019-SLLR-SLLR-1993-1-MILLERS-LIMITED-v.-CEYLON-MERCANTILE-INDUSTRIAL-AND-GENERAL-WOPRKERS-UNION-.pdf
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Millers Limited v. Ceylon Mercantile Industrial and General
Workers Un ton (CMU)
179
MILLERS LIMITED
v.CEYLON MERCANTILE INDUSTRIALAND GENERAL WORKERS UNION (CMU)
SUPREME COURT.
BANDARANAYAKE, J.. DHEERARATNE, J. ANDWIJETUNGA, J.
SC APPEAL NO. 38/92.
HCA LT/LA SC 2/92.
HCA/LT 46/91.
LT CASE NO. 1/14/89.
FEBRUARY 16. 1993.
Industrial Law – Unjust termination of workman's services – Misconduct- Deprivation of back wages – Just and equitable order – Necessity to take intoacount the interests of both parties.
Where the workman's conduct was deserving of censure but dismissal wasconsidered too severe a punishment and reinstatement without back wageswas ordered –
the fact that the workman concerned was a labourer and could well havebeen gainfully employed as a manual labourer during the time he was out ofwork with the appellant but placed no evidence that he remained unemployeddespite efforts to find work must be taken into account in considerating suitabilityof awarding back wages. The deprivation of back wages would be justified ifhe placed no evidence in this regard. It was also relevant to this question thatthe workman had falsely and deliberately denied misbehaviour on his part whichresulted in disciplinary proceedings being taken against him.
Per Bandaranayake, J. :
" The Order must be fair by all parties in the interests of discipline".
' When the Provincial High Court stresses ' the spirit of the order 1 the
Court introduces a dimension of vagueness and uncertainty into the proceedings.The Tribunal's decision included both reinstatement and an order not to awardany back wages. It would appear that the High Court is laying too much stresson the fact of reinstatement and therefore the interests only of the workman,whilst not appreciating the reasons for the denial of back wages.
An award is just and equitable only if it takes into consideration the interestsof all the parties".
180
Sri Lanka Law Reports
[1993] 1 Sri LR.
Cases considered as per Judge's annex:
SLTB v. Ceylon Transport Labour Union 1986 1 CALR 309.
Malik Dairy Farms v. Its Workers Union 1968 (2) LLJ 523 (Bombay).
1978 SC Labour Law Journal : vol. 2, 474, 477.
1985 Labour Law Journal : vol. 2, 457.
CA 404/83 – CA Minute of 19.5.83.
United Engineering Workers' Union V. Devanayagam (1967) 72 CLW 35.
Ceylon Tea Plantations Co. Ltd. v. Ceylon Estates Staff Union(S.C. 211/72 ; S.C.M. 15/5/74).
Ceylon Transport Board v. Ceylon Transport Board Workers' Union(1969) 71 NLR 42.
Uplands Tea Estates Ltd. v. Ceylon Workers' Congress (1970) 72NLR 68.
Associated Newspapers of Ceylon Ltd. v. Jayasinghe [1982] 2 SLR 595.APPEAL from order of the High Court in appeal.
M. A. Bastiansz with Nigel Hatch for respondent-appellant.
Shirley M. Fernando with Ms. H. Fernando for the applicant-respondent.
Cur. adv. vult.
May 13, 1993.
BANDARANAYAKE, J.
Leave to appeal to the Supreme Court has been granted by the HighCourt of the Western Province in terms of Act No. 19 of 1990.
The applicant-union on behalf of the workman sought relieffrom the Labour Tribunal alleging that the workman's services hadbeen unjustly terminated with effect from 10.9.88 and prayed forreinstatement with back wages. The respondent-employer resistedthe application stating dismissal had been on disciplinary grounds aftera domestic enquiry and was justified.
The facts were that the workman who was a labourer and beenin employment for 2 years with the appellant had sought to removea large thick sheet of hardboard belonging to the respondent-companywithout permission by placing the article in a company vehicle whichwas about to take employees who had worked overtime unloadingcontainers back to their houses that night. On being cautioned bythe driver of the vehicle that he should obtain prior permission toremove Company property, the workman had gone inside the office
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Millers Limited v. Ceylon Mercantile Industrial and General
Workers Union (CMU) (Bandaranayake, J.)
181
and sought permission from the Manager to remove the hardboardbut permission was refused. The workman had then in a fit of temperkicked the hardboard and broken it into two and thrown it out of thevehicle and banged the door of the vehicle so hard that the lockwas damaged ; this was in the presence of several other workmen.This was the misconduct complained of by the employer. Theworkman had at first sought to deny that the hardboard belongedto the employer Company ; later whilst admitting that he soughtpermission to remove the hardboard, denied damaging the door lockand also said that he kept the hardboard outside the vehicle. TheTribunal has chosen not to believe the workman and has acceptedthe employer's witnesses narration of events. This rejection of theworkman's version is important for the reason that the workman byhis evidence had sought to deny any misconduct which necessitateddisciplinary measures being taken against him. The tribunal acceptedthe evidence led on behalf of the employer and held the workmanguilty of the behaviour alleged. The Tribunal however withoutdismissing the application ordered reinstatement without breakin service but without back wages. Appellant's Counsel submitted thathere was a case of an outburst of extreme resentment against adecision of the employer in the presence of several other workmenwhich if not censured could lead to chaos in the work place. Beingperhaps a borderline case, a case where the conduct of the workmanmay have been regarded as reprehensible and intolerable warrantingdismissal, the Tribunal had taken a more lenient view and consideringthe circumstances where previous bad behavior had not beensatisfactorily proved though alleged, decided that termination wastoo harsh a punishment for his behaviour and in this senseunjustified and instead ordered reinstatement with effect from 5.3.91without a break in service but without back wages. This order hadbeen complied with.
The applicant next took an appeal to the Provincial High Courtseeking to have the order of the Tribunal varied. The only groundurged in appeal by Counsel had been that the President had erredin refusing back wages to the workman. The loss in income of theworkman from 10.9.88 to 5.3.91 was in excess of Rs. 34,000 whichit was urged was inequitable.
182
Sri Lanka Law Reports
[1993] 1 Sri L.R.
The judgment of the High Court in appeal observed as follows:
"quote"" The learned President has not considered whether it is
reasonable and/or equitable to deprive the applicant of the entiretyof the back wages particularly in the light of the amount and theperiod concerned. No reason has been advanced for deprivingthe grant of back wages. This would have been a relevant consid-eration in view of the finding…. that termination of service was tooharsh a punishment. In keeping with the spirit of the order of thelearned President it will not be in the interests of equity to deprivethe workman of the entirety of the back wages." The High Court variedthe Tribunal's order to the extent of awarding back wages for 18months at a monthly wage of Rs. 1,187/50 = Rs. 21,375. Subjectto this variation the appeal was dismissed without costs.
This appeal is from that judgment. It was submitted on behalf ofthe employer respondent-appellant that the Labour Court had indeedapproached the evidence placed before it correctly and consideredall relevant matters in coming to its decision. The Tribunal had upona consideration of the evidence come to a finding in the first instancethat the workman was guilty of improper behaviour when permissionto remove the hardboard was refused. This finding has not beencanvassed in appeal. Thereafter the Tribunal had to decide whetherin the circumstances, dismissal was fair or justified. The Tribunal hasapplied its mind to this question and decided that it was excessiveand therefore awarded reinstatement. This the Tribunal could do andthe employer has not appealed against that order. Thereafter theTribunal had obviously given its mind to the question of back wageswhen it decided against the award of back wages and deliberatelysaid so. Counsel submitted that this decision was within the Tribunal'sdiscretion in the situation where dismissal in the first instance hadbeen taken as a disciplinary measure. There can be no doubt thatthe Tribunal felt that the interests of discipline required that someform of disapproval of or punishment for the workman's misconductbe shown and thus in fairness to the employer in the face of provedindiscipline decided against the award of back wages. Furthermorethe workman although he gave evidence had not stated that heremained unemployed since 10.9.88. Thus it was submitted that theTribunal had abundant reason to make the order it did. Counsel forthe applicant-respondent submitted that the incident of 9.9.88 wasof a trivial nature and therefore termination was unjustified andconsequently the deprivation of Rs. 35,000 was unjustified and thatthe High Court therefore restored some wages.
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Millers Limited v. Ceylon Mercantile Industrial and General
Workers Union (CMU) (Bandaranayake, J.)
183
The question before us is whether the Labour Tribunal Presidentwas justified in depriving the workman of back wages uponreinstatement. A Tribunal has to determine this upon the facts andcircumstances of each case. In this instance upon the evidence thePresident could have concluded that the workman's conduct wasdeserving of censure although dismissal was too severe.
The workman has given his age as 22 years when he testifiedbefore the Tribunal in May 1990. Thus, he was 20 years of age whenhis services were terminated in September 1988. His employmenthad been that of a manual labourer. Thus it would appear that hecould well have been gainfully employed at least as manual labourerduring the time he was out of work with the appellant.
Although the workman testified he has placed no evidence thathe remained unemployed despite efforts to find work. A Tribunal isentitled to take his failure to do so into account in deciding thequestion of back wages. There was also the conduct of the workmanbefore the Tribunal of falsely and deliberately denying any misbe-haviour on 9.9.88. We are of the opinion that there was material beforethe Tribunal upon which the President, in the exercise of his discretionin making an award which was just and fair to both employee andemployer, could have fairly refused to award any back wages to thisworkman. The Order must be fair by all parties in the interests ofdiscipline. The finding of the High Court that the order of the Tribunalwas inequitable is unacceptable.
When the Provincial High Court stresses "the spirit of the
order" the Court introduces a dimension of vagueness and
uncertainty into the proceedings. The Tribunal's decision includedboth reinstatement and an order not to award any back wages.It would appear that the High Court is laying too much stresson the fact of reinstatement and therefore the interests only of theworkman whilst not appreciating the reasons for the denial of backwages.
An award is just and equitable only if it takes into considerationthe interests of all the parties.
The appeal is allowed.
184
Sri Lanka Law Reports
[1993] 1 Sri L Ft.
The judgment of the Provincial High Court is set aside and theOrder of the Labour Tribunal is restored. No costs.
DHEERARATNE, J. – I agree.
WIJETUNGA, J. – I agree.
Appeal allowed.