023-NLR-NLR-V-79-1-K.-B.-D.-SOMAWATHIE-Appellant-and-BAKSONS-TEXTILE-INDUSTRIES-LTD.-Respondent.pdf
104
SomauxUhie v. Baksons Textile Industrie* Ltd.
1973
Present: Rajaratnam, J.
K.B. D. SOMAWATHIE, Appellant,and
BAKSONS TEXTILE INDUSTRIES LTD., Respondent
S. C. 217/71—Labour Tribunal Case No. B/1330/69
Labour Tribunal—Justifiable termination of a workman's .services—Tribunal may nevertheless, in making a just and equitable order.award compensation in a deserving case—Power of Tribunal toconsider fresh matter not raised at the commencement of theproceedings—Scope—^Industrial Disputes Act (Cap. 131), ss. 33(1) (d), 36 (5).
The services of the applicant, who was admittedly a good worker,were terminated by her employer mainly because she indulged infalse gossip about a man under whose supervision she worked. Whenthe applicant sought relief from a Labour Tribunal, the Presidentfound on the facts that the employer was entitled to discontinuethe services of the applicant on the ground of indiscipline andmisconduct, but he did not direct his mind to the question whetherthe applicant was undeserving of some compensation.
Held ; That even where the termination of the services of a work-man is justified he may in some cases be entitled to relief orredress when a just and equitable order is made under the IndustrialDisputes Act. In the present case the applicant deserved to be paidsome compensation because the cause of the termination of herservices was not a serious act of misconduct.
Held further : That section 36 (5) of the Industrial Disputes Actdoes not prohibit a Labour Tribunal from entertaining anothercircumstance to explain the termination of services, not strictly raisedat the commencement of the proceedings. The term fresh matterrelating to a dispute does not include a further detail that ledto the termination of services, nor does • the term " may permit ”exclude making inquiries into all matters necessary for a just andequitable order.
Case referred to :
United Engineering Workers' Union v. Devanayagam, 69 N.L.R. 289.
RAJARATNAM, J.—Bomcnoathie v. Bakeont Textile Induetriee Ltd.
206
A.PPEAL from an order of a Labour Tribunal.-
N.Satyendra, with Justin Per era, for the applicant-appellant.
D. Tambiaih, for the employer-respondent.
Cur. adv. vult.
January 15, 1973.^ Rajabatnam, J.—
In this appeal, the applicant’s services were terminated byher employer with a month’s salary in lieu of notice on theground of indiscipline and misconduct. At the inquiry the mainissue was whether the applicant carried on a malicious gossipcampaign against one Shah, a weaving master in the employercompany. The applicant was also alleged to have disobeyed theorders of the said Shah under whose supervision she worked.The applicant denied these charges but maintained that Shahpaid undue attention to her which she resented. The Presidentfound it difficult to accept this complaint of the applicant, andthe applicant failed on the facts to corivince the President as tothe truth of her version. It is not possible for this Court toreverse a finding of fact and I do not propose to do so.
On the findings of the President, however, any just andequitable order had to be based on the following facts.
The applicant’s complaint regarding Shah’s undue
attention towards her was unconvincing.
Applicant was a good worker but quarrelsome.
The amorous and romantic tendencies of Shah have
not been proved.
The. findings of the President, however, broadly covered theallegation that the applicant was falsely gossiping about Shahor rather that the applicant gossiped about Shah and did notconvince the President that the stories she circulated were true.On the other hand there was no finding that she disobeyed Shah,although in the accepted circumstances, the relationshipbetween Shah and the applicant were not such that there couldhave been disciplined work on the part of the applicant as faras the work concerned the supervision of Shah.
The President made this observation however “ whatever maybe said of Shah’s evidence, I have hardly any reason to reject
Bakshani’s evidence in this caseI think he had no
choice but to terminate the services of the applicant for the
206
RAJARATNAM, J.—-Somawathie v. Baksons Textile Industries Ltd.
reasons stated by him he was faced with the alter-
native of retaining the services of the weaving master or the
supervisor ” The President’s finding was that in
the circumstances the employer had acted prudently indiscontinuing the services of the applicant.
At the worst, the applicant indulged in the delightful andperfectly feminine pastime of gossiping and in the totality of theevidence at the inquiry having regard also to the findings, I donot think it can be held that Shah was altogether undeservingof all the stories that were getting built round him. Anyhowthe President has not directed his niind to whether the applicantwas undeserving of some compensation. On the findings, certainlyit would have been embarrassing for the employer to have hadthe services of both the applicant and Shah. But if he chose toretain Shah and terminate the services of the applicant underthe circumstances, were the facts that were disclosed and provedsuch that the applicant was undeserving of any relief or redress ?This was the question the President had to answer as requiredby the law and this was the question the President did notanswer either way. In the circumstances of the case, I holdthat the applicant deserved some relief or redress. This wasessentially a case where the failure of the President to answerthis question has led to a legally defective order.
Under the Industrial Disputes Act—
'(a) the applicant is allowed to go to the Tribunal for
redress or relief on the termination of her servicesby the employer,
the President is required to make the necessary
inquiries, and
make a just and equitable order. Of course the inquiries
and the subsequent just and equitable orders arematters for the President. But the just and equitableorder can be made only after the President questionshimself after the necessary inquiries (a) whether theapplicant deserves redress or relief and (b) if so, whatshould be the relief or redress.
The mere inquiry into an allegation of misconduct andinefficiency and the finding whether this allegation is true ornot is not a complete finding as required by the IndustrialDisputes Act. It is my considered view that Labour Tribunalswere never intended to perform the functions of Courts of Law,and make an order whether the applicant is guilty or not of theallegations made against him by the employer. It is not a verdictthat the Law requires from the President but a just and equitable
RAJARATNAM, J.—Somawathie v. Bakscns Textile Industrie* Ltd.207
orderan order that is just and equitable in relation to the
employer and employee and the employer-employed relationship,due consideration being given to discipline and the resources ofthe employer and even the interests of the public may have tobe given thought to. It is for this reason that the LabourTribunals are not confined by rules of evidence. They can adopttheir own procedure, they can act on confessions and thetestimony of accomplices so that they can have a free hand tomake a fair order which may be an order of—
re-instatement with back wages,
re-instatement without back wages,
compensation in lieu of re-instatement,
compensation,
arrears of salary,
an alternative order of re-instatement or compensation,
a refusal of any relief or redress whatsoever.
The relief or redress enumerated above, before it is ordered ordenied must raise the question whether the applicant deservesor not any such relief or redress. In some cases, the failure ofthe President to direct his mind specifically to this questionmay not lead to a legally defective order but in other cases andin my view the present case is one, such a failure has led to alegally defective order. In the case of United EngineeringWorkers’ Union v. Devanayagam, 69 N. L. R. 289 at p- 300, thePrivy Council has in effect held that even where the terminationof the services was justified the workman in some cases willbe entitled to relief or redress.
Learned Counsel for the appellant submitted that the mainallegation against the applicant was made belatedly and referredme to s. 36 (5) of the Industrial Disputes Act which permits theTribunal to entertain any fresh matters which could not havebeen raised at the commencement of the proceedings.
I do not think that thi? provision prohibits a Tribunal whichby law is directed to make all necessary inquiries before it makesa just and equitable order, to entertain another Circumstanceto explain the termination not strictly raised at the commence-ment of the proceedings. The term commencement of theproceedings does not necessarily mean at the stage of thepleadings.
The term fresh matter relating to a dispute does not incluuca further detail that led to the termination nor does the term“ may permit ” exclude making inquiries into all mattersnecessary for a just and equitable order. Therefore this submitsion on behalf of the appellant fails.
208RAJ ARATNAM , J.—Somatpathie v. Backeon* Textile Industries Ltd.
In the present ease where the applicant’s services wereterminated mainly due to her conduct of indulging in gossipwhen admittedly she was a good worker, the President mayhave given her some relief if he had directed his mind to thisquestion. In any case she will not be entitled to any back wagesas on the finding of the President it cannot be said that titleapplicant was altogether not responsible for the situationthat brought the parties to the Tribunal. I do not think in thecircumstances, she should be forced upon the employer. Thereis nothing to prevent the employer however to take her hackon his own terms. This is a matter entirely left to the absolutediscretion of the employer.
If the applicant however does not succeed in getting back heremployment I think it will be just and equitable for her to bepaid some compensation.
I entirely agree with learned Counsel for the respondentemployer that compensation awarded either in lieu ofreinstatement or under s 33 (1) (d) should be compensation forsome loss suffered by the employee at the hands of the employer.Mr. Advocate Tambiah, however, placed his argument veryhigh and submitted that it should be a loss as a result of somewrong done to the workman and in this case as there was nowrong done by the employer, there could be no order forcompensation. In my view an order for compensation could bemade even where the workman loses her job because theemployer in the interests of his business quite rightly had todiscontinue her services, but the cause for termination was notsuch a serious act of misconduct, in this case being mere femalegossip on the part of the applicant and an occupational hazardat its worst as far as Shah was concerned, in a workplace wherethere were females.
Having regard to the short period she has been in employment,in my view compensation in a sum of Rs. 1,500 will bereasonable.
I have fixed the compensation at Rs. 1,500 on the basis thatthe employer when he was acting in the interests of his businesscould have asked the applicant to leave his services on the groundthat she was a source of embarassment for him at the workplaceby circulating stories which she later was unable to substantiateat the Tribunal. Her salary was nearly Rs. 200 per mensem (allinclusive) and the compensation I order is a little over half ayear’s salary, i.e. Rs. 1,500. She will be entitled to the costs ofthe inquiry and a sum of Rs. 105 as the costs of the appeal.
Order varied andappellant awarded compensation.