Scnutuiviikt• r. Ihtmuniipi'iu ti'/ctin I'crcru, J.)
NATIONAL SAVINGS BANK
v.CEYLON BANK EMPLOYEES’ UNION
WANASUNDERA, J., WlMALARATNE, J., AND SOZA, J.
S.C. SP.L. A. 104/81.
JULY 14, 1982.
Termination of employment – Cheating at examination – Misconduct sufficient fordismissal – Banks’ special duty to ensure honesty of its employees.
The appellant dismissed one Sarath Amarasuriya for cheating at an examinationconducted by the Bankers Training Institute.
Sarath Amarasuriya admitted the offence of having in his possession notes relevantto the paper he was answering in the examination hall but prayed for leniency.The Labour Tribunal directed re-in'statement but did not award back wages. Onappeal by the appellant the Court of Appeal affirmed the decision of the LabourTribunal. The appellant appealed to the Supreme Court.
That the Bank is under a special duty to ensure the honesty of its servants isnot open to question and that therefore the misconduct of the employee at theexamination justified the Bank's dismissing the employee.
.Sri Litnka Law Reports
(1982) 2 S.L.R.
Cases referred to:
Clouston & Co. L.tdr, r. Corry (1906) A.C. 122, 129-
Bakshi R Agnesh 1'. Bharat Bank Ltd. Gazette of India, January 20,1951, 72.APPEAL from judgment of the Court of Appeal.
Isidore Fernando for appellant.
5. Sinnetamby for respondent.
September 22, 1982
Cur. adv. vult.
In this case the appellant Bank had dismissed a clerk in its serviceone Sarath Amarasuriya for alleged misconduct at an examinationconducted by the Bankers' Training Institute in February 1979.Amarasuriya was detected having in his possession notes relevant tothe question paper be was answering by the Supervisor at theexamination hall. He was thereafter debarred Tor life by the Institutefrom sitting any examination conducted by it. On 4.6.1979 the Institutereported the matter- to the appellant Bank by. its letter Rl. Theappellant Bank then on 12.6.1979 wrote letter RIA to Amarasuriyaasking him for his explanation. Amarasuriya replied by letter R2 of20.6.1979 admitting having committed' an offence by having in hispossession notes relevant to the paper he was answering at theexamination and requesting that the punishment be fair and merciful.The Bank however terminated Amarasuriya’s employment on 20.7.1979.Thereupon on 26.7.1979 the Ceylon Bank Employees’ Union who isthe respondent to this appeal filed an application in the Labour-Tribunal on behalf of Amarasuriya claiming inter alia back wagesand reinstatement for him from the appellant Bank. The learnedPresident of the Labour Tribunal inquired into this matter and byhis order of 28.7.1980 directed reinstatement but did not award backwages. The appellant Bank, appealed tp the Court of Appeal fromthis order. At the hearing of the appeal the appellant was notrepresented and the' order of the learired President of the LabourTribunal was affirmed. The appellant Bank now seeks the interventionof this Court having obtained special leave to appeal.
So far as the facts go, although the Institute of Bankers appearsto have acted on the footing that Amarasuriya was detected referring
SC National Savings Bank r. (Winn Bank> vrr.v' IInion (St'za. J.)631
to notes in his possession during the examination, the appellant Bankappears to have been content with treating the miiilfcr as ac&se'ofpossession of notes at the examination hall.
The question before, us is whether possession of notes relevant tothe examination at the hall is misconduct grave enough to justifydismissal. On the general,question of misconduct by an employeethe Privy Council had the following observations to make in the caseof Clouston <& Co. Limited v Carry (1):
“There is no fixed rule of law defining the degree of misconductwhich will justify dismissal. Of course there may be misconductin a servant which will not justify the determination of thecontract of service by one of the parties to it against the willof the other. On the other hand, misconduct inconsistent withthe fulfilment of the express or implied conditions of servicewill justify a dimissal. Certainly when the alleged misconductconsists of drunkenness there must be considerable difficultyin determining the extent or condition of intoxication whichwill establish a justification of dismissal. The. intoxication maybe habitual and gross, and directly interfere with the businessof the employer or with' the ability of the servant to renderdue service. But-it may be an isolated act committed -undercircumstances of festivity and in no way connected with oraffecting the employer’s business. In such a case the questionwhether the misconduct proved establishes the right to dismissthe servant must depend upon facts– and is a question of fact."
The Board was here considering whether drunkenness amounts tomisconduct.. From the passage quoted what enierges is that thequestion of misconduct is a question bf-faet and the test applicableis, ‘Is the misconduct inconsistent with-the fulfilment of the expressor implied conditions of service?”-
We were referred io a passage in Alfred Avins’ book on EmployeesMisconduct (1968) pp. 482, 483 where the learned author relies onthe case, of Bdkshi R. Agnesh v Bharat Bank Ltd. (2) for. theproposition that a bank clerk who cheats-at an examination held by-the Indian Institute of Bankers commits misconduct in his employment,since there is. at least a false implied representation that the examinationrules have been complied with, and; the results of the examination^will be used by the bank in considering the employee for promotion -I have consulted the report of this case and find it .was decided on
Sri l.unka Law Reports
ami 2 S.I..R.
an application of Rule 4(a) of the Indian Banks bye-laws (RevisedEdition) 1947. I am not aware whether the appellant Bank has anysimilar bye-law. In any event it would not be appropriate to rely onthe decision in question in the case before us which has not beenpresented on an alleged infringement of any bye-law of the Bank.However the principles which should guide the Court in deciding acase like the one before it are clear.
The public have a right to expect a high standard of honesty inpersons employed in a bank and bank authorities have a right toinsist that their employees should observe a high standard of honesty.This is an implied condition of service in a bank. Conduct on thepart of a bankman which tends to undermine public confidenceamounts to misconduct. Whether the misconduct relates to thedischarge of his duties , in the bank or not, if it reflects on thebankman's honesty, it renders him unfit to serve in a bank andjustifies dismissal.
. It was argued before us that Amarasuriya had taken his notes intothe hall inadvertently. He had been referring to the notes whentravelling to the place .of examination and had at the last minuteput the notes into his. pocket and oblivious of this fact entered theexamination hall. This story, even if true, shows such careless disregardfor the requirements of honesty at an examination as to amount tomisconduct.
The learned President found that Amarasuriya has innocently takenthe examination notes into the hall but in the same breath he declaredthat an offence had been committed, and a serious offence at that.He went on to hold that Amarasuriya was guilty of misconduct atan examination but not of misconduct at his work place and orderedreinstatement. The learned President has failed to appreciate the factthat he was considering the case of an employee of a bank whichis under a special duty to ensure that the honesty of its servants isnot open to question. The dismissal of Amarasuriya. was thereforejustified. The order of the learned President cannot be allowed to stand.
. The Court of Appeal had dismissed the appeal of the Bank. Butthe Bank had not been represented at- the hearing of the appeal andthe Court did not have the advantage of a full argument. Here toothe fact that this was a case of a bankman whose integrity was undera cloud did not receive adequate weight.
1 therefore allow this appeal and set aside the orders of the LearnedPresident and of the Court of Appeal. The order of dismissal of
Ihrtthi/n > Ariritwirrui
Sarath Amarasuriya from the service of the appellant Bank will standbut there will be no costs.
WANASUNDERA, J. – 1 agree.
WIMALARATNE, J. – I agree.