032-SLLR-SLLR-1993-2-CEYLON-WORKERS-CONGRESS-on-behalf-of-M.-G.-Kalisinghe-v.-THE-SRI-LANKA-STA.pdf
CA Ceylon Workers Congress v. The Sri Lanka State Plantation and Another
(H. W. Senanayake, J.)377
CEYLON WORKERS CONGRESS(on behalf of M. G. Kalisinghe)v.
THE SRI LANKA STATE PLANTATION AND ANOTHER
COURT OF APPEALH. W. SENANAYAKE, J.
C. A. NO. 49/87.
LT NO. R/22571
AUGUST 18 AND 08 SEPTEMBER, 1993.
Industrial Dispute – Suspicion of complicity in unlawful activities during communaldisturbances – Certificate that no criminal cases have been filed – Termination.
No action can be taken against a workers if there is no criminal offence committedby the worker within the estate or even if he committed an offence outside hisemployment unless that offence is of such magnitude that would bring disrespectto the management. Where there is no offence except that an over zealousPolice had taken the applicant into custody because his son who was a priesthad come back from Colombo with some goods, the sins of the son cannot fallon the father. The respondents by refusing work constructively terminated hisservices. Failing to produce a certificate from the Police that no cases were filedagainst him is not a good ground to refuse. There is no obligation on the partof the worker to produce such a certificate.
APPEAL from order of Labour Tribunal.
M. K. Jeyakrishnan for appellant.
S. M. Fernando, P.C. with Hyacinth Fernando for respondent.
Cur. adv. vult.
October 29, 1993.
W. SENANAYAKE J.
This is an appeal from the order of the Learned President dated 15thJanuary, 1987 where the Tribunal dismissed the application.
The facts briefly are as follows. The Applicant Union made theapplication on behalf of the worker M. G. Kalisinghe alleging that theworkman's services had been terminated with effect from 1st August,1987 without any valid reasons by the management of HunuwellaState Plantation. The Union prayed that the Applicant be re-instatedwith back wages.
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Sri Lanka Law Reports
[1993} 2 Sri L.R.
The Respondents in their answer admitted employment and averredthat the workman was remanded by the Police on suspicion that hehad committed illegal and unlawful acts during the communal dis-turbances in August 1983. They admitted that the workman hadreported for work but he was requested to produce a letter from thePolice certifying that no case had been filed against him in respectof the said unlawful acts and as the workman failed to produce aletter to that effect, the Respondents deemed the workman to haveabondoned his employment. They denied having terminated his servicesand prayed that the application be dismissed.
The Learned Counsel for the Appellant submitted that the LearnedPresident had been carried away by the document R1 dated 6thOctober, 1981 where the contents reads As follows. " By thisopportunity we would like to advice all Superintendents that if anymember of staff including watchers and supervisors were taken intocustody on suspicion of looting or in any other illegal activity theyshould not be offered work on release until the conclusion of theinquiry or any Court case pending against them. "
" Please ensure that no officer is reinstated with out the approvalof the Resident Director or the Chairman of the Regional Board, evenif they are exonerated of the charges preferred against them. " Itis common ground that the Applicant was working as a watcher inthis estate for 18 years. It is also common ground that he was takeninto custody during the communal riots in July, 1983 by the Policeand after being on remand for three weeks he had been releasedthereafter as the worker had not committed any theft or looting ofany property or any goods from any persons living in the estate orfrom any residence of the estate. It was an accepted fact that theworker had a son who was a Buddhist Priest who was in Colomboand had come during the communal period to the worker's houseand he too had been taken into custody by the police and had beenon remand. During this particular period one must not forget that thePolice were acting under stress and under the powers of EmergencyRegulations. There were a number of persons taken into custodywithout any evidence except on mere suspicion and after they beingkept in custody under Emergency Regulations some were even notproduced before the Magistrates but released subsequently by thePolice when they had insufficient material or evidence to file actionagainst persons who were taken into custody. The Learned Counselfor the Appellant submitted that the workman had not committed any
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CA Ceylon Workers Congress v. The Sri Lanka State Plantation and Another
(H. W. Senanayake, J.)
offence and there were no charges levelled against him. There wasno plaint filed against him and there was a duty cast on theSuperintendent to grant him work when he came after his releasefrom the remand prison. The Circular marked R1 defenitely does notrefer to the communal disturbances of 1983. It is a Circular dated6th October, 1981. As paragraph 2 of the circular states that evenif they are released the offender should not be offered work untilthe conclusion of the inquiry or any court case pending against them.There was no evidence to establish that there was any Court caseagainst the worker. There was evidence that he was released fromremand. Paragraph 3 states " even if they are exonerated againstthe charges preferred against them they should not be reinstatedwithout the approval of the Resident Director or the Chairman of theRegional Board. " This Circular stated that the Superintendent hadno power to reinstate the worker concerned. There was a duty caston him to inform the Resident Director or the Chairman of the RegionalBoard that the worker had been released by the Police after beingkept on remand and he had come back seeking work. It wasincumbent for him to inform his superiors. But there was no evidencein this case to establish this position. The Superintendent admittedthat the worker had come and met him on a number of occasionsseeking employment but he had insisted that he should get acertificate from the Police that there was no case pending againstthe worker. One must not forget that the Police acted under stressthat the Police Stations were baricaded to such an extent that noperson could enter and make a complaint during the relevant period.The Learned Counsel for the Appellant submitted that the Tribunalhad erred in acting on the Circular R1. I am of the view that theRespondents cannot take action against a worker if there is nocriminal offence committed by the worker within the estate or evenif he committed an offence outside his employment unless thatoffence is of such a magnitude that would bring disrespect to themanagement. In the instant case there was no offence except thata over zealous Police had taken this Applicant to custody becausehis son who was a priest had come back from Colombo with somegoods. The sins of the son cannot fall on the father. The Respondentsby refusing to give him work has constructively terminated theservices of the workman.
The Learned President in my view had erred in law when shearrived at the determination that the worker had failed to producea certificate from the Police. There was no obligation that the workershould produce such certificate. One must not forget there were a
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number of high officials taken into custody kept on remand who laterbecame Members of Parliament and even held portfolios as CabinetMinisters. A person kept in remand does not mean that he hascommitted an offence until he is found guilty by a court of law andtill he is found guilty in the proper court of law, he is presumedto be innocent. I set aside the order of the Tribunal as I am of theview that the Tribunal had erred in law. There is evidence that theworker had been working for nearly 14 years and he was drawinga monthly salary of Rs. 500/- to Rs. 600/- There facts have notbeen controverted. When the worker gave evidence in 1984 he was50 years old today he would be 59 years old and I do not see anypractical effect in ordering reinstatement. I am of the view that therehad been constructive termination and its is just and equitable togrant him compensation. Considering the age and considering thenumber of years he had served in the estate, considering the factthat he being without a job from August, 1983 I direct that theRespondents pay 6 years salary as compensation computed on thebasis of Rs. 600/- x 12 x 6 Rs. 43,200/-. I direct the Respondentsto deposit the said sum on or before 20th December, 1993 with theAssistant Commissioner of Labour, Ratnapura. The worker would befree to withdraw this amount thereafter. I allow the appeal with costsfixed at Rs. 1500/-.
Appeal Allowed.