Your duties will be as follows:
Rosita and Charing Cross Divisions
Lochiel Division
Wooton Factory Division
Rosita and Charing Cross Divisions
Lochiel Division
Wooton Factory Division
Sri Lanka Law Reports
(1998) 2 Sri LR.
Regarding the duties mentioned in this letter, except wherespecially mentioned, they only apply to Rosita estate and notWooton; any special instructions that the Wooton Estate Super-intendent may have for you, he will inform you himself.
It is common ground that later CTPC acquired Stonycliff estate.Rosita and Stonycliff estates were amalgamated, and known as StonycliffGroup (Stonycliff). Stonycliff was later taken over by the Land ReformCommission. On 22.3.76 the Superintendent of Stonycliff informed theapplicant that the management of the estate would be transferred tothe Janatha Estates Development Board, the 2nd respondent; that hewould be informed of the terms and conditions of employment whichwould be effective from 1.1.77; and that he would be given areasonable time to decide whether he would like to join the 2ndrespondent on those terms. On 28.6.77, the 2nd respondent offeredhim employment "on the same terms and conditions enjoyed by [him]at the time of the take-over of the estate"; the applicant accepted.The applicant thus served on Stonycliff for 22 years until December,1984, when the 2nd respondent sought to transfer him.
By letter dated 11.12.84, the Superintendent of Stonycliff, the 1strespondent, conveyed the 2nd respondent's instructions to theapplicant, that he "has been transferred to Ingestre Group, Dickoya,with effect from 15th January, 1985 on the same terms and conditionsenjoyed by [him] at present". The applicant replied on 20.12.84. Whilereserving the right to question the legitimacy of the transfer, he inquiredwhether the terms and conditions enjoyed by him on Stonycliff couldbe offered to him on Ingestre. He specified some of those facilities;in particular, his living quarters, and its electricity supply and extentof home garden, gross salary and additional allowances, and the CTPC"special facilities regarding service over 25 years" as he had completed22 1/2 years. Instead of replying to this request, the 1st respondentasked him to forward a certified copy of the original of the letter ofappointment issued to him saying that the letter (presumably, of 1.8.62)sent by the Superintendent appeared "to be only certain instructionsthat were given to [him] on confirmation of [his] appointment". Theapplicant replied that he had been unable to find any letter other thanthat sent by the Superintendent.
By letter dated 4.1.85, the 2nd respondent told the applicant thatit was unable to consider the claim made in his earlier letter, and
SC Nadarajah v. Janatha Estates Development Board (Fernando, J.)317
advised him to comply with the transfer order of 10.12.84. Since that"claim" made by the applicant was for comparable facilities, this letterindicated uncertainty, if not unwillingness, about affording such facili-ties. The applicant replied on 7.1.85 that the terms and conditionsof his contract could not unilaterally be changed, and that they didnot provide for a transfer as proposed by the 2nd respondent. Hesaid that he was unable to comply with the transfer order, addingthat he would regard enforcement of that order as constructivetermination of his services. On 24.1.85 the Superintendent of Ingestrewrote to him.that, because he did not assume duties on Ingestre,he was being treated as having vacated his post. The applicant repliedthat he had no contract with the Superintendent of Ingestre, andinformed the respondents that he continued to be willing to serve onStonycliff. He then applied to the Labour Tribunal.
The applicant was not informed of the reason for. the transfer order.The circumstances leading up to that transfer were these. Shortlybefore, the 2nd respondent had ordered one Jeevanadhan, the MedicalAssistant on Chrystlers Farm Estate, to go on transfer to Ingestre asMedical Assistant; this transfer was cancelled; and thereafter twotransfer orders were issued, to the applicant to go to Ingestre, andto Jeevanadhan to take his place at Stonycliff. The applicant had,by August, 1984, completed a three-month course of training, includingintra-uterine contraceptive device (IUCD) insertion. The respondentsclaimed that Jeevanadhan's transfer to Ingestre was a routine transfer,and that the question whether Ingestre had IUCD facilities was notconsidered; that immediately thereafter health issues were discussed,and it was decided to transfer the applicant to Ingestre; however, nodecision had been taken to provide IUCD facilities at Ingestre. Onthe other hand, the documentary evidence showed that immediatelyafter the applicant had completed his training, an application had beenmade to the Family Health Bureau for approval of a family planningclinic at Stonycliff with IUCD services. In that application it was statedthat the Estate Medical Assistant would conduct the clinic, indicatingbeyond doubt that this was the applicant, whose special training wasmentioned. The Bureau by letter dated 5.11.84 had approved theStonycliff family planning clinic. It appeared that Jeevanadhan had no
Sri Lanka Law Reports
(1998) 2 Sri LR.
IUCD training. Thus although the impression sought to be given wasthat the transfer was intended to make the best use of the applicant'sservices, and that the applicant was the most suitable for Ingestre,the evidence was that the population of both estates was similar; thatthe necessary instruments were available on Stonycliff; and Jeevanadhanwas not qualified to provide IUCD services.
The learned President of the Labour Tribunal held that althoughthe applicant was transferable, the 2nd respondent had failed to justifythe transfer order; that the termination of his services was wrongfuland unjustified; and ordered the 2nd respondent to reinstate theapplicant with back wages in a sum of Rs. 21,567.70, or as analternative to reinstatement to pay a further sum of four years salaryas compensation, amounting to Rs. 86,270.40.
On appeal, the Court of Appeal held that the 2nd respondent wasentitled to transfer the applicant; that it was a routine transfer; thatthe order of the Tribunal requiring the management to inform theapplicant of the reason for the transfer was perverse; and set asidethe order of the Tribunal.
It was held in Ceylon Estates Staffs Union v. Superintendent,Meddecombra Estate, (1971) 73 NLR 278, that even if the contractof employment is silent, an employer has an implied right to transferthe employee. It is not necessary, for the purposes of this case, toconsider whether that implied right is subject to some limitation orqualification: whether it extends to new situations not contemplatedby the parties when the contract of employment was entered into.
However there can be no doubt that the implied right to transfercan be excluded, and in my view excluded either expressly or bynecessary implication. Mr. S. M. Fernando, PC, on behalf of the 2ndrespondent cited “Misconduct in Employment", by B. R. Chaiye, inwhich the following passage occurs:
SC Nadarajah v. Janatha Estates Development Board (Fernando, J.)319
“It is generally held that the right to transfer an employee is animplied right of the employer and, therefore, no express term inthe contract is necessary. The right exists even in the absenceof contract unless there is a contract to the contrary . . . However,- when during the same period the employer used two different formsof appointment letter, in one of them there is a condition, then itwill give rise to a strong inference that an employee who has beengiven the appointment letter without the condition of being trans-ferred is not liable to be transferred because it follows by necessaryimplication that there was a contract of not beingtransferred. Where the contract of apprenticeship was that "theapprentice will work as an apprentice in the company's ManjumalaiEstate for a period of three years" this militated against any rightof the employer to transfer him during the currency of the agreementfrom that estate to another … In one case an employee of asugar factory was transferred to another sugar factory which wasnot in existence at the time of appointment of an employee. Whenat the time of appointment the employer was running only onefactory and at that time there was no intention to purchase anotherfactory or to extend its activities in the same line at different placesor in any case the employees had no knowledge of any suchintention then it would not be right to imply any such term betweenthe parties." (pages 238-239).
This does not help the 2nd respondent. The appointment of theapplicant "as Dispenser on this Estate" prima facie suggests that hisemployment was on that estate only, and that therefore he was nottransferable; there is nothing in the other provisions of the letter ofappointment to rebut this. I therefore hold that the employer's impliedright to transfer was thereby excluded.
Even if I were to assume that the letter of appointment did notexclude the implied right to transfer, it would still be necessary toascertain whether the impugned transfer was within the scope of thatright. At the time when that letter was issued the parties could betreated as having had in mind the possibility of transfer to other estatesthen owned by the 2nd respondent; and perhaps even to other estates
Sri Lanka Law Reports
(1998) 2 Sri LR.
which the 2nd respondent might have acquired in the future. If,however, the 2nd respondent had become the owner of an estatein Indonesia or Kenya, I doubt whether the implied right to transferwould extend to a transfer abroad. In the present case, when theCTPC estates vested in the Land Reform Commission, the applicantcontinued in employment" on the same terms and conditions enjoyed… at the time of the take-over of the estate". If at that time theapplicant was transferable, he was transferable to other estates ownedby CTPC, but it is doubtful whether, when he became an employeeof the 2nd respondent, his liability to transfer became more extensivemaking him subject to transfer not only to those estates which wereformerly owned by CTPC, but also to the much wider category ofall estates owned (or managed) by the 2nd respondent. That wasan ambiguity in the new contract which resulted from the 2ndrespondent's offer. Since that was an offer made by the 2ndrespondent, that ambiguity must be resolved contra proferentem andin favour of the applicant, particularly because the 2nd respondentwas then in a superior bargaining position.
I therefore hold that the applicant was not liable to be transferredto Ingestre. That finding makes it unnecessary for me to review thefinding of fact that there was no justification for the transfer.
The appeal is allowed, the judgment of the Court of Appeal is setaside, and the order of the Labour Tribunal is affirmed. The 2ndrespondent shall pay the substituted appellant the sum ofRs. 107,838. 10, with interest at 20% per annum from the date ofthe Labour Tribunal order up to the date of payment, and a sum ofRs. 20,000 as costs in this court and the Court of Appeal.
DHEERARATNE, J. – I agree.
WIJETUNGA, J. – I agree.
Appeal allowed.