021-NLR-NLR-V-76-LEWIS-BROWN-CO.-LTD.-Appellant-and-P.-N.-C.-PERIYAPPERUMA-Respondent.pdf
Lewis Brown & Go., Ltd. v. Periyapperuma
115
1971Present : H. N. G. Fernando, C.J.
XiEWIS BROWN & CO., LTD., Appellant, and P. N. C. PERIYAP?PERUMA, Respondent
S.G. 35171—In the matter of an Application under Sect ion 31 D of theIndustrial Disputes Act No. 43 of 1950 in Labour TribunalCase 14199/70
Labour Tribunal—Failure to consider all relevant evidence—Question of law—Industrial Disputes Act {Cap. 131), s. 31D—“ Just and equitable order
The order of a Labour Tribunal at an inquiry held by it under the IndustrialDisputes Act is not a just and equitable order if it is made without examinationand consideration of all relevant evidence adduced at the inquiry.
(1321) 1 K. B. 49.
110 H. N. G. FERNANDO, C.J.—Lewis Brown & Go., Ltd. v. Periyapperuma
A.PPEAL from an order of a Labour Tribunal.
N. Satyendra, with V. Jegasothy and 0. Dayasiri, for the employer-appellant.
Nimal Senanayake, with R. Weerakoon and Nihal Singaravelu, for theapplicant-respondent.
Cur. adv. vult.
August 2, 1971. H; N. G. Fernando, C.J.—
This appeal is by an employer against the order of a Labour Tribunalordering the re-instatement with back wages of an employee who hadbeen dismissed from his employment in 1964. The determination of thedispute has unfortunately been long delayed, owing to judgments of thisCourt holding appointments to the office of Presidents of Labour Tribunalsto be in conflict with the Constitution, and the reversal of those judgmentsby the Privy Council. I regret that there has to be further delay byreason of the conclusion I have reached in this appeal that the employee’sapplication for relief has to be inquired into afresh.
Since there has to be a fresh inquiry, it is necessary as far as possibleto avoid expressing my views as to the facts of tho case.
The ground on which the employer claimed to have dismissed theemployee, (to whom I will refer as “ the applicant ”), was that the latterhad committed certain acts of misconduct on 3rd October 1964 and on16th October 1964, during a period when there had been a strike of the-firm’s employees.
Three witnesses called by the employer gave evidence that the applicantcommitted certain acts of misconduct on 3rd October 1964, and theapplicant gave evidence denying that he committed such acts. TheTribunal in its order has summarised the evidence of the three witnessescalled by the employer, and has recorded also the fact that the applicantdenied “ the charges ”. But the Tribunal did not proceed to consider theevidence of these four witnesses, and did not reach any finding as to thetruth of the evidence of any of these four witnesses. Instead theconclusion that “ the applicant is not guilty of this charge ” (i.e., relatingto the alleged incidents of 3rd October 1964) was reached on aconsideration of certain other matters, to which I will now refer.
Police Constable Sirisena, who had been on duty outside the employer'spremises because of the prevailing strike, was called as a witness for theapplicant. Sirisena testified generally to certain incidents which tookplace outside the employer’s premises, when the strikers hooted andjeered at one T. L. Peiris, to an exchange of abuse between Peiris and thestrikers, and to some sort of attack by the strikers on Peiris’ car. Infact, the evidence of the employers’ witnesses was that the applicant tookan active part in these incidents. Sirisena, however, stated more than
H. N. G. FERNANDO, 0.3.—Lewis 'Brown <b (Jo., Ltd. v. Periyappemma 117
once that he did not see the applicant participating in the incidents. Hesaid also that he had not previously known the applicant, and thereforecould not say, one way or the other, whether or not the applicant hadparticipated in the incidents. In brief, Sirisena’s position was that hehad not been able to observe every stage of these incidents and had notseen the applicant participating in them. ..
That being so, the President of the Tribunal misunderstood the•purport of Sirisena’s evidence in thinking that Sirisena “ denied completelythat (the applicant) either kicked or banged at the car of Peiris ”. Tosay “ I did not see X doing something ” is by no means equivalent tosaying “ I am certain that X did not do anything ”.
This misunderstanding on the part of the President was particularlygrave, because it was his principal reason for disregarding the evidencethat the applicant participated in the alleged incidents.
The Tribunal also made the following observation in the order :—
" The witnesses (for the employer) were of equal rank or were holding
similar positions as Executives in the FirmAs the
strike was mainly directed against the action of the Management ofLewis Brown & Co. Ltd., protesting against the handing over of itsEstates to Mackwoods Ltd., I am of opinion that it is not safe to acceptthe evidence of these executives on a charge of moral turpitude mainlybecause none of the Executives who were asked to he eye-witnesses tothe incident was produced. ”
This last comment referred to the failure to call two officers,Messrs Mortimer and Ernst. But the President overlooked the evidencethat Mortimer was not in Ceylon at the time of the inquiry. As to Ernst,the evidence which he had given at a domestic inquiry was marked inthese proceedings; but the President did not consider whether theomission to call Ernst was remedied in this way. Thus it appears that themain reason why it was thought unsafe to accept the evidence of thethree witnesses was scarcely justifiable.
In any event it seems to me that when a witness, whoever he may be,gives evidence that certain incidents occurred, a Tribunal cannot relieveitself of its duty to decide whether or not the alleged incidents did occur.A general assumption that Executives are likely to give false evidence onbehalf of an employer, or else that strikers are likely to give false evidenceon behalf of an employee, has the result that parties to a dispute aredenied their right to a determination based upon the evidence tendered tothe Tribunal."
The fact that the Tribunal decided to disregard the evidence adducedby the employer, on the grounds to which I have referred, had theconsequence that the Tribunal did not examine that evidence. Nor didthe President examine and consider the evidence given by the applicanthimself, which, in the submission of counsel, was contradicted by the
118
Azhar v. Fernando
evidence of Constable Sirisena. The only evidence which the Tribunaltook into account was that of Constable Sirisena, who did not deny thatthe applicant committed the alleged acts.
The order of a Tribunal is not a just and equitable order, if it is madewithout examination and consideration of all relevant evidence adducedat the inquiry ; there was no such examination and consideration in theinstant case of the evidence relevant to the alleged incidents of 3rdOctober 1964.
The order of the Tribunal is accordingly quashed, and a fresh inquirywill be held by a Tribunal consisting of a different President. But at thefresh inquiry it will not be open to the employer to rely on any allegedmisconduct of this applicant on 16th October 1964.
The applicant must pay to the employer the costs of this appeal whichare fixed at Rs. 210.
Order quashed.