027-SLLR-SLLR-1998-V-3-LANKA-SYNTHETIC-FIBRE-COMPANY-v.-PERERA.pdf
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Lanka Synthetic Fibre Company Ltd. v. Perera
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LANKA SYNTHETIC FIBRE COMPANY LTD.
v.PERERA
SUPREME COURTDHEERARATNE, J.,WADUGODAPITIYA, J. ANDBANDARANAYAKE, J.
S.C. APPEAL NO. 92/97H.C.A. (LT) CASE NO. 1243/96LT CASE NO. 8/194/93AND LT CASE NO. 8/195/93MAY 18, 1998
Industrial Disputes – Termination of Services – Use of abusive language towardssuperiors – Labour Tribunal decision – Appeal to the High Court.
The respondent workman was an assistant security officer employed by theappellant company. The workman's services were terminated as he had been foundguilty of misconduct. The charges against the workman were (a) (1) he permitteda labourer to remove 7 cardboard boxes belongings to the company (b) he abusedand arrested a security officer who was a superior officer for questioning thelabourer at the gate regarding the cardboard boxes. After inquiry, the LabourTribunal dismissed the workman's application for relief. In appeal the High Courtwas of the view that although there had been a “dialogue'1 between the workmanand his superior, it was an incident which should not have been taken seriouslyand ordered reinstatement with back wages.
Held:
The use of abusive languages towards a superior officer was a serious misconduct.Hence the finding of the High Court is unacceptable.
APPEAL from the judgment of the Provincial High Court.
S. M. Fernando P.C, with K. Perera for appellant.
A S. M. Perera P.C, with Athula Perera for respondent.
Cur. adv. vult.
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f19981 3 Sri L ft
July 27. 1998.
SHIRANI A. BANDARANAYAKE, J.
The applicant-appellant-respondent C. S. L P. Perera (workman Perera)filed an application (No. 8/194/93) in the Labour Tribunal in Colombocomplaining that his services were unjustly terminated by the appellantby letter dated 22.02.1993. At the time of the termination of hisservices, he was employed as a Security Assistant in the appellantcompany. Another workman J. A. Ranasinghe (workman Ranasinghe)employed by the same company also filed an application (No. 8/195/93) in the Labour Tribunal, Colombo, at the same time, complainingthat his services too were terminated by the appellant by another letterdated 22.02.1993. At the time of his termination of his services thesaid workman Ranasinghe was employed as a general labourer.According to the answers filed on behalf of the respondent-respondent-petitioner (the appellant company), services of the workman Pererawere terminated as he was found guilty of the charges contained inthe show cause letter dated 28.01.1993 (R5). The charges were asfollows:
On 12.12.1992, when Perera was on duty, he had permitteda labourer by the name of J. A. Ranasinghe (the applicant in8/195/93) to remove 7 cardboard boxes from the premises ofthe petitioner company after he had been informed by M. D.K. Goonatillaka, another Security Officer, that he should not doso;
In connection with the above incident, for having abused andassaulted a Security Officer by the name of T. Tissera;
For neglecting his duties and for having brought into disreputethe petitioner company.
Four persons gave evidence before the Labour Tribunal on behalfof the petitioner company. M. D. K. Goonatillaka, a Security Assistantwho was in a lower grade than workman Perera, and workman Pererawere on duty at the second barrier near the gate on 12.12.1992 around
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4.30 pm. Witness Goonatillaka was required to collect the keys ofthe various stores and cupboards which were brought to him whenthe supervisors were leaving the workplace. Workman Perera wasrequired to check the workers and prevent them from taking anyproperty belonging to the petitioner company. Employees had first topass the second barrier.which was about 100 yards away from thefirst, in order to leave the premises of the petitioner company. Whenwitness Goonatillaka and workman Perera were on duty at the secondbarrier on 12.12.1992, workman Ranasinghe had-come there carrying7 new cardboard boxes which were pressed flat. This was propertybelonging to the petitioner company. According to Goonatillaka, hehad asked workman Ranasinghe whether he had a gate pass toremove the cardboard boxes. Workman Perera had then intervenedand had permitted to workman Ranasinghe to take the said boxesaway stating that he had already given him permission to do so.Workman Ranasinghe then had carried them to the first barrier.Witness M. A. H. cooray of the Fire Protection Division of the appellantcompany gave evidence next and produced the statement of T. Tissera(recorded by him) who was employed as a Security Officer at thetime of this incident. Tissera had left the services of the petitionercompany at the time of the inquiry before the Labour Tribunal. In hisstatement (R3), Tissera stated that when workman Ranasinghe broughtseven new cardboard boxes to the main gate he questioned him; thenworkman Perera came to the main gate from the 2nd barrier, abusedhim using filthy language (R3B) and assaulted him on the face (R3A).Tissera in his evidence before the Labour Tribunal confirmed that R3is a truthful record of what occurred on 12.12.1992.
Workman Perera giving evidence on his own behalf denied thathe assaulted Tissera, who was his Superior Officer. He claimed thatthere was an altercation between him and Atukorale, another SecurityOfficer, over the removal of 7 cardboard boxes by workman Ranasinghe.In the course of that altercation he pushed Atukorale and Atukorale'shand struck Tissera's face.
The learned President of the Labour Tribunal agreeing with theAppellant held considering the responsible position held by workmanPerera as a Security Assistant and the gravity of the offences, the
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[1998] 3 Sri LB.
termination of workman Perera's services was justified and accordinglymade order dismissing the application. In the separate application filedby workman Ranasinghe, the learned President of the Labour Tribunalheld that the termination of said Ranasinghe's services was alsojustified but ordered his reinstatement without back wages, oncompassionate grounds as he was a mere labourer. Workman Perera,took up the position that the punishment of dismissal was too harsha punishment in respect of the charges against him and he appealedto the provincial High Court, Colombo. The provincial High Court setaside the order of the Labour Tribunal and directed that workmanPerera beinstated with back wages and other benefits which weredenied to his during the period of his non employment. The provincialHigh Court was of the view that the finding of the Lbour Tribunal thatworkman Perera was gulity of the charges levelled against him wascontrary to the evidence led at the inquiry. Further, the High Courtwas of the view that there was no mutual corroboration of the testimonyof witnesses who gave evidence against workman Perera. The learnedHigh Court Judge was of the view that the learned President of theLabour Tribunal has blown out of proportion a small incident.
This appeal is from the judgment of the provincial High Court,Colombo and special leave to appeal was granted by the SupremeCourt on the following questions:
whether the High Court erred in law in setting aside the findingsof fact of the Labour Tribunal;
in any event, whether the High Court erred in law in orderingreinstatement with full back wages.
It was submitted on behalf of the appellant company that thelearned President of the Labour Tribunal had given careful consid-eration to the evidence led at the inquiry and reached a finding offact that workman Perera was guilty of all the charges. LearnedPresident of the Labour Tribunal had taken into consideration thenature of duties workman Perera had to carry out and on that basis,he had come to the conclusion that workman Perera was holding a
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responsible position in his place of work. Moreover learned Presidentof the Labour Tribunal had given careful consideration to the altercationworkman Perera had with Gunatillaka, when Gunatillaka tried to preventworkman Perera, from taking away the cardboard boxes without apermit. Considering the foul language alleged to have been used byworkman Perera and the circumstances which led to the altercation,it is clear that learned President of the Labour Tribunal quite rightlytook a serious view of the episode.
Learned counsel for workman Perera submitted that the boxes inquestion were not new boxes but old ones and that they were notmarked at the Labour Tribunal. He conceded that there was analtercation but his position was that Atukorale was responsiblefor that. Further he submitted that workman Perera, did neither assaultnor quarrel with anyone. Therefore he submitted that there was noquestion of workman Perera being abusive towards his superior officer.Learned counsel further submitted that as there was no positive findingby the President of the Labour Tribunal that workman Perera hadeither assaulted or was abusive; there was no need therefore tointerfere with the decision of the provincial High Court of Colombo.
Learned Judge of the provincial High Court, Colombo, in hisjudgment stated that learned President of the Labour Tribunal hasfailed to evaluate the evidence placed before him. If not, he statedthat learned President has erred in evaluating the evidence. Accord-ingly he was of the view that 'although it seems that there was adialogue between the workman and his superior officer over somecardboard boxes which were not that valuable, it was not an incidentwhich should have been taken seriously' (emphasis added). Further-more he was of the view that as this incident occurred inside thepremises of the company there was no possibility of taking these itemsoutside and therefore a small incident had been grossly exaggeratedby the respondent company.
B. R. Ghaiye in Misconduct in Employment discusses the use ofabusive language towards the superior and states that it is a seriousmisconduct. In his words:
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"The use of abusive language towards the superiors is a mis-conduct because it creates such a situation in which it becomesimpossible to maintain proper discipline in an establishment . . .Whatever may be the reason of the use of abusive words, it isa recognised misconduct and unlike use of defamatory words it hasno exceptions. It means that the use of abusive language will bemisconduct irrespective of the circumstances in which it has beenuttered" (p 560).
Learned High Court Judge has considered the fact that there hasbeen an exchange of words but he was of the view that it was justa' dialogue' between the workman and his superior. The evidenceplaced before the Labour Tribunal on the other hand shows thevituperative nature of that 'dialogue' as most of the words used areclearly abusive. Therefore the finding of the High Court that the orderof the Labour Tribunal was erroneous is unacceptable.
For the above reasons the appeal is allowed, the judgment of theHigh Court, Colombo, is set aside and the order of the Labour Tribunalis affirmed. There will be no costs.
DHEERARATNE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Appeal allowed.