036-SLLR-SLLR-1996-V-2-HATTON-NATIONAL-BANK-v.-PERERA.pdf
HATTON NATIONAL BANKV.
PERERA
SUPREME COURT.
P. S. DE SILVA, C.J.,
RAMANATHAN, J. ANDWIJETUNGA, J.
S. C. APPEAL NO. 70/95
C. L. T. 914/93 & 917/93L.T. 1 ADD 1/8348/90
2ND AND 3RD SEPTEMBER, 1996.
Industrial Disputes Act – section 33 – Termination of Services – Compensationas alternative to reinstatement – Quantum of compensation • Discretion.
The applicant was employed as an executive under the Appellant – Bankfrom 1974 to 1987. His services were terminated on a charge of falselyabsenting himself from work from 20th to 27th July 1987 on the ground ofalleged illness, forwarding a telegram and two medical certificates dated22.7.87 and 27.7.87. The telegram was received on the evening of the 20th.The Labour Tribunal ordered that the applicant be reinstated with one year’ssalary for the period of non-employment. The tribunal also found that the
applicant had in failing to notify his illness by telephone in the morning ofthe 20th had acted in an irresponsible manner causing inconvenience tothe management and others. The evidence also showed that cordial relationsbetween the applicant and the Bank had ceased to exist for quite sometime.The High Court ordered reinstatement with full back wages for 67 months.
Held:
In order to set aside the determination of facts by the tribunal that thetermination was unjustified the appellant must satisfy that there was nolegal evidence to support the conclusions of fact or that the finding is irrationalor perverse. This is a heavy burden.
Where termination is unjustified the workman cannot as of right demandreinstatement. The tribunal is required to make a just and equitable order.The order must therefore be just and equitable to both parties. Consequently,the tribunal has the discretion to order payment of compensation as analternative to reinstatement.
The amount of compensation should not mechanically be calculated onthe basis of his salary till he reached superannuation.
On the facts and circumstances of the case an order to pay the applicant5 years salary as compensation in lieu of reinstatement is just and equitable.
Cases referred to:
The Caledonian (Ceylon) Tea and Rubber Estates Ltd., v. Hillman -791NLR 421
United Industrial Local Government and General Workers’ Union v.Independent Newspapers Ltd., 75 NLR 529, 531.
Ceylon Transport Board v. Wijeratne 77 NLR 481.
APPEAL from the Judgment of the High Court.
S.Sivarasa, P.C., with Shammil Perera and Sampath Welgampola forEmployer-Appellant.
S. L. Gunasekera for Applicant-Respondent.
Cur. adv. vult.
11th October, 1996.
G. P. S. DE SILVA, C.J.
The Applicant-Respondent was employed at the Hatton NationalBank in the capacity of an executive in grade I. He made an applicationto the LabourTribunal alleging, inter alia, that his services were wrong-fully, unjustifiably and maliciously terminated by the Bank (Appellant).He sought reinstatement with full backwages or in the alternativeadequate compensation for loss of career. His employment commencedon 14.9.74 and his services were terminated on 14.12.87. The Bankfiled answer and took up the position that the Applicant was dismissedfrom service for misconduct after he was found guilty at a domesticinquiry. After inquiry, the Labour Tribunal made order reinstating theapplicant in service with effect from 20.8.93 and directed the Bank topay him a sum of Rs. 61,200/- as one year’s salary for the period ofnon-employment. Both the Applicant and the Bank appealed againstthe order of the LabourTribunal to the High Court.The appeal of theBank was dismissed. The appeal of the Applicant was allowed and theBank was directed to pay the Applicant back wages for a period of 67months (full back wages). The Bank has now preferred an appeal tothis court.
R43 is the charge sheet served on the Applicant. The main chargeupon which the Applicant’s services were terminated was charge No. 1which reads as follows: “You did absent yourself from work from 20thJuly 1987 to 27th July 1987 falsely on the ground of alleged illness,forwarding a telegram and two medical certificates dated 22.7.87 and27.7.1987’’. The week commencing 20th July 1987 was the week duringwhich the Applicant was required to handle the safe keys. This was animportant duty entrusted to the Applicant. During that week he wasrequired to report for work at 7.40 a.m. and send the cheques for“clearing” by 8 a.m. If the cheques were not sent in time for “clearing”,the Bank would be shut out from “clearing” for that day. Admittedly,the applicant did not come for work the whole of that week. He sent atelegram which reached the Bank only at 5.30 p.m. on 20.7.87.Thereafter he submitted two medical certificates (marked R 35 and R36) dated 22.7.87 and 27.7.87 respectively.
In the previous month too, he was required to carry the safe keys.That was for the week commencing from 19.6.87; the whole of thatweek he kept away from work and submitted two medical certificates.The case for the Bank was that the Applicant feigned illness, submitted
false medical certificates and absented himself from work when it washis turn of duty to carry the safe keys. It was the evidence of theAssistant Manager, Wijesekera, that on 26.4.87 he informed theapplicant that he (i.e. the applicant) along with two other executiveswould be “rostered” on a weekly basis to carry the safe keys. Theapplicant did not agree to perform this duty and according to Wijesekera“he protested vehemently and he told me that despite his protest weare forcibly handing over the safe keys to him and as such he willcome either late or for some illness in the family (sic), so that he wouldget out from the clearing. He said that it will open our eyes to exempthim from (sic) the carrying of the safe keys.”
It was an important part of the case for the Bank that it was inpursuance of the protest and threat uttered by the applicant in April1987 in the presence of Wijesekera, that the applicant deliberatelyabsented himself from work on the pretext of illness. It was an equallyimportant part of the case for the Bank that the medical certificatesR35 and R36 (which sought to cover the period 20th to 27th July 1987)were false. The belief or disbelief of the testimony of Wijesekera wasone of the crucial issues that arose for consideration by the LabourTribunal. Mr. S. L. Gunasekera for the applicant contended that thefirst time Wijesekera reported to the Head Office, the threat alleged tohave been made by the applicant on 26.4.87 was only on 27.7.87 byletter R 32. On the other hand, Mr. Sivarasa for the Bank submittedthat Wijesekera in his evidence gave cogent reasons for the delay. Mr.Wijesekera stated that he and the applicant were good friends andfurthermore he did not take the threat seriously. It was only in July thathe realised that the pattern of absence from duty had a significance inrelation to the threat uttered by the applicant.
As for the medical certificates R35 and R36, the Bank led theevidence of witnesses Rowel, Emmanuel and Fernando in an effort toestablish their falsity. While the medical certificates stated that theapplicant was suffering from “acute viral fever”, the evidence led onbehalf of the Bank established that he had taken his wife to a dentistand he had gone to the Negombo branch of the Bank to deposit somecheques. It was also in evidence that witness Emmanuel had in 1992visited the same medical practitioner who had issued R35 and R36and obtained a “medical certificate” which purported to state that
Emmanuel was suffering from viral fever when in fact Emmanuel wasin good health. On the other hand, Mr. S. L. Gunasekera submittedthat the best and obvious method of ascertaining whether the applicantwas in fact sick was to have taken steps to have the Applicant examinedby a doctor selected by the Bank. Witness Obeysekera called by theBank admitted that this course of action could have been taken.
It is unnecessary for me to consider in greater detail the factualaspects of the case on which counsel addressed us at length. Theconcurrent findings of both the Labour Tribunal and the High Court areagainst the Bank. It is to be noted that an appeal from an order of aLabour Tribunal is only on a question of law.
On a consideration of the findings of the Labour Tribunal (andaffirmed by the High Court), I find that the submissions of Mr. Sivarasaare not without attraction. However, it cannot be said that the findingsare unsupported by the evidence; nor are the findings inconsistentwith and contradictory of the evidence. As observed by Sharvananda,
J., (as he then was) in the case of The Caledonian (Ceylon) Tea andRubber Estates Ltd., v. Hillman,.. the question of assessment ofevidence is within the province of the Tribunal, and, if there is evidenceon record to support its findings, this court cannot review those findingseven though on its own perception of the evidence this court maybe inclined to come to a different conclusion … Thus in order toset aside a determination of facts by the Tribunal, limited as this courtis only to setting aside a determination which is erroneous in law, theappellant must satisfy this court that there was no legal evidence tosupport the conclusions of fact reached by the Tribunal, or that thefinding is not rationally possible and is perverse having regard to theevidence on record. Hence, a heavy burden rested on the appellantwhen he invited this court to reverse the conclusions of fact arrived atby the Tribunal.. .The legislature has designated the Labour Tribunalas the proper tribunal to determine the facts, and this court should notseek to substitute its own view of the facts for that of the Tribunal.
I accordingly hold that there is no basis upon which this courtcould reverese the finding of the labourTribunal (affirmed by the HighCourt) that the termination of the services of the applicant was“unjustified and wrongful.”
However, there remains for consideration the issue whether theHigh Court and the LabourTribunal erred in law in failing to consider anorder for compensation in lieu of reinsatement. There is one significantfinding reached by the LabourTribunal which has a direct bearing onthis issue. The relevant finding reads as follows: ‘The Applicant didnot report for work on 20.7.87 due to illness. He had to do “chubb” safekeys duty that week commencing from 20th July. His absence wouldhave caused considerable inconvenience to the Bank in being unableto open the vault in time, to commence business. The Applicant shouldhave made all efforts to inform the Bank that he was not in a fit conditionto report for work from 20th July due to illness, to enable the managmentto get the duplicate key and open the vault in time. The least theapplicant could have done was to have informed the Bank managementby a telephone message in the morning of the 20th July explaining hisillness and that he would not be reporting for work so that themanagement could have made alternative arrangements . . . Theapplicant has not given a telephone message to the management onthe 20th July. But has instead sent a telegram which has been receivedby the Bank at about 5.30 p.m. By this negligence or carelessnessin not giving a telephone message he had acted in an irresponsiblemanner and had caused inconvenience to the management andothers.The applicant as a senior executive should have acted in amore responsible manner so as to cause the least amount ofinconveninece”. (Emphasis added). Moreover, the evidence showsthat cordial relations between the Applicant and the Bank had ceasedto exist for quite sometime. The Applicant’s services were terminatednearly 9 years ago. A Labour Tribunal is required to make an orderwhich is“just and equitable”. The order must therefore be fair and justby both parties.
On a consideration of the provisions of section 33 of the IndustrialDisputes Act, Siva Supramaniam, J., in the case of United IndustrialLocal Government and General Workers’ Union v. Independent News-papers Ltd.,(2) stated:- “A finding that the termination of service of aworkman is unjustified will not, therefore, entitle the workman to demandas of right his reinstatement; nor will such an order be obligatory onthe part of theTribunal.TheTribunal is vested with a discretion to decidewhether payment of compensation should be ordered as an alternativeto reinstatement.”
Having regard to the matters set out above, I am of the opinionthat this is not a fit case to make an order of reinstatement. I accordinglyset aside the order for reinstatement and the order for the payment ofbackwages made by the LabourTribunal and the High Court.
As regards the quantum of compensation in lieu of reinstatement,it was pointed out to us by Mr. S. L. Qunasekera, that the applicantcould have remained in service for 15 years more had his services notbeen terminated. Vythialingam, J. in Ceylon Transport Board v.Wijeratne,(3):-
“The amount however should not mechanically be calculated onthe bais of the salary he would have earned till he reached theage of superannuation.This observation was cited with approvalby Sharvananda, J. in Hillman’s case (supra at page 436). Thefinding of the Labour Tribunal referred to above shows that theconduct of the applicant himself (a senior executive) was notaltogether free of blame, it seems to me that in the facts andcircumstances of this case it would be just and equitable to orderthe Bank (Appellant) to pay the applicant a sum of Rs. 306000/-representing 5 years salary as compensation in lieu of reinstate-ment. I make order accordingly. The aforesaid payment ofcompensation is without prejudice to the applicant’s rights, if any,to statutory claims.The Appellant Bank must deposit the aforesaidsum of Rs. 306000/- with the Assistant Commissioner of Labour,Colombo Central, Department of Labour, Colombo 5, on or before30.12.1996. The order for reinstatement with back wagesamounting to 67 months’ wages made by the High Court is setaside.
In all the circumstances, I make no order for costs of appeal.
RAMANATHAN, J. -1 agree
WfJETUNGA, J.-1 agree.
The order for reinstatement with back wages set aside.
Compensation in lieu of reinstatement ordered.