052-SLLR-SLLR-1996-V-2-NELSON-DE-SILVA-V.-SRI-LANKA-STATE-ENGINEERING-CORPORATION.pdf
NELSON DE SILVAV.
SRI LANKA STATE ENGINEERING CORPORATION
COURT OF APPEALF.N.D. JAYASURIYA, J.
C.A. CASE NO. 21/89
L.T. CASE NO. 1/Addl75778/84
JUNE 26, 1996.
Industrial Dispute – Vacation of post – Elements required to establish vacation ofpost.
The concept of vacation of post involves two aspects. One is the mental element,that is the intention to desert and abandon the employment and second is thefailure to report at the work place of the employee. To constitute the first elementit must be established that the applicant is not reporting at the work place, wasactuated by an intention to voluntarily vacate his employment. The physicalabsence and the mental element should co-exist for there to be a vacation of postin law. A temporary absence from a place does not mean that the place isabandoned; there must be shown also an intention not to return. So to the physicalfailure to perform a contractual duty there must be added the intention to abandonfuture performance. A reasonable explanation may negative the intention toabandon. A bona fide challenge to the validity of an order is a satisfactoryexplanation for not complying with it. By challenging the order the complainantwas affirming'the contract not abandoning it.
Cases referred to:
The Superintendent of Hewagama Estate v. Lanka Eksath Workers UnionSC 7-9/69 SCM 2.2.70.
Nandasena v. Uva Regional Transport Board – 1993-1 SLR 318.
Re Durand – (No.2) Judgment No. 392 of the Administrative Tribunalof the International Labour Organisation.
Sri Lanka Jathika Pravahana Sevaka Sangamaya v. Central RegionTransport Board and Sri Lanka Central Transport Board – C.A. 402/81 -C.A. Minutes dated 07.05.1987.
Wijenaike v. Air Lanka Ltd., (1990) 1 Sri L.R. 293, 300.
Somaratna v. Pullimodan Chetty and Sons Ltd – SC 160/71 – SCM7.6.1972.
APPEAL from the order of the Labour Tribunal.
Nimal Muthukumarana for the Applicant-Appellant.
Ms. Eva Wanasundara, Senior State Counsel for thp Employer-Respondent.
Cur.adv.vult.
June 26, 1996.
F.N.D. JAYASURIYA, J.
I have heard both learned Counsel for the Appellant and theRespondent. I have perused the contents of the order dated 16.09.89pronounced by the learned President of the LabourTribunal. The saidPresident has considered only one aspect of the issue of vacation ofpost. The concept of vacation of post involves two aspects; one is themental element, that is intention to desert and abandon the employmentand the more familiar element of the concept of vacation of post, whichis the failure to report at the work place of the employee. To constitutethe first element, it must be established that the Applicant in notreporting at the work place, was actuated by an intention to voluntarilyvacate his employment.
Having particular regard to the attendant circumstances of theinstant application, this court is called upon to determine whether avoluntary and intentional vacation of post on the part of the Applicant-Appellant has been established by the Employer-Respondent. In LankaEstate Workers Union v. The Superintendent of Hewagama Estate the learnedPresident of the Labour Tribunal held on the facts that there was noabandonments employment by the workman as the workman inquestion had no intention of abandoning his employment.The learnedPresident correctly applying the legal principles observed that thephysical absence and the mental element should co-exist for there tobe a vacation of post in law. Besides, he held on this issue theTribunalought to be guided by the common law of the land which is Roman-Dutch Law and consequently the English doctrine of frustration, reliedupon by learned Counsel, has no application whatsoever to the situationunder consideration. An appeal preferred by the employer against thisorder of the learned President of the LabourTribunal was consideredby the Supreme Court in The Superintendent of Hewagama Estate v.Lanka Estate Workers Union™ and the order of the learned Presidentwas affirmed in Appeal.
In K.V. Jayaratne v the University of Ceylon* The High Court Judgeaffirmed the aforesaid principles of law and remarked "We have toapproach this problem guided by the overriding common law principlesand one has to ascertain whether an intention to abandon employmentcan reasonably be inferred from the proved circumstances in eachparticular situation. The mere physical aspect of the workman’s conductcannot be singled out and taken in law to signify the abandonment ofthe contract of employment". Likewise, in the dissenting judgmentpronounced by Justice Mark Fernando in Nandasena v Uva RegionalTransport Board. <2) His Lordship observed "From the fact that anemployer deems hjs employee to have vacated post, it does notconclusively follow that there has been a termination by the employee;that would depend on the circumstances whether the Appellant's failureto report for work was a bona fide challenge to a disputed order isrelevant. His Lordship relied upon passages in the decision In ReDurand3) to the following effect – “It (abandonment of employment)contains both a physical and a mental element. A temporary absencefrom a place does not mean that the place is abandoned; there mustbe shown also an intention not to return. So to the physical failure toperform a contractual duty, there must be added the intention to abandon
future performancea reasonable explanation may negative the
intention to abandona bona fide challenge to the validity of an
order is a satisfactory explanation for not complying with it. By
challenging the orderthe complainant was affirming the contract
not abandoning it."
In A.A.W.B. Adi Kavi v Colombo Dockyard Co. Ltd.** The HighCourt Judge set aside the order of the President, holding that he hadaltogether failed to give his mind to a vital ingredient in regard to themental state of the Applicant. The judge remarked "the party seekingto establish a vacation of post against an employee, must not merelyprove the physical absence from work but a burden lies upon him toestablish that physical absence co-existed with the requisite mentalintent. The Learned President has completely failed to consider whetherthe employer has established this vital ingredient. The evidence led bythe applicant (of mental ill-health) negatives such a menial element onhis part in the circumstances of this case. Further the absence from
’ LT/13/11428/89 – HCLTA 43/91** LT/2/276/87 – H.C.M. 17.1.94 – HCLTA 4/90
work (from 25.05.1987 till 02.06.1987) in this situation is for a shortduration of time.
In this context I wish to cite a passage from the author AlfredAvins – Employee's Misconduct at page 26. °l wish to advert to thejudgment of Justice Jayalath in Sri Lanka Jathika Pravahana SevakaSangamaya v. Central Region Transport Board and Sri Lanka CentralTransport Board*' where the identical principles were applied by thelearned judge. Justice Kulatunga in a fundamental rights applicationbefore the Supreme Court – Wijenaike v. Air Lanka Ltd.{5) – referred tothe same principle and emphasised that physical absence alone isinsufficient and that the party seeking to establish a vacation of postmust prove that the physical absence co-existed with the mental intent-animus non revertendi.
The learned President has not considered the first important elementin regard to the concept of vacation of post in his order. He has onlydiscussed the element related to the physical aspect and has heldthat by his conduct, the Applicant, after receiving document A21, hadvoluntarily vacated his post. The President has held that after receivingthe telegram marked A21 which was sent by the Resident Engineer tothe Applicant, the appellant has failed to report for work and therebyhe has vacated his post. He has held that by letter dated 29.05.84(marked A24) the Chairman of the State Engineering Corporation hasregretted that he cannot make any change to the said order of transferand had required him to report for work within three days. However theApplicant did not report for work at Digana within the period of threedays and that therefore his absence should be regarded as vacation ofpost. He has held that the letter marked as A22 dated 07.03.84 writtenby the Applicant to the Personnel Manager cannot have any effect tochange or vary the firm direction set forth in the letter marked A21.Thus, he has proceeded on the basis of physical vacation of post buthas not given his mind to consider the issue whether the applicant hadindulged in such conduct with the requisite intention of vacating hispost permanently. The attendant circumstances established upon thisapplication disclosed that the Applicant had made an attempt in securinga mutual transfer with another workman and had followed it up with anapplication to obtain approval for application for a mutual transfer andwas in fact awaiting the response of the employer to that mutual transfer.
There is evidence that considerable time lapsed since the handingover of the application for the mutual transfer. Thereafter, the applicantcontinued to attend to the*work at the Peliyagoda work site. The LearnedPresident has also further observed that there is evidence that the ChiefSecurity Officer of the State Engineering Corporation had written a letterdated 22.03.84 to the Officer-in-charge of the Digana work site, statingthat the applicant could not take up his duties as he was not releasedfrom his previous site. The contents of this letter substantiates theposition taken up by the applicant in regard to the cause for the delayand failure to report immediately at Digana. The applicant has not beenreleased from the Peliyagoda site.
The learned Counsel for the applicant-appellant has submitted thaton these vital facts the learned President has misdirected himself andwrongfully assumed that the applicant was ordered to be transferredfrom the Peliyagoda Central workshop to Digana, which was a falseposition asserted and maintained by the employer. Learned Counselfor the Appellant points out that in fact he was transferred from theworksite of the employer Corporation at the Law Faculty premises ofthe University of Ceylon to the Digana site and that the learned Presidenthas misdirected himself on this material issue. However, thesemisdirections do not impinge upon the crucial issue in the case. For itis manifest that after receiving the telegram marked A21 and after theclear intimation made by the witness Piyaratne, the Chief SecurityOfficer, the applicant did not proceed to Digana even by 13.03.1984.The applicant after the lapse of two weeks had failed to report for dutyat Digana or satisfactorily explain his failure to do so.
However in regard to the aforesaid mental element on the part ofthe applicant to abandon his employment the learned President hasnot considered this important element and his order is liable to bejudicially reviewed before this Court on the aforesaid non-direction inlaw which amounts to a misdirection in law. In the circumstances, Iallow the appeal of the Applicant-Appellant and direct the respondentto reinstate the Applicant in the post of Security Inspector in the serviceof the respondent Corporation from the 1 st of August 19§6, but I refrainfrom making any order for the payment of back wages to the applicant-appellant for reasons outlined above. The loss of employment has beendue entirely to the misconceptions and the defaults of the applicant-appellant and therefore I hold that he is not entitled to an order for backwages. Vide Somaratna v. Pullimodan Chatty and Sons Ltd™ In theresult, I make order directing the employer-respondent to reinstate theapplicant-appellant in the post of Security Inspector. In thesecircumstances the applicant-appellant is reinstated in the service ofthe respondent in the post of Security Inspector with effect from 01.08.96without the need to pay back wages on the specific condition that theApplicant-Appellant is in a transferable service and if a transfer orderissues from Employer-Respondent that the Applicant-Appellant is boundto accept that transfer and report for work at the place to which he isso transferred by such order. Applicant-Appellant's Counsel concedesthat the Employer-Respondent is entitled to transfer its employees toany station chosen by the employer and the employees who receivesuch orders are required to report for work at particular sites. Thisorder of reinstatement is made in favour of the Applicant-Appellantwith the aforesaid clear condition and if the Applicant-Appellant fails tocomply with that condition stipulated by the employer, his serviceswould in such circumstances, be lawfully terminated. I allow the appealwith costs in a sum of Rs.1050/- payable by the employer-respondentto the Applicant-Appellant.
Appeal allowed.