022-SLLR-SLLR-2010-V-2-KOTAGALA-PLANTATIOPNS-LTD.-AND-ANOTHER-v.-CEYLON-PLANTERS-SOCIETY.pdf
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Kotagala Plantations Ltd., And Another V. Ceylon Planters Society
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KOTAGALA PLANTATIONS LTD., AND ANOTHER V.CEYLON PLANTERS SOCIETYSUPREME COURTJ.A.N. DE SILVA, CJ.SRIPAVAN, J., ANDEKANAYAKE, J.
S.C. APPEAL NO. 144/2009W.P./HCCA/KAL/18/2008LT/35/MG/102/2005JULY 5th, 2010
Industrial Dispute – a dispute between an employer and workman/workmen – Termination of Services of a workman • an appeal liesfrom an order of the Labour Tribunal to the High Court on a ques-tion of law.
After trial the Labour Tribunal held that the termination of theservices of the workman was justified and dismissed the application.The Applicant- Appellant – Respondent appealed against the order of theLabour Tribunal to the High Court. The High Court allowed the appealand granted compensation to the workman. The Respondent -Respondent – Appellants made an application for special leave to appealto the Supreme Court and leave was granted on the following questionsof law.
Was the judgment of the High Court just and equitable?
Was the judgment of the High Court contrary to law?
Did the High Court err in law by not evaluating the evidence andthe award of the Labour Tribunal?
Whether the High Court erred in law computing the compensationpayable to the said employee?
Held
The learned Judge of the High Court has failed to consider the factthat the question of arriving at a decision on the primary facts ofa case rests with the original Tribunal.
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It is not for an Appellate Court to view the evidence and come toa different conclusion regarding the facts of the case, unless thefinding on the facts by the Tribunal was against the weight of theevidence.
An allegation involving misconduct or moral turpitude is a de-termining factor in proceeding before a Labour Tribunal in orderto decide whether the workman is a fit and proper person to becontinued in employment in an establishment.
If the conduct of the workman had induced the termination,he cannot in justice and equity claim compensation for loss ofcareer.
Per J. A. N. De Silva, C.J., –
“The jurisdiction of the Labour Tribunal is intended to produce ina reasonable measure a sense of security in a workman so longas he performs his duties efficiently, faithfully, and for the better-ment of his establishment and not otherwise”.
Per J. A. N. De Silva, CJ., –
“Judicial discretion plays an indispensable part in out legal system.However, such discretion must be exercised fairly and reasonablewithin the four comers of the Industrial Disputes Act. Though ajust and equitable order must be fair by the parties to anapplication, it never means the interests of the workman alone besafeguarded.”
APPEAL against the Judgment of the High Court to the Supreme Court
with leave been granted.
Cases referred to :-
(1) Caledonian Estates Ltd. v. Hilllman – 79 NLR 421
Uditha Egalahewa with Gihan Galabodage for the Respondent –
Respondent – Appellants.
Gamini Perera for the Applicant – Appellant – Respondent.
Cur.adv.vu.lt
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Kotagala Plantations Ltd., And Another V. Ceylon Planters Society
(J. A. N. De Silva, CJ.)
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December 15th 2010J. A. N. DE SILVA, CJ.
The Applicant-Appellant-Respondent made an applicationon behalf of L.P.D. Seneviratne being a Planter, to the LabourTribunal of Matugame alleging that the services of the saidSeneviratne had been terminated wrongfully and unjustifi-ably and prayed that he be reinstated with back wages or inthe alternative be granted compensation in lieu of reinstate-ment.
The 1st Respondent-Respondent-Appellant filed answerstating that the services of the said Seneviratne wereterminated after he was found guilty at a domestic inquiryheld against him for misconduct and prayed that the applica-tion be dismissed.
The 2nd Respondent-Respondent-Appellant filed answerstating that it was the Managing Agent of the 1st Respondent-Respondent-Appellant and that there was no contract ofemployment between the said Seneviratne and the 2ndRespondent-Respondent-Appellant.
After trial the Labour Tribunal held that the termina-tion of the services of the said Seneviratne was justified anddismissed the application. The Applicant-Appellant-Respon-dent appealed against the said order of dismissal to theprovincial High court of Kalutara and the said High Courtallowed the appeal and granted compensation to the saidSeneviratne in a sum of Rs. 840,000/-.
The Respondent-Respondent-Appellants made an appli-cation for special Leave to Appeal to the Supreme Court andleave was granted on the following question of law:
Was the Judgment of the Honorable Judge of the High
Court just and equitable?
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Was the judgment of the Honorable Judge of the HighCourt contrary to law?
Did the Honorable Judge of the High Court err in law bynot evaluating the evidence and the award of the LabourTribunal?
Whether the Honorable, Judge of the High Court erred inlaw in computing the compensation payable to the saidemployee?
At the inquiry before the Labour Tribunal, since thetermination of the services of the workman was admitted bythe Employer evidence was led by the Employer regardingthe act of misconduct of the workman and also his servicerecord. The President of the Labour Tribunal having consid-ered the evidence led regarding the act of misconduct throughwitnesses Chaminda Priya Nandasiri and Nuwan ThusahraJayatunge, who were Assistant Field Officers accepted theirevidence as regards the act of misconduct which was oneof the charges against the workman for assaulting the FieldOfficer, Jayakody in the presence of the two witnesses whotestified before the Labour Tribunal. The President of theLabour Tribunal had given careful consideration to theevidence of the said two witnesses and held that the Employerhad proved the fact of assault on Jayakody by the workman.The President had also considered the evidence of theworkman regarding the said incident where the work-man had admitted his presence and the exchange of wordsbetween him and Jayakody. In those circumstances thePresident of the Labour Tribunal was in the best position toassess the credibility of the said witnesses in relation to the saidincident especially in the light of the fact that the workmanhad not expressly denied the act of assaulting Jayakody.
On behalf of the workman it had been submitted thatthe victim of the assault, Jayakody was not brought in as a
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witness to establish the assault. It transpired in the courseof the evidence before the Tribunal that Jayakody and threeothers had also been dismissed for having assaulted theworkman in this case soon after the assault by the work-man on Jayakody had taken place. The President of theLabour Tribunal considered this position too in arriving at hisconclusion.
The President of the Labour Tribunal had considered thedocuments and evidence relating to the past record of serviceof the workman in arriving at the conclusion that the work-man was not entitled to any relief. Further the president alsoadverted to the fact that the workman while being employedunder the Employer had engaged himself in doing some workoutside his realm of duties by managing another property forhis relations which was established by the production of thedocuments relating to the lease of land which was signed byhim, which fact was not seriously challenged on behalf of theworkman.
The President of the Labour Tribunal thus arrived ata finding that the acts of misconduct of the workman wereestablished by the Employer before the Tribunal and heldthat the workman was not entitled to any relief on a consider-ation of the totality of the evidence placed before the Tribunalwhich included the facts relating to his past conduct and thedoing of work outside the scope of his duties for others.
An appeal lies from an order of a Labour Tribunal onlyon question of law. A finding on facts by the Labour Tribunalis not disturbed in appeal by an Appellate Court unless thedecision reached by the tribunal can be considered to beperverse. It has been well established that for an order to beperverse the finding must be inconsistent with the evidenceled or that the finding could not be supported by the evidenceled. I Vide Caledonian Estates Ltd. v. Hillman111.
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Thus, the question before the High Court was to seewhether the order of the President of the Labour Tribunalwas perverse. A perusal of the judgment shows that the HighCourt had acted on a misconception that the Labour Tribunalhad based its decision on the past record of the work-man which the high court considers to be irrelevant andextraneous.
The learned Judge of the High Court has failed toconsider the fact that the question of arriving at a decision onthe primary facts of a case rests with the original Tribunal.It is not for an Appellate Court to view the evidence andcome to a different conclusion regarding the facts of the caseunless the finding on the facts by the Tribunal was againstthe weight of the evidence. In fact on a reading of the entiretyof the judgment of the High Court, it would appear that theHigh Court Judge has misdirected himself.
The learned Judge of the High Court formed the mis-conception that the Tribunal had based the justifiability ofterminating the services of the workman on his past recordwhich the learned judge considered as matters relating toinefficiency. However he failed to consider the manner inwhich the Tribunal had evaluated the evidence that wasplaced before the Tribunal. The High Court having steppedout of the path went onto hold that the Tribunal was wrong inholding that the termination was justifiable and held that thetermination of the services of the workman was unjustified.
It is noted that the High Court did not consider the factthat the workman was an Assistant Manager and should setan example to his subordinates. The workman having hadan altercation with the Field Officer Jayakody on the fieldhad gone to the extent of assaulting him in the presence ofother workers of the Estate. This is a high handed action on
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the part of an Executive Officer which cannot be condonedby the fact of the said workman being himself subjected toan attack by the said Field officer Jayakody and three otherssubsequently. The Employer had also taken steps to termi-nate the services of the said employees who had attacked theworkman.
The Employer could not turn a blind eye on the act ofmisconduct of the workman when he had complained of anattack on him by other employees of the Estate. All thosewho had acted in that manner which was subversive anddetrimental to the maintaining of discipline on the estate hadbeen dealt with by the employer in the same way.
In dealing with the evidence of the two Assistant FieldOfficers who gave evidence regarding the assault on Jayakodyby the workman Seneviratne, the learned High Court Judgehas considered their evidence but has stated as to whethersuch evidence was acceptable or not. In effect he hasstated that both witnesses speak to the same facts whichwould thus be a corroboration of the fact that the workmanSeneviratne had assaulted Jayakody and therefore theconclusion reached by the President of the Labour Tribunalthat the act of misconduct committed by the workmanSeneviratne had been established cannot be faulted.
The learned High Court Judge in his judgment statesthat the Employer has acted in breach of the conditions of its‘sales agreement’ apparently meaning the terms and condi-tions of the ‘contract of employment’ by stating that there is aduty cast on the employer to provide a safe place of work forthe employee and that in the instant case the employer hadnot done so. He in fact goes to the extent of stating that theemployer by failing to safeguard the employees had discrimi-nated by allowing subordinates to proceed to the superior’s
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(the workman in the present case) office and attack him whileon duty and that the management had not taken any stepsagainst the violations committed by Jayakody and otherworkers. There was material before the Tribunal to showthat the employer had terminated the services of Jayakodyand three others regarding the assaulting of the workmanSeneviratne. Thus this court does not see any substancein the observations made by the learned judge of the HighCourt.
Further, the Learned High Court Judge in his judgmentstated that inefficiency is not relevant as the termination ofthe workman had been based on assault and nothing elseand that the Labour Tribunal relied on inefficiency which isnot the issue that resulted in the termination of the servicesof the workman. He has stated that the employer had nottaken any steps regarding the inefficiency of the workman andtherefore the documents R8 to R38 which contain mattersregarding the efficiency and shortcomming of the workmanare not acceptable documents as they were not challengedby way of an inquiry. This would be another clear misdi-rection on the part of the learned Judge when consideringmatters relating to the relationship between the employ-er and the workman. Evidence regarding past conduct of aworkman is relevant to show how a workman has performedduring his period of employment, his attitude towards, work,efficiency, conduct, discipline etc, as these contributingfactors influence an employer when dealing with promo-tions, increments, granting of benefits to a workman. Mattersrelating to misconduct and inefficiency are not condoned justbecause no immediate action is taken against an employeewhen such matters occurred.
An allegation involving misconduct or moral turpitude isa determining factor in proceedings before a Labour Tribunal
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in order to decide whether the workman is a fit and properperson to be continued in employment in an establishment. Ifthe conduct of the workman had induced the termination, hecannot in justice and equity claim compensation for loss ofcareer. On the other hand, if the termination was not withinthe control of a workman but solely by the act and will of anemployer, a Tribunal exercising just and equitable jurisdic-tion is well entitled to grant relief in the nature of compensa-tion to a discharged workman. The jurisdiction of the LabourTribunal is intended to produce in a reasonable measure asense of security in a workman so long as he performs hisduties efficiently, faithfully and for the betterment of hisestablishment and not otherwise. No workman should bepermitted to suffer for no fault of his, but on unwanted,dishonest, troublesome workman maybe discharged withoutcompensation for loss of his employment. The workman inthose circumstance has to blame himself for the unpleasantand embarrassing situation in which he finds himself.
In the instant case, it is noted that acts of misconductpreviously committed by the workman include, unsatisfactoryattendants, purchase of diesel in an unauthorized mannerfor personal use, leaving the estate without obtaining leave,failure to report for duty once the period of leave expires,acting in breach of the terms and conditions of employmentand managing a tea plantation that does not belong to theApplicant-Appellant-Respondent etc.
This Court is at a lost to understand the legal basis uponwhich the High Court granted compensation to the workman.Judicial discretion plays an indispensable part in our legalsystem. However, such discretion must be exercised fairlyand reasonably within the four corners of the IndustrialDisputes Act. Though a just and equitable order must be
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fair by the parties to an application, it never means theinterests of the workman alone be safeguarded. Thedesirability of giving reasons for decisions so widelyrecognized by appellate Courts, that a failure to do so amountsto a failure to do justice especially where the concepts ofsocial security and social justice form an integral part ofIndustrial Law. It is fundamental importance that reasonsshould be given for decisions and decisions should be basedon evidence of probative value.
Accordingly, I set aside the Order of the learned HighCourt Judge dated 6th August 2009 and affirm the Ordermade by the President of the Labour Tribunal dated 4thDecember, 2008. The appeal is thus allowed, without costs.
SRIPAVAN J. – I agreeEKANAYAKE J. – I agree
appeal allowed.