Wijesundera v. Dasa (G P S. De Silva. J)
CEYLON WORKERS’ CONGRESS
JANATHA ESTATES DEVELOPMENT BOARD AND ANOTHER
WANASUNDERA. J.. ATUKORALE. J. AND H. A. G. DE SILVA. J.
S.C. APPEAL No. 64/85.
C A. APPEAL No. 52/80.
L.T. BADULLA CASE No. B/11328.
FEBRUARY 6. 1987.
Industrial Disputes Act-Suspension of sen/ices-Constructive termination-Domesticinquiry.
Where a workman continued in forcible occupation of a line room in defiance of theorders of the Superintendent to get back to the line room earlier occupied by him andthe Superintendent thereupon suspended him from work until he vacated the line roombeing forcibly occupied by him-
The suspension from work did not amount to constructive termination. In the face of theclear manifestation of the workmen's intention not to vacate the line room there wasno purpose in holding a domestic inquiry. The application under s.3l (B)(1) of theIndustrial Disputes Act is not sustainable.
Sri Lanka Law Reports
 2 Sri L. R.
Case referred to:
Ceylon Estate Staffs' Union v. The Superintendent, Meddecombra Estate.Watagoda-73 NLR 297.
APPEAL from the judgment of the Court of Appeal.
K. N. Choksy. P C. with S. Mahenthiran and Miss M. Sivalingam for the appellant.
Mark Fernando. P.C. with S. L. Gunasekera and Miss S. Wijayagunasekera for therespondents.
Cur. adv. vult.
April 3, 1987.
The appellant, on behalf of its member (Sangapillai) made applicationto the Labour Tribunal, Badulla, alleging that his services as a labourerwere terminated by the management of Unugolla Estate (therespondents) with effect from 21.9.1978 without any valid reasons.Averring that this termination was wrongful, the appellant asked forreinstatement of the workman with back wages. The managementdenied termination and pleaded that the workman's services weresuspended from 21.9.1978 as he was in forcible occupation of theline room presently occupied by him and that he would be offeredwork once he vacated that room and got back to his former line room.The President, Labour Tribunal, after inquiry, held that the conduct ofthe management in suspending the services of the workman for anunlimited period of time amounted to a constructive termination of hisservices and on that basis ordered his reinstatement with back wages.On an appeal by the management the Court of Appeal took the viewthat there was no constructive termination of services for the reasonthat the management did not have sufficient time to hold a domesticinquiry into the conduct of the workman before which the workmanfiled this application in the Labour Tribunal and as such it could not, inthe circumstances of this case, be said that the suspension wastantamount to a dismissal of the services of the workman. The Court• of Appeal therefore held that the application made on behalf of theworkman could not be sustained under s.31 (B)(1) of the IndustrialDisputes Act and set aside the order of the President, Labour Tribunal.The present appeal is from this judgment of the Court of Appeal.
C.W.C. v. JEDB (Atukorale. J.)
Mr. Choksy, P.C. for the appellant submitted that the Court ofAppeal was in error when it held that the management did not have areasonable opportunity for holding a domestic inquiry prior to theinstitution of the application for relief. He pointed out that this was notthe case of the management as set out in its answer. The answerstated specifically that the workman will be given work only when hevacates the line room of which he was, according to the management,in forcible occupation. He further submitted that up to this date themanagement had taken no steps to hold a disciplinary inquiry againstthe workman for his alleged misconduct. During this entire period theworkman had. it was urged, been given no work or pay. Nor did themanagement intend doing so in the future. These circumstances, itwas contended, unmistakably pointed to the fact that the 'suspension'was tantamount to a constructive termination and that the Court ofAppeal had misdirected itself in concluding that the management hadbeen deprived of a reasonable opportunity of holding a domesticinquiry. Mr. Mark Fernando, P.C. for the respondents (themanagement), in turn, drew our attention to the fact that theapplication filed by the appellant refers to an actual and not aconstructive termination of the workman's services on 21.9.1987.He stressed the fact that the workman himself during the course of hisevidence admitted that Hettiarachi, the Assistant Superintendent ofthe estate, asked him on 21.9.1978 to vacate the present line roomwhich he was occupying and to go to his former line room and that ifhe failed to do so he would not be given any work. This was a lawfulorder which the workman failed to comply with. There was thus nonecessity to have a domestic inquiry into this refusal of the workmanto carry out the lawful order given by Hettiarachi. Under thecircumstances the suspension of the workman's services, it wasurged, was justified and cannot be construed to be a constructivetermination of services since the workman was informed that he wouldbe given work once he vacated the present line room and returned tohis former one. Learned President's Counsel relied on the decision inthe Ceylon Estates Staffs' Union v. The Superintendent.Meddecombra Estate. Watagoda (1) in support of his submissions.
The sole question that arises for our consideration is whether, in thecircumstances of this case, the conduct of the management inrefusing to give the workman any work on the estate with effect from21.9.1978 until such time as he left the line room which he wasoccupying and went back to his old room amounted to a mere
Sri Lanka Law Reports
 2 Sri L R.
suspension of his services as maintained by the management orwhether it constituted a constructive termination of his services asmaintained by the appellant. Upon a close scrutiny of the facts andcircumstances of this case I am satisfied that there has been only asuspension and not a constructive termination of the workman'sservices. At the inquiry before the President, Labour Tribunal, toomuch importance seems to have been placed on the question as towhether the workman's entry into occupation of the present line roomwas or was not with the leave and licence of Hettiarachi, the AssistantSuperintendent. The President has found as a fact that such entry waswith the permission of the latter and that therefore the workman'soccupation of the room was not forcible. He has, however, failed toappreciate the significance of the admitted evidence of both theworkman as well as Hettiarachi that the day after he came intooccupation, Hettiarachi asked the workman to vacate the room andget back to his former room-a request which the workman failed toobey. Hence the workman's continued occupation of the room on andafter 21.9.1978 was in defiance of the order of Hettiarachi eventhough his entry may have been lawful. The legality or propriety of thisorder was not put in issue either at the inquiry before the President,Labour Tribunal or the Court of Appeal. The workman himself statedthat he entered with the permission of Hettiarachi. He appears to haveacknowledged that the allocation of line rooms in the estate is one thatappertains to the internal arrangement of the estate and is a matterwithin the control and discretion of its management. Unless the termsof employment provide otherwise, there can be no legal foundation fora workman's claim to remain in occupation of a particular line room indefiance of an order of the management made in good faith. It isworthy of note that in the instant case both line rooms were located inthe same division of the estate. The right of the management totransfer a workman from one place of residence to another in thesame estate and the corresponding liability of the workman to be sotransferred is incidental to and an implied condition of the workman'sservice. In my view it is absolutely essential that the managementshould be possessed of such a right and should have control over theallocation of line rooms for the purposes of efficient and properadministration of the estate with a view to achieving maximumproductivity. In Ceylon Estates Staffs' Union v. The Superintendent,Meddecombra Estate, Watagoda (supra) this court recognised thelegal right of an employer to transfer his staff from one place of workto another within his service subject to certain limitations which do not
C.W.C. v. JEOB (Atukorale, J.)
arise for consideration in the instant case. If so it must necessarilyfollow that an employer has the right to transfer his workman from oneplace of residence to another within his service. No doubt it would beopen to such a workman to make representations to the appropriateauthorities against the transfer but he cannot, in my view, bepermitted to set the employer at defiance by blatantly refusing tocomply with the order as in the instant case. The failure or refusal ofthe workman to comply with such an order amounts to a disobedienceof the lawful order of his employer and constitutes by itself misconducton the part of the workman. There is no necessity in suchcircumstances for the employer to go through the formal process ofholding a domestic inquiry for ascertaining whether there has been onthe part of the workman a refusal to carry out the employer's order oftransfer. The conduct of the workman in continuing to remain inoccupation of the line room in question from 21.9.1978 clearlymanifested his intention not to obey the transfer order. His refusalwas so obvious that there was no purpose in holding a domesticinquiry. The workman's position appears to be that since he came intooccupation of the present line room with the permission of Hettiarachi,the Assistant Superintendent, he is entitled to remain there in spite ofHettiarachi's orders to the contrary. I do not think such a status ofirremovability attaches to line rooms given out for the residence ofworkmen at the discretion of the management. Viewed in this light I donot think that the order of suspension made by Hettiarachi can beconstrued to amount to a constructive termination of the workman'sservices. It is not in the nature of an interdiction order pending adomestic inquiry into the alleged misconduct of an employee. In sucha case it may reasonably be inferred, by the failure of the employer tohold the inquiry, that the order of interdiction is tantamount to aconstructive termination. The facts and circumstances of the instantcase are different. For the reasons set out by me there was nonecessity to hold a domestic inquiry in this case. I would accordinglymake order dismissing the appeal with costs fixed at Rs. 525.
WANASUNDERA, J. – I agree.
H. A. G. DE SILVA, J. – I agree.