INDRAJITH RODRIGO v. CENTRAL ENGINEERING CONSULTANCY BUREAU

029-SLLR-SLLR-2009-V-1-INDRAJITH-RODRIGO-v.-CENTRAL-ENGINEERING-CONSULTANCY-BUREAU.pdf


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INDRAJITH RODRIGO V.
CENTRAL ENGINEERING CONSULTANCY BUREAU
SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
AMARATUNGA, J. ANDMARSOOF, P.C., J.
S.C. APPEAL NO. 57/2004S. C. (SPL.). L.A. NO. 126/2004H.C. APPEAL NO. 105/2001L. T. APPLICATION NO. 13/1793/97SEPTEMBER 25™ , 2008
Industrial Disputes Act No. 43 of 1950 – Section 31B- Application to aLabour Tribunal – Section 31C- Duties and powers of Labour Tribunalin regard to applications under Section 3 IB- Tribunal may make suchorder as may appear to be just and equitable – Maxim – ei incimbitprobatio, qui dicit, non qui negat – Burden of proof lies upon him whoaffirms, not upon him who denies.
The High Court of the Western Province made the decision dated25.03.2004 pursuant to an Appeal filed by the appellant – respondent -appellant (appellant) against the decision of the Labour TribunalPresident, whereby the President made the order in favour of theappellant that he be reinstated in service in the respondent-appel-lant-respondent Bureau (respondent) and awarded Rs. 190,080.00 ascompensation for the period he had been out of employment consequentto his interdiction and subsequent dismissal. In his appeal to the HighCourt, the appellant only sought to have the compensation ordered bythe Labour Tribunal enhanced. There was also a cross-appeal filed bythe respondent against the order of the Labour Tribunal. These appealswere taken up together in the High Court which decided in favour ofthe respondent and set aside the decision of the Labour Tribunal anddismissed the appeal of the appellant.
The appellant sought leave to appeal against the decision of the HighCourt and leave to appeal was granted by the Supreme Court.
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Held:
A Labour Tribunal, in the process of redressing grievances ofworkmen in a just and equitable manner, cannot lose sight ofprocedural propriety and evidentiary legitimacy.
An unduly technical approach should not be adopted towardsthe equitable remedy provided by Section 3IB of the IndustrialDisputes Act.
In Labour Tribunal proceedings where .the termination ofservices of a workman is admitted by the respondent, the onus ison the latter to justify termination by showing that there were justgrounds for doing so and that the punishment imposed was notdisproportionate to the misconduct of the workman. The burdenof proof lies on him who affirms, and not upon him who denies asexpressed in the maxim ei incimbit probatio, qui dicit, non quinegat.
It is a well established principle that the primary (albeit discretion-ary) remedy for harsh, unjust or unreasonable termination of em-ployment is reinstatement to the same position or re-engagementto a comparable position held prior to the termination.
Held further:
Reinstatement has always been awarded at the discretion of theLabour Tribunal or Court and such discretion has to be exercisedjudicially taking into consideration all the circumstances of thecase.
The back wages payable to the appellant have to be computed onthe basis of the terminal salary drawn by him on the last day heactually worked for the respondent.
Cases referred to :
A. G. v. Windsor – 24 Beav 679
Manager, Ury Group, Passara v. The Democratic Workers’ Congress- 71 NLR 4
Up Country Distributors (Pvt.) Ltd. v. Subasinghe – 1996 Sri L. R.330
Associated Cables Ltd. v. Kulatunga – 1999 2 Sri L.R. 314
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Millers Ltd. v. Ceylon Mercantile Industrial and General WorkersUnion- 1993 1 Sri L. R. 179
Vasudeva Nanayakkara v. K. N. Choksy and Others – S. C. Applica-tion No. 209/07, S. C. Minutes of 13. 10. 2009
Amarajeewa v. University of Colombo 1993 2 Sri L. R; 327
Saleem v. Hatton National Bank – 1994 3 Sri L. R. 409
The Caledonian (Ceylon) Tea and Rubber Estates Ltd. V. J. S.Hillman 1977 79 (1) NLR 421
Sithamparanathan v. Peoples Bank – 1989 1 Sri L.R. 124
Jayasuriya v. Sri Lanka State Plantationas Corporation – (1995) 2Sri L. R. 379
Hatton National Bank v. Perera – 1996 2 Sri L. R. 231
APPEAL from the High Court of the Western Province.
Manohara de Silva, P. C., with Pubudini Wickremaratne Rupasinghe forAppellant.
A. Srinath Perera, P. C., with Shammil J. Perera and P. Sarathchandrafor Respondent.
Cur. adv. uult.
December 17, 2009MARSOOF, J.
This is an appeal from the decision of the High Courtof the Western Province dated 25th March 2004. The saiddecision of the Provincial High Court was made pursuantto the appeal filed by the Appellant-Respondent – Appellant(hereinafter referred to as “the Appellant”) against thedecision of the President of the Labour Tribunal dated 8thNovember 2001, whereby he was reinstated in service as anEngineer (Grade III) in the Respondent-Appellant- RespondentBureau (hereinafter referred to as “the Respondent”) andawarded Rs. 190,080/- as compensation (as equivalentto two years salary as back wages) for the period he hadbeen out of employment consequent to his interdiction and
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subsequent dismissal from service. In his appeal to theProvincial High Court, the Appellant had sought only to havethe said compensation enhanced. There was also a cross-appeal filed in the Provincial High Court by the Respondentinter alia on the basis that the learned President of the LabourTribunal had failed to take into consideration the fact that thetermination of service on the basis of which the Appellant hadcome before the Labour Tribunal had subsequently been setaside by a decision of the Supreme Court by virtue of whichhe was paid back wages and consequential dues on the as-sumption that he had continued in service for nearly two moreyears, and that the subsequent termination of his service wasnot the subject to the application filed in the Labour Tribunal.The Provincial High Court held with the Respondent on bothappeals and made order that the application made by theAppellant to the Labour Tribunal should stand dismissed.
Before adverting to the several questions of lawon which leave to appeal was granted by this Court, it isnecessary to refer briefly to the facts of this case which willmake it easier to comprehend the said questions of law.
The Appellant had initially joined the service of theRespondent on 31st January 1986 on “Contract basis” andfrom 3rd November 1986 he had been absorbed into thepermanent cadre as a Grade III Engineer. It transpires thatwhile so serving, the Appellant was served with a chargesheet dated 14th June 1995 (Rl) alleging that he “had failedto comply with the directions that had been given”. Followinga disciplinary inquiry, the proceedings or report of whichwere not produced by either party at the Labour Tribunal,the Appellant was served with a letter dated 19th Decem-ber 1995(R2) informing him of the decision of the inquiry,which was against him, and asking the Appellant to resignfrom his post as a “mercifuTaltemative to dismissal by the
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Respondent. The Appellant refused to resign and wassubsequently dismissed from service by the letter dated 14thNovember 1996(R3) issued by the Chairman of the RespondentBureau.
Invoking the jurisdiction of the Labour Tribunal againsthis dismissal in terms of Section 3IB of the IndustrialDisputes Act No. 43 of 1950, as subsequently amended,the Appellant filed his application dated 9th May 1997praying for reinstatement with back wages, or alternatively, forcompensation in a sum of Rs.l million for loss of livelihood,and Rs.4 million for promotions and scholarships whichhe had allegedly been deprived of, and for gratuity. TheRespondent filed its answer on 30th June 1997, expresslyadmitting in paragraph 7 thereof, the termination of theAppellant’s services by its letter dated 14th November 1996(R3), and seeking to justify the same on the basis that thesaid termination of services was just and reasonable in viewof the Appellant’s alleged grave misconduct.
Since the Appellant had also filed SC ApplicationNo 220/96 (FR) in this Court challenging the aforesaidtermination of his service under Article 126 of theConstitution, by his order dated 7th November 1997 thePresident of the Labour Tribunal directed that the applicationfiled by the Appellant be laid by pending the finaldetermination of the said fundamental rights application.Based on the admission made by the learned Counsel for theRespondent that it was the Board of Directors, and not theChairman of the Respondent, that had the power to dismissthe Appellant under the provisions of the State IndustrialCorporations Act No. 49 of 1957, as subsequently amended,on 11th June 1998 this Court by its order marked ‘R5’ setaside the purported dismissal of the Appellant and directed
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the Board of Directors of the Respondent “to take a decisionafter considering the report of the inquiring officer and thedisciplinary proceedings.” Thereafter, by a letter dated 6thJuly 1998(R8), the Respondent informed the Appellant thatupon considering the disciplinary inquiry report dated 17thNovember 1995 and other relevant documents relating to thesaid inquiry, the Board of the Respondent had made a deci-sion to dismiss the Appellant from its service.
The Appellant, being aggrieved by the said decision ofthe Board filed another fundamental rights application, SCApplication No. 438/98(FR), against the second dismissal.An amicable settlement was reached by the parties basedon which this court made, its order dated 16th March 2000(RIO) granting the Appellant limited relief to the extent ofconsidering the Appellant as being in employment from 14thNovember 1996 to 6th July 1998 during which period he wasout of employment. It appears from the said order that it wasexpressly agreed that the Appellant shall be entitled to “thewages and all other consequential dues on the assumptionthat he has in fact worked during that period” and that theamounts thus due to the Appellant shall be set off againstthe money payable by the Appellant to the RespondentBureau inter alia on a car loan and distress loan taken by him.Subject to the aforesaid, the fundamental rights applicationfiled by the Appellant was pro-forma dismissed.
Upon the conclusion of the said fundamental rightsproceedings, the application filed by the Appellant in theLabour Tribunal which had , as already noted, been laidby, was called in the Labour Tribunal on 5th May 2000and was fixed for trial on 20th July 2000. It is significant tonote that on 5th May 2000 no objection was taken by theRespondent to the maintainability of the application filedby the Appellant in the Labour Tribunal, nor was anyapplication made on behalf of either the Appellant or the
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Respondent to amend the pleadings filed by them in theLabour Tribunal. On 20th July 2000 the case was not takenup for trial, and was re-fixed for trial on 29th September2000. On the latter date too at the commencement of thetrial, no objection was taken to the maintainability of theapplication filed by the Appellant in the Labour Tribunal.Instead, on behalf of the Respondent, its General ManagerSarath Piyadasa, was called to give evidence. In the courseof his testimony, he stated that the purported letter oftermination dated 14th November 1996 (R3) had beenwithdrawn by the Respondent’s subsequent letter dated 1stJuly 1998 (R7) pursuant to the decision of this court in S.C.Application No. 220/96 (F.R.), and that in the circumstancesthe Appellant cannot have and maintain the application filedby him in the Labour Tribunal.
It is significant to note that witness Sarath Piyadasa wassubjected to cross-examination by learned Counsel for theAppellant on that date and on the next date of tried, namely21st November 2000. Under cross-examination the witnessadmitted that the letters of termination dated 14th November1996 (R3) and 6th July 1998 (R8) were based on the samedisciplinary proceedings and the report of the inquiryofficer dated 17th November 1995, copies of which were notproduced before the Labour Tribunal. It is material to notethat although by the aforesaid letters of termination ofservice, the Appellant had been found guilty of charge (a)of the Charge Sheet dated 14th June 1995 (Rl), for certainalleged acts of insubordination, the said witness did not inthe course of his testimony, furnish any particulars of thesaid acts of insubordination or in any other way seek tojustify the termination of the Appellant's services. No otherwitnesses were called by the Respondent, and the Appellanttoo closed his case without getting into the witness box orcalling any other witnesses on his behalf.
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The proceedings in the Labour Tribunal culminated inits order of 8th November 2001 in the course of which thepresident of the Labour Tribunal dismissed the objectionto the maintainability of the application before the LabourTribunal as a mere technicality. The President of theTribunal adverted to the admission contained in Paragraph7 of the answer filed by the Respondent to the effect thatthe Appellant’s services were terminated by the Respondent’sletter dated 14th November 1996 (R3), and emphasizedthat in the absence of any amendment “the answer stillremains.”He accordingly held that “the services of the appli-cant (the Appellant) terminated on 14.11.1996 and the saidtermination was unjust and unreasonable.”Accordingly, theTribunal granted relief to the Appellant by way of reinstate-ment in service of the Respondent with effect from 1st Janu-ary 2002 along with back wages computed on the basis of thebasic salaiy drawn on 6th July 1997 which was Rs. 7,920/-per month for two years aggregating to Rs. 190,080/-.
As stated earlier, both the Appellant as well as theRespondent appealed to the Provincial High Court againstthe order of the Labour Tribunal. These appeals were takenup together in the High Court which decided in favour of theRespondent overturning the decision of the Labour Tribunal,and dismissed the appeal of the Appellant. In coming toits decision, the High Court stressed that the failure of theAppellant to amend his application to the Labour Tribunal tomake reference to the subsequent letter of termination hasresulted in uncertainty regarding the specific date of termina-tion of service which considered relevant to the time-bar formaking applications for relief against wrongful termination ofservice to the Labour Tribunal under the Industrial DisputesAct. The High Court emphasized the fact that the Appellantwas for all purposes deemed to have continued in service atthe Respondent Bureau till 7th July 1998, and therefore theapplication dated 9th May 1997 filed by the Applicant in the
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Labour Tribunal was fatally defective insofar as it sought toredress a termination of service alleged to have occurred on14th November 1996.
The Appellant sought leave to appeal against the saiddecision of the High Court, and leave to appeal was grantedby this Court on the following questions of law:
Did the learned High Court Judge err in failing toconsider that the termination letter dated 14th November1996 and the subsequent termination letter dated 6<hJuly 1998 has been made based on the findings of thesame disciplinary proceedings/ disciplinaiy report, andthe only difference between the two letters was being theauthority that made the decision?
Did the learned High Court Judge err in failing toconsider that the Respondent has failed to submit anyevidence to justify termination and even failed to producethe purported disciplinary inquiry report dated 17lhNovember 1995 which the Board is said to have relied onfor the termination of the Appellant’s service?
Did the learned High Court Judge err in failing to considerthat the punishment given to the Appellant is totallydisproportionate to the charge contained in the chargesheet dated 14th June 1995?
Did the learned High Court Judge err in not talking intoconsideration the purpose of a Labour Tribunal, which isto grant a just and equitable remedy amd to dispense withstrict procedure?
Did the learned High Court Judge err in failing toconsider that the leaimed President of the LabourTribunad erred in assessing back wages in as much as thelearned President of the Labour Tribunal erred in taking
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into account the last drawn salary as at 14.11.1996 for theassessment of back wages when it should be the monthlysalary which he would be entitled to on 06.07.1998?
The question of maintainability of the LT application
The submissions of President’s Counsel appearing forthe Appellant as well as the Respondent focused on question(a) and (d) above, which have been raised by the Appellant inthe face of the decision of the High Court that the Appellant’sapplication filed in the Labour Tribunal was not maintain-able insofar as the purported termination of his services bythe letter dated 14th November 1996(R3), against which hesought redress, has been rectified by an order of this Courtin S.C. Application No. 220/96 (FR) and also withdrawn bythe Respondent’s subsequent letter dated 1st July 1998(R7). The learned High Court Judge had taken the view thatthe effect of the subsequent order of this Court in S.C.Application No. 438/98 (FR) dated 16th March 2000 (R10),awarding the Appellant all wages and other consequentialdues up to 6th July 1998 (being the operative date of the secondletter of termination of service marked ‘R8’), was to restore himin service up to that date, and that the Appellant couldnot in law maintain his application for redress against atermination of services which allegedly took place on 14thNovember 1996. The High Court held that this went to theroot of the jurisdiction of the Labour Tribunal, and that byreason of the failure of the Appellant to amend his applicationspecifying the date of his subsequent termination of servicesby the letter dated 6th July 1998 (R8), the said application wasfatally defective and has necessarily to be rejected.
Mr. Srinath Perera, P.C., appearing for the RespondentBureau, sought to justify the decision of the High Courtby arguing that the Appellant’s application to the LabourTribunal was not maintainable insofar as the purported
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termination of his services by ‘R3” against which he soughtredress, has been subsequently withdrawn, and he has notcomplained against the subsequent termination letter dated6th July 1998(R8). He submitted that in terms of Section 3 IBof the Industrial Disputes Act, the jurisdiction of the LabourTribunal may be invoked by a workman directly or throughhis trade union only for “relief or redress” in respect of thetermination of his services, terminal benefits and “ suchother matters relating to the terms of employment, or thecondition of labour, of a workman as may be prescribed.“ Learned President’s Counsel submitted that by reason ofthe fact that the termination of service against which reliefwas sought by the Appellant has been rectified, the Tribunalwas not competent to grant him redress. Mr. Perera relied onSection 101 of the Evidence Ordinance which enacts thatthe burden of proof lies upon “ him who affirms, not uponhim who denies”, to contend that the burden of proof inestablishing a valid basis for his application lay on theAppellant. He invited the attention of the Court to AG v Windsorat 706 to support the position that the Appellant’s failureto specify the second date of termination of his servicesfurnishes a strong inference against him. He submittedthat the Respondent was under no obligation in law to leadany evidence whatsoever of any misconduct on the part ofthe Appellant as the Appellant had failed to submit a validapplication to the Tribunal specifying the actual date of histermination of services, and that the High Court of the WesternProvince quite rightly set aside the decision of the LabourTribunal.
Mr. Manohara de Silva, P.C., appearing for the Appellant,submitted that the learned High Court Judge erred in failingto consider that the endeavour to terminate the services ofthe Appellant, which commenced with the letter marked*R3’ and culminated with the second letter marked ‘R8’,tantamount to a single act of termination and that said
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letters of termination of service, though emanating fromdifferent sources, have been based on the findings of thesame purported disciplinary proceedings and the disciplinaryreport dated 17th November 1995, the only differencebetween the said letters being the dates on which the saidtermination of services were intended to take effect. Hestressed that the Respondent Bureau, after withdrawing theoriginal letter of termination, neither served fresh chargesagainst the Appellant nor held a fresh disciplinary inquiry,and that the same disciplinary inquiry report was submittedto the Board of Directors and the decision to terminate wasarrived at.
Adverting to the question of adequacy of pleadings,Mr. de Silva emphasised that since the action taken by theRespondent to terminate the services of the Appellant werechallenged in the Labour Tribunal as well as in the SupremeCourt in two fundamental rights applications, namely SCApplication No.2210/96 (FR) and SC Application No.438/98(FR), the Labour Tribunal application was laid by, and wastaken up for inquiry only after the conclusion of the secondfundamental rights application, and that since the decisionscontained in 1^3’ and 1*8 ’ related to the same alleged act ofmisconduct with respect to which there had been only onedisciplinary proceedings and report, there was no necessityfor the Applicant to either amend his application filed inthe Labour Tribunal or file a fresh application. Mr. de Silvasubmitted that since there is no requirement that the dateof termination should be pleaded, this was purely a matterof evidence. He further submitted that under the applicablelegislation, the Labour Tribunal was required to make a “justand equitable” order and that the equitable jurisdiction ofthe Tribunal should not be, and has never been, impededby technicalities. In support of this contention, he referredto the decision in Manager, Ury Group, Passara v. the Demo-
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erotic Workers Congress™ at 47, in which this Court showedleniency to a workman who had failed to state the name ofhis employer correctly in the application filed by him in theLabour Tribunal.
I am of the opinion that there is merit in the submissionof the learned President’s Counsel for the Appellant. It isexpressly laid down in Section 31C (1) of the IndustrialDisputes Act that every Labour Tribunal is bound “to makeall such inquiries into any application filed before it” and“hear all such evidences as the Tribunal may considernecessary, and thereafter make such orders as mayappear to the Tribunal to be just and equitable”. In decisionssuch as Up Country Distributors (Put.) Ltd v Subasinghef31and Associated Cables Ltd. V Kulathunga141 this Courtgave effect to the said statutory provision and held thatLabour Tribunals should not be bound by strict proceduralrequirements in the process of making just and equitableawards. In Millers Ltd., v. Ceylon Mercantile Industries andGeneral Workers Union151 at 183 G.R.T.D. Bandar anayake.J.observed that-
“An award is just and equitable only if it takes intoconsideration the interest of all the parties.”
The equitable nature of the jurisdiction of LabourTriunals has consistently been recognized in the decisions ofour courts. However, in the process of redressing grievanc-es of workmen in a just and equitable manner, one cannotlose sight of procedural propriety and evidentiary legitimacy.In this context, it is always important to bear in mind thefollowing dictum of Weerasekera.J. in Associated Cables Ltd.,v Kalutarage (supra) at 320:-
“Although the Labour Tribunal was required to make ajust and equitable order in my opinion it must not onlybe just and equitable but the procedure adopted to that
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end must be legal and every judicial body exercising
judicial powers must so arrive at an order only on legal
evidence. ”
It was not contended by the Respondent that theapplication filed by the Appellant was ab initio void.According to the Respondent, the application cannot bemaintained by reason of supervening events such as thevacation by this Court of the original termination of theAppellant’s services, the withdrawal by the Respondent ofthe original letter of termination R3, and the payment of allemoluments for the period during which by reason of hisdismissal, the Appellant had not reported for work from 14thNovember 1996 to 6th July 1998 (subject to set off amountsdue from the Appellant on certain loans taken by him). Itwas the contention of learned President’s Counsel for theRespondent that these supervening circumstances hadthe effect of remedying the Appellant’s grievance andsending the “termination of services”, for which the Appellanthad sought relief from the Labour Tribunal, into oblivion. I
I am unable to agree with the Respondent’s line ofreasoning. It is important to remember that the Appellanthad to file two applications in this Court, SC ApplicationNo. 220/96 (FR) and SC Application No. 438/98 (FR), withrespect to alleged violations of his fundamental rights, andthe payment of emoluments was agreed upon only in thesecond of these cases. The order made by this Court in SCApplication No. 220/96 (FR) merely set aside the originaltermination to enable the Board of Directors of theRespondent, which admittedly was the single authorityhaving the power to terminate the services of an officersuch as the Appellant, to consider the Appellant’s caseafresh, but when the said Board of Directors also decided toterminate the Appellant’s services, he sought redressagainst the second termination in SC Application No.
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438/98(FR), which led to the order of this court dated 16thMarch 2000 (RIO) by which the Appellant was awarded hissalaries and other emoluments for the period 14th November1996 to 6th July 1998, during which admittedly his removalfrom service was invalid.
The question is whether the amicable settlement reachedby the Appellant in SC Application No. 438/98(FR) whichresulted in the order of this Court dated 16th March 2000(R10), in any way affected the maintainability of theapplication dated 9th May 1997 filed by the Appellant in theLabour Tribunal. It is noteworthy that while the SupremeCourt makes no mention of the Appellant’s application thenpending before the Labour Tribunal that had been laid by,it refrained from making its order of 16th March 2000 a“full and final” settlement of all disputes between theAppellant and Respondent. A careful scrutiny of the brieforder made by this Court leaves no doubt that in dismissingthe Appellant’s application pro forma in view of thesettlement reached, the Court confined the relief it therebygranted to wages and other dues that would have, if not forthe invalid interruption of his service, been lawfully earnedby the Appellant between the dates of the first (and admit-tedly invalid) letter of termination and the second letter oftermination. This Court has been careful not to endow thesaid order with a gloss of finality.
In my considered opinion, an award of withheldemoluments up to the date of the valid, though notnecessarily just, termination of services of an employeewould not adequately redress the grievance of suchemployee. What this Court had sought to do in the twofundamental rights cases filed by the Appellant was to givehim redress by setting aside the first letter of terminationof services and directing the payment of his wages andall other consequential dues up to the date of the second
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letter of termination “on the assumption that he has in factworked during that period”, leaving it to the Labour Tribunal,as it lawfully might, to determine the question whether thetermination of the Appellant’s services was just, and if not,what relief should be granted to him. The attitude of theSupreme Court is understandable in the light of my ownobservation in the course of my recent judgment in VasudevaNanayakkara v K. N. Choksy and Others,(6) that the affidavitprocedure applicable for the determination of fundamentalrights cases “is ill-equipped” to deal with disciplinary proce-dures, which may in appropriate cases result in the termina-tion of employment.
It needs to be observed that the fact that the Appellant wassuccessful in obtaining certain relief from this Court throughthe above mentioned fundamental rights applications, whichincluded payments of wages and other consequential duesfor the period 14th November 1996 to 6th July 1998, doesnot necessarily mean that his services were terminated onlyon the latter date, since receiving remuneration is not theonly incident in the contract of service. Such a contractencompasses mutual rights and obligations, which in factregulate and harmonises the relationship between theemployer and workman. The relationship between masterand servant, in a broad sense, is a partnership betweencapital and labour, and the common understandingfamiliar to all who engage mind and body in entering theservices of another, is that employment brings with it notmere material emoluments, but also the benefit of whatis commonly called “job satisfaction”, which providesthe employee the feeling of contentment and a sense ofparticipation in the enterprise of the employer, whether it bethe State, a public corporation, a company or an individual.This mental element is of fundamental importance to a
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dignified human condition, and conversely, the deprivation ofemployment on any grounds is a rejection of an individual’sright to this basic dignity.
I am in agreement with the submission of the learnedPresident’s Counsel for the Appellant that the letters oftermination of services, dated 14th November 1996 (R3) and6th July 1998 (R8), arose from the same charge sheet (R2)and purported disciplinary proceedings and disciplinaryreport, and were part of the process that led to the Appellantbeing deprived of his employment in the Respondent Bureau.In my opinion, the learned President of the Labour Tribunalvery correctly held that the effective date of termination of theAppellant’s services was 14th November 1996, as from thatdate he had not only been deprived of his emoluments buthad also lost the opportunity to work in the RespondentBureau. The fact that through the intervention of this Courtthe invalid exercise of authority by the Chairman of theRespondent Bureau was rectified by the setting aside andwithdrawal of the letter of termination of services dated14th November 1996 (R3) paving the way for the Board ofDirectors of the Respondent having disciplinary authorityover the Appellant to consider the disciplinary reportafresh and make a decision, does not in any way affect themaintainability of the application already made by theAppellant to the Labour Tribunal as the said Board hadsimply completed the process set in motion by the Chair-man by adding its imprimatur to the decision to terminate theservice of the Appellant taken in 1996. I
I am also of the view that the failure on the part of theAppellant to amend his application to specify the date ofthe second letter of termination as the date of his allegedtermination of services, did not in any way prejudice themaintainability of the application filed by him in the Labour
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Tribunal. This is because, in my opinion, the Appellant hadinvoked the jurisdiction of the Labour Tribunal on the ba-sis that his services were terminated on 14th November 1996,and none of the intervening circumstances adverted toby Counsel have in any way affected the reality of suchtermination. It is noteworthy that the averment that theAppellant’s services in the Respondent Bureau was terminat-ed by the letter dated 14th November 1996 (-R3), as set out inparagraph 6 of the application filed by the appellant in theLabour Tribunal, has been expressly admitted in paragraph7 of the answer dated 30th June 1997 filed by the Respon-dent, and neither party had sought to amend their originalpleadings which therefore stand, and upon these pleadings itis manifest that the Respondent has admitted termination ofthe Appellant’s services with effect from 14th November 1996,which was apparently the basis on which evidence was led atthe ensuing Labour Tribunal inquiry.
After this Court made its order dated 15th March 2000in SC Application No. 438/98 (FR), the Labour Tribunalcase filed by the Appellant was called on two dates,namely on 5th May 2000 and 20th July 2000, on which datesthe Respondent did not raise any objection to themaintainability of the application of the Appellant. Neitherwas any such objection raised on 29th September 2000before the Labour Tribunal when the Respondent calledits only witness, General Manager Sarath Piyadasa, totestify. While as pointed out by M. D. H. Fernando J inAmarajeewa v. University of Colombo71 at page 321, theIndustrial Disputes Act does not prescribe the procedurefor the conduct of inquiries before Labour Tribunals, andunder Section 31C(2) of the said Act it is for the LabourTribunal to devise a suitable procedure; it is the inveteratepractice in Labour Tribunal proceedings for the Respondentto lead evidence to justify termination of service of a workmanwhere the fact of termination is admitted. Thus, when the
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Respondent called Sarath Piyadasa to give evidence it waspresumably to justify the termination of the Appellant’s ser-vices, which according to the pleadings had admittedly takenplace on 14th November 1996.
The witness, however, took the Appellant as well as theTribunal by surprise when he took up the position towardsthe end of his examination in chief, that by reason of thesettlement reached and the order made by this Court in thesaid fundamental rights case, the application filed by theAppellant in. the Labour Tribunal cannot be maintained inlaw. The gravamen of his testimony was that the Appellant’sapplication to the Labour Tribunal dated 9th May 1997cannot be maintained as the effective date of the terminationof his services was 6th July 1998. The testimony, however,was altogether inconsistent with the Respondent’s pleadingsand previous conduct before the Labour Tribunal.
For the aforesaid reasons I hold that questions (a) and (d)above should be answered in the affirmative and in favour ofthe Appellant, and, more specifically, that the learned HighCourt Judge erred in failing to consider the two letters of ter-mination of services dated 14th November 1996 (R3) and 6thJuly 1998 (R8) in their perspective as constituting one singleprocess which led to the termination of the Appellant’s ser-vices, and in adopting an unduly technical approach towardsthe salutary and equitable remedy provided by Section 3IB ofthe Industrial Disputes Act.
Sufficiency of evidence to justify termination of sendees
Question (b) on which leave to appeal was granted in thiscase, is whether the learned High Court Judge erred in failingto consider that the Respondent has not led any evidence inthe Labour Tribunal to justify termination of the Appellant’sservices and had even failed to produce the purporteddisciplinary inquiry report dated 17th November 1995 which
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the Board is said to have relied upon for the termination ofthe Appellant’s service. As noted already, in Labour Tribunalproceedings where the termination of services of a workmanis admitted by the Respondent, the onus is on the latter tojustify termination by showing that there were just groundsfor doing so and that the punishment imposed was not dispro-portionate to the misconduct of the workman. In this appeal,the question of proportionality has specifically been raisedthrough question (c) on which leave to appeal was granted. Itis convenient to consider both these questions together, butit may be observed at the outset that the learned High CourtJudge, who had taken the view that the application filed inthe Labour Tribunal by the Appellant was fatally defectiveand should therefore stand dismissed, had understandablynot looked at these questions too closely.
It is trite law that the burden of proof lies upon him whoaffirms, not upon him who denies as expressed in the maximei incimbit probatio, qui dicit, non qui negat, and in view ofthe admission of termination of the Appellant’s services inparagraph 7 of the answer of the Respondent dated 30th June1997, the burden was clearly on the Respondent to justifythe decision to terminate the services of the Appellant. Theonly witness called by the Respondent to testify in the inquirybefore the Labour Tribunal was the General Manager of theRespondent Surath Piyadasa, and it is remarkable that inthe course of his testimony, no attempt was made to eithersubstantiate the allegation contained in the charge sheetdated 14th June 1995 (Rl) that the Appellant “had failed tocomply with the directions that had been given” on 11th May1995 and 6th June 1995, or to show that the Appellant wasguilty of any misconduct. In particular, the witness failed toproduce the purported disciplinary inquiry proceedings andthe report on the basis of which the decision to terminatethe Appellant’s services had been arrived at. All this clearlydemonstrated that there was absolutely no justification forthe termination of the Appellant’s services or even for theinposition of a less severe punishment.
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I note that the Appellant has not chosen to testify or callany witnesses on his behalf in the Labour Tribunal, but thisomission will only affect the relief that may be granted bythat tribunal, and as far as the termination of his services isconcerned, which is an admitted fact, the onus was clearlyon the Respondent to lead evidence to justify the decisionto dismiss the Appellant from service, and in the absenceof any such evidence, the only possible inference is that thetermination of the Appellant’s services cannot be justified inlaw. I accordingly hold that questions (b) and (c) have to beanswered in the affirmative and in favour of the Appellant,as the Learned High Court Judge had erred in not takinginto consideration either the failure of the Respondent to leadany evidence to justify the termination of services of theAppellant, or the appropriateness of the punishment ofdismissal imposed on the Appellant.
Just and equitable relief
I now turn to the question of relief. In this regard,this Court has granted leave to appeal on the followingquestion:-
Did the learned High Court Judge err in failing to considerthat the learned President of the Labour Tribunal erredin assessing back wages in as much as the learnedPresident of the Labour Tribunal erred in taking intoaccount the last drawn salary as at 14.11.1996 for theassessment of back wages when it should be the monthlysalary which he would be entitled to on 06.07.1998?
This question has to be viewed in the context of theapplication made by the Appellant to the Labour Tribu-nal, the relief awarded by the Tribunal and the substantivequestions that have come up for determination in this appealfrom the decision of the High Court. It is noteworthy thatin his application to the Labour Tribunal, the Appellant has
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prayed for reinstatement with back wages, or alternatively,for compensation in a sum of Rs. 1 million for loss of liveli-hood, and Rs. 4 million for promotions and scholarships whichhe had allegedly been deprived of and for gratuity. After dueinquiry, the learned President of the Labour Tribunal by hisorder dated 8th November 2001 held that the terminationof the services of the Appellant was “unjust and unreason-able” and directed that the Appellant be reinstated in serviceas an Engineer (Grade III) in the Respondent Bureau witheffect from 1st January 2002 and be paid Rs. 190,080/- ascompensation (as equivalent to two years salary as back-wages)for the period he had been out of employment consequent tohis interdiction and subsequent dismissal from service.
The Appellant had appealed to the High Court againstthat order inter alia on the ground that the President of theLabour tribunal erred in computing the back wages based onthe last drawn salary as at 14th November 1996 (date of thefirst termination letter R3) when it should have been basedon the monthly salary which he would have been entitled toon 06th July 1998 (date of second termination letter R8). TheHigh Court, which took the view that there was no properapplication before the Labour Tribunal on the basis of whichany relief can be granted to the Appellant, had summarilydismissed the Appellant’s appeal, and when granting leaveto appeal against the decision of the High Court, question(e) above was formulated to enable this aspect of the matterto be considered if this Court is of the opinion that the HighCourt was in error when it held that the Appellant was notentitled to any relief.
The Labour Tribunal is endowed with a widediscretion in regard to the grant of just and equitable reliefto any workman invoking its beneficial jurisdiction. AsWijetunga J observed in Up Country Distributors (Pvt) Ltd., vSubasinghe (supra) at 335,
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12009}! SRI LR.
“The legislature has in its wisdom left the matter in thehands of the tribunal, presumably with the confidencethat the discretion would be duly exercised. To my mindsome degree of flexibility in that regard is both desir-able and necessary if a tribunal is to make a just andequitable order. ”
His Lordship Kulatunga, J. in the course of his judgmentin Saleem v Hatton National Bankl&) at page 415, set out theparameters for the exercise of this discretion in the followingwords:
“Whilst the question is not free from difficulty, itappears that in each case the Court has evolved a formulafor making the order which it considered to be conso-nant with the spirit of labour law and practice and socialjustice. In doing so, the Court has been guided by threecardinal principles namely, the jurisdiction of the LabourTribunal is wide; relief under the Industrial Disputes Act isnot limited to granting benefits which are legally due; andthe duty of the tribunal is to make the order which may ap-pear to it to be just and equitable. ”
It is necessary to bear in mind the aforesaid principlesin reviewing the decision of the Labour Tribunal in regardto the question of relief. In considering what relief should begranted to the Appellant in all the circumstances of this case,the question arises as to whether it is legitimate to considerthe contents of the pleadings and affidavits filed by the Appel-lant in SC Application No. 220/96 (FR) and SC Application No.38/98 (FR), which no doubt have a veneer of truth and showat least on a prima facie basis that the Appellant has beensubjected to continuous harassment by his superiors, includ-ing the General Manager of the Respondent, allegedly becausehe had complained about the misuse of company vehicles bya Project Manager under whom he worked. However, since
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the aforesaid fundamental rights applications were amicablyresolved, this Court has not arrived at any findings in regardto these matters, and even if it had, such findings cannotlegitimately supply the omission of the Appellant to testifybefore the Labour Tribunal and be subjected to cross-examination, which, after all, is the time tested tool used inthe adversarial system to get at the truth. Nevertheless, Ihave already (under the heading “Sufficiency of Evidence toJustify Termination of Services”) answered question (d) abovein the affirmative, as the only reasonable inference that canbe drawn from the failure of the Respondent to adduce anyevidence before the Tribunal to show that the Appellant wasguilty of some serious misconduct sufficient to justify dis-missal, is that the decision to terminate his services wasunjust and unreasonable. The Respondent only called onewitness to testify on its behalf in the Labour Tribunal, andthe thrust of the testimony of this witness was that for thevarious reasons adduced by him, the application filed by theAppellant in the Labour Tribunal is not maintainable, and histestimony does not shed any light in regard to the question ofrelief that the Appellant may be reasonably entitled to.
In view of the fact that the Respondent has admittedthat the Appellant’s services were terminated with effect from14th November 1996 and has also made no attempt to provethat the Appellant was guilty of any misconduct or even toplace before the Labour tribunal any material circumstancesthat would make an order of reinstatement inappropriate,and in view of the decision of this Court on questions (a) to
on which leave to appeal has been granted, I hold that theorder of reinstatement made by the Labour Tribunal shouldbe affirmed. It is a well established principle that the primary(albeit discretionary) remedy for harsh, unjust or unreasonabletermination of employment is reinstatement to the sameposition or re-engagement to a comparable position heldprior to the said termination. Compensation is a secondary
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cure and is only ordered where, in the discretion of the courtor Tribunal Court, it is held the reinstatement or re-engage-ment is not appropriate. Reinstatement has always beenawarded at the discretion of the Labour Tribunal or Court andsuch discretion has to be exercised judicially taking intoconsideration all the circumstances of the case. See, TheCaledonian (Ceylon) Tea and Rubber Estates Ltd., v. J. S.Hillman™, Sithamparanathan v Peoples Bank mJayasuriya v.Sri Lanka State Plantations Corporation11", Hatton NationalBank v Perera,13K In the absence of any evidence thatwould have any bearing in regard to the questionof reinstatement, such as whether or not the Appellanthas got himself gainfully employed elsewhere during thependency of the appeals to the High Court and to this Court,I hold that it would be just and equitable to reinstate theAppellant in service as an Engineer (Grade III) in theRespondent Bureau with effect from 1st January 2010. I
I have also considered the question as to whether theAppellant should be reinstated in a higher grade in the servicein view of the fact that, had he not been unjustly dismissedfrom service, he would have had opportunities of promotionto a higher grade. However, in the absence of evidence in thisregard, and in particular, the failure of the Appellant to getinto the witness box and testify in regard to his promotionalprospects, it is not possible to consider reinstating theAppellant to a higher position. I also find that there is nobasis for awarding to the Appellant compensation for loss oflivelihood or for scholarships which he has allegedly beendeprived of, as the Appellant has failed to place any evidencebefore the Labour Tribunal in support of these claims, andthese claims are all very speculative. In view of the decision ofthis Court that the Appellant should be reinstated in servicewith effect from 1st January 2010, there is no question of pay-ing him any gratuity.
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There remains the question of back-wages, and inparticular whether the learned President of the LabourTribunal was in error in regarding the salary drawn by theAppellant on 14th November 1996 as his terminal salaryinstead of the salary he would have drawn as on 6th July 1998on the assumption that he has in fact worked till that date.This is the gist of question (e) on which leave to appeal hasbeen granted, and I have no hesitation in answering it in thenegative and in favour of the Respondent. I find it difficult toagree with the submission of the learned President’s Counselfor the Appellant that back wages should be computed onthe basis of what would have been the terminal salary ofthe Appellant on 6th July 1998, which was the date fromwhich his dismissal from service was confirmed by the Boardof Directors of the Respondent Bureau, since it is necessaryto take a realistic view of the sequence of events materialto this case. If the fictional basis on which this Court gaveeffect to a settlement reached by the parties in SC ApplicationNo. 438/98 (FR) is taken too literally to the extent of deemingthe Appellant to have been in employment till 6th July 1998,the Appellant would not have been able to lawfully maintainthe application he made in the Labour Tribunal prior to thatdate, He cannot have it both ways, and in view of the realityof the termination of his services with effect from 14thNovember 1996, on the basis ofwhich I have already held that theAppellant is entitled to have and maintain his applicationfiled in the Labour Tribunal, back wages payable to theAppellant have to be computed on the basis of the terminalsalary drawn by him on the last day he actually worked forthe Respondent, which was 14th November 1996. This is,for reasons set out more fully above, the material date oftermination in determining the questions of law in thisapplication. Accordingly, I hold that the President ofthe Labour Tribunal did not err in computing backwages payable to the Appellant on the basis of the last
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drawn monthly salary as on 14th November 1996, which wasRs. 7,290 per month.
However, I note that when the Labour Tribunal madeits order dated 8th November 2001, that the Appellant bereinstated in service from 1st January 2002, it also directedthat he be paid back wages computed on the basis of theterminal salary as on 14th November 1996 for a period oftwo years, taking into consideration the fact that in termsof the order of this Court in SC Application No. 438/98 (FR)marked ‘RIO’ the Appellant has been paid wages and all otherconsequential dues from the period between 14th November1996 to 6th July 1998. In view of the decision of this courtthat the Appellant will now have to be reinstated in servicewith effect from Is' January 2010, it is necessary to accord-ingly increase the back wages payable to the Appellant in ajust and equitable manner. Accordingly, I am of the opinionthat in all the circumstances of this case, it would be reason-able to award the Appellant back wages from 15th November1996 to the date of his reinstatement, as directed by thisCourt, namely 1st January 2010, on the terminal monthlysalary of Rs. 7,920.
Conclusion
For the reasons fully set out above, I allow the appeal andvacate the order of the High Court dated 25th March 2004.I affirm the decision of the Labour Tribunal dated 8thNovember 2001, subject to the variation that the Appellantbe reinstated in service as an Engineer (Grade III) in theRespondent Bureau with effect from 1st January 2010, withback wages computed for the period 15th November 1996 to31st December 2009 on his terminal salary of Rs. 7,920 permonth.
To facilitate the expeditious payment of back wages,it is hereby declared that the Appellant is entitled to with-
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draw forthwith the sum of Rs. 285,120 which has beendeposited to the credit of this case in the People’s Bank by theRespondent Bureau on 3rd December 2001, along with allaccrued interest thereon. It is further declared that the saidsum of Rs. 285,120 (excluding interest) and the amountalready paid to the Appellant as “wages and all otherconsequential dues” in terms of the order of this court inSC Application No. 348/98 (FR) dated 16th March 2000 (R10)may be set off against the aggregate amount due as backwages, and the balance sum shall be paid to the Appellant onor before 15th January 2010. I
I award the Appellant Rs. 25,000 as costs of this appeal,which amount too shall be paid by the Respondent to theAppellant on or before 15th January 2010.
DR. BANDARANAYAKB, J. – I agree.
AMARATUNGA, J. – I agree.
Appeal allowed.