal to this Court on matters oflaw, it would appear to be largoly academic to go further afiold in questof other indicia of the dutj' to act judicially.
It is said on behalf of tho respondent that tho terms of section 31 C (1)imposo on tho Tribunal the duty of making all such inquiries into theapplication and hearing all such ovicicnco as the Tribunal may considernecessary, and that the Tribunal is therefore not limited to the evidence
1 {1917) J All E. R. 851.* (1941) 3 All E. R. 338.
W1SERAMANTliY, J.—Ceylon Tans port Hoard v. Gunasfngfie’»3
which may bo led boforo it. I do not agree that this provision enablestho Tribunal to make inquiries outside tho inquiry which it is conductingwith notice to and in tho presence of parties.
– ’ *
Soction 31 C (2) lays down tho procedure for an “ inquiry ” before aTribunal and in so laying down this procedure makes no distinctionbotween “inquiries into the application ” and “ hoaring all suchcvidonco ”. The procedure so laid down would thus appear to governboth aspocts referred to in section 31 C (1), namely “ inquiries ” and" evidence ”, and both those aspects alike would appear to bo subject tosuch requirements as that tho inquiry should bo conducted with noticeto and in tho prcsenco of parties. There would thus appoar to bo hoplace in the schcmo of our legislation for inquiries conducted withoutnotico to and in tho absence of tho parlies. Similar provisions in regardto Industrial Courts appear in section 24 (1) and (2) whore again althoughthe Court may make inquiries and hoar evidence, no distinction is drawn,so far as concerns procedure, between inquiries and evidence. Noanalogy may therefore be draw'll upon tho basis of.secfion 31 C (I)between the case of Labour Tribunals and cases such as Bobitison v.Minister of Town <0 Country Planning1 and Liversidge v. Andnsonzwhere the Minister was empowered to make his own inquiries and wasnot even under a duty to reveal tho nature and sources of tho informationon which ho acted.
Having regard to all thoso matters it becomes clear that tho decision, inUnited Engineering Workers' Union v. Devanayagam3 does not free LabourTribunals from the duty to act judicially. This case should not therefor©bo viewed, as it somotimes tends to be viewed, as granting to LabourTribunals a free charter to act in disregard of the evidence placed beforethem. They are, in arriving at their findings of fact, as closely bound tothe evidence adduced before them and as completely dependent thereonas any Court of law. Findings of fact which do not harmonise with theevidence underlying them lack all claims to validity, whatever bo thoTribunal which makes them.
Proper findings of fact are a necessary basis for the exercise by LabourTribunals of that wido jurisdiction given to them by statute of makingsuch orders as they consider to be just and oquitablo. Where there is nosuch proper finding of fact the order that ensuos would not bo one which isjust and equitable upon tho evidence placed before tho Tribunal, forjustice and equity cannot be administered in a particular case apartfrom its own particular facts. I am strengthened in tho conclusion Ihave formed by a perusal of the judgment already referred to, of mybrother Tennekoon,4 who has observed that it is only after the ascertain-ment*of the facts upon a judicial approach to tho evidence that a LabourTribunal can pass on to the next stage of making an order that is fair andequitable having regard to the facts so found.
1 (1947) 1 All E. R. 851.* (1941) 3 All E. R. 338.
* (1967) 69 N. L. R. 289.
* Ceylon Transport Board v. Ceylon Transport Workers' Union(1968) 71 N. L. R. 158; 75 G. L. W. 33.
84
Ceylon University Clerical and Technical Association, Peradeniya v.
University oj Ceylon, Peradeniya
A point has been made on behalf of the appollant that tho proceedingsbefore tho domestic Tribunal have not been properly marked in evidenceand that tho inquiring officer did not identify these documents or thesignature of tho applicant thereon. This submission seems to me to bewithout merit for it assumes a strictness in the proof of documents which iswholly foreign to the functions and objects of Labour Tribunals. Inthe spirit in which the inquiries of theso Tribunals should bo conductedthere is little scope for reliance on such legal technicalities.
I take tho dew therefore that there is in this case a right of appealfrom the order of tho Labour Tribunal to this Court, and in tho exerciseof this Court’s powers in appeal I set aside tho order of the President anddirect that the application be inquired into afresh by another Tribunal.The appellant will be entitled to tho costs of this appeal.
Order set aside.