Sri Lanka Law Reports
[1999) 3 Sri LR.
CEYLON PETROLEUM CORPORATION
G. P. S. DE SILVA. CJ..
S.C. NO. 6/93.
LT NO. 8/2928/89.
JANUARY 28. 1993.
MAY 14, 1993.
Industrial Disputes Act – Section 36 (4) – Termination – Assaulting a fellowworkman – Finding on inadmissible hearsay – Evidence Ordinance.
A Labour Tribunal is not bound by the provisions of the EvidenceOrdinance.
However, s. 36 (4) of the Industrial Disputes Act does not permit a LabourTribunal to act in total disregard of one of the fundamental principlesunderlying the provisions of the Evidence Ordinance.
Inadmissible hearsay is excluded on the plainest considerations of fairnessand justice, for it is material upon which no reliance could be placed. ALabour Tribunal is clearly under a duty to judicially evaluate the evidentiarymaterial placed before it.
APPEAL from the High Court of Colombo.
Case referred to:
Ceylon Transport Board v. Ceylon Transport Workers' Union – 71 NLR 158at 163.
R. B. Seneviratne for applicant-appellant.
Bimal Rajapakse with Yasalal Kodithuwakku for respondent-respondent.
Cur. adv. vult.
Colombage v. Ceylon Petroleum Corporation (De Silva, CJ.) 151
June 25, 1993.
DE SILVA, CJ.
The services of one Colombage, a labourer employed at the CeylonPetroleum Corporation (respondent) were terminated on the groundthat he had assaulted a fellow workman named Gunaratne while onduty and caused serious injury. Colombage made an application tothe Labour Tribunal for reinstatement and backwages. The applicationwas dismissed; the Labour Tribunal held that the charge was proved.He appealed unsuccessfully to the High Court. He has now preferredan appeal to this Court.
The injured Gunaratne called to testify before the Labour Tribunal.There was no evidence whatever, direct or circumstantial, to showthat Colombage assaulted Gunaratne. However, the Labour Tribunaldismissed the application solely on the basis of a report marked R1made by an Assistant Security Officer of the respondent, namedBasnayake. R1 contained a summary of statements alleged to havebeen made by Colombage, Gunaratne and two other persons toBasnayake. Though Gunaratne did not give evidence before theLabour Tribunal, in his statement in R1 he claimed that Colombageassaulted him. Moreover, R1 contained a statement of one Abeywardenawho claimed that he saw Colombage assaulting Gunaratne.Abeywardena too was not called as a witness before the LabourTribunal.
Thus, on a scrutiny of the report R1, it is clear that the LabourTribunal has reached the finding that the charge against Colombagehas been established purely on inadmissible hearsay. No doubt aLabour Tribunal is not bound by the provisions of the EvidenceOrdinance (s. 36 (4) of the Industrial Disputes Act). Tennekoon, J.(as he then was) in Ceylon Transport Board v. Ceylon TransportWorkers' Uniorix) at 163, referred to section 36 (4) and stated: “Thisis only intended to permit a Labour Tribunal in its discretion – whichof course must be exercised reasonably – to admit as evidence allmatters which he considers material even though a court of law wouldnot regard it as judicial evidence". In my view this section does notpermit a Labour Tribunal to act in total disregard of one of thefundamental principles underlying the provisions of the EvidenceOrdinance. A Labour Tribunal is clearly under a duty to judicially
Sri Lanka Law Reports
 3 Sri L ft
evalute the evidentiary material placed before it. This the LabourTribunal has failed to do, for it has acted solely on inadmissiblehearsay contained in R1. Inadmissible hearsay is excluded on theplainest considerations of fairness and justice, for it is material uponwhich no reliance could be placed. The evidentiary value of R1 isnil.
The resulting position is that the Labour Tribunal has reached afinding against the workman for which there is no evidence. This,clearly, is an error of law; the High Court erred in refusing to disturbthe finding of the Labour Tribunal on the ground that there was noerror of law.
The order of the Labour Tribunal and the judgment of the HighCourt are accordingly set aside and the appeal is allowed with costsfixed at Rs. 500. I direct that the workman be reinstated withbackwages.
Counsel for the respondent has stated in his written submissionsthat the terminal salary was Rs. 952/50 per month according to thepersonal file of the workman. The date of interdiction was 18.03.1987.The backwages payable woould be for a period of 76 months, andwould amount to Rs. 952/50 x 7 Rs. 72,390. The workman may bereinstated on or before 18th July, 1993.
As an alternative to reinstatement, it is open to the respondentto pay in addition to the backwages amounting to the aforesaid sumof Rs. 72,390, a sum of Rs. 952/50 x 12 = Rs. 11,430 as compen-sation. The quantum of compensation is limited to a period of oneyear, owing to the special facts and circumstances of this case; theproceedings reveal that Gunaratne had sustained a serious injury whileat work and his failure to testify before the Labour Tribunal was dueto threats directed at him. The respondent is directed to deposit themoney payable to the workman with the Assistant Commissioner ofLabour, Colombo South Labour Secretariat, on or before 31.08.1993.
KULATUNGA, J. – I agree.
RAMANATHAN, J. – I agree.