SC Priyadarshana and Two others v Sri Lanka Ports Authority 207
PIYADHARSHANA AND TWO OTHERSv
SRI LANKA PORTS AUTHORITYSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
RAJA FERNANDO, J.
SPL. LA NO. 250/2006
LT 1/180/06, 1/81/00, 1/408/98, 1/472/98
Termination of employment — Tendering forged documents in order to gainemployment – Dismissal of employee – Justified? – Labour Tribunal just andequitable order – Granting of compensation after holding that dismissal lawfuland justifiable – On Probation – Lawful?
208Sri Lanka Law Reports 2 Sri L.R
The three petitioners were dismissed from their employment as they werefound guilty after an inquiry – for submitting fraudulent/forged documents withthe intention of misleading the respondents in order to gain employment. Theirapplications filed in the Labour Tribunal were dismissed, howevercompensation was awarded except to petitioner P.
The High Court dismissed the applications but awarded compensation to P, onthe basis that the order of the Labour Tribunal would not be just and equitableif compensation was not awarded to one applicant out of four.
The 3 petitioners-appellants sought to set aside the two orders and claimingreliefs prayed in their applications.
The impugned termination of services was justified.
All the petitioners were on probations at the time of their termination of theiremployment. No malice or mala tides on the part of the respondent fortermination of employment had been alleged or averred at any stage.
The essence of a probationary appointment is that the employer retains theright not to confirm the appointment after a specific period particularly onthe ground of capability. A probationer has no right to be confirmed in thepost and the employer is not bound to show good cause where heterminates the services of a probationer.
The termination of the services of the probationers been lawful andjustifiable, the employees are not entitled to an additional order ofcompensation. The awarding of compensation of 6 months salary to thepetitioners who were on probation is without any basis. The petitionershave gained employment dishonestly and fraudulently, hence illegally – thepetitioners are not entitled to get any compensation for their dismissal fromtheir employment.
APPEAL from the judgment of the High Court.
Cases referred to:
G.H. Lily Perera v Chandani Perera and others BASL News 5.5.1992 CA223/77(F).
Esquire (Garments Industries Ltd. v Bank of India BASL News 1.12.1999CA 663/89(F).
University of Sri Lanka v Ginige 1993 1 Sri LR 362.
State Distilleries Corporation v Rupasinghe 1994 2 Sri LR 395.
Ceylon Cement Corporation v Fernando 1990 1 Sri LR 361.
Piliyandala Polgasowita MPCS Union Ltd. v Liyanage 74 NLR 138.
Brown & Co. Ltd. v Samarasekera 1996 1 Sri LR 334.
Jayasuriya v Sri Lanka State Plantation Corporation 1995 2 Sri LR 379.
Pfizer v Rasanayagam 1991 1 Sri LR 290.
Piyadharshana and Two others v Sri Lanka Ports Authority
SC(Jagath Balapatabendi, J.)209
Uditha Egalahewa for appellant-appellant-petitioners.
Suharshi Herath SC for respondent-respondent-respondent.
August 24, 2007
JAGATH BALAPATABENDI, J.The three applicant-appellant-petitioners (hereinafter referred toas petitioners) were employed by the respondent-respondent-respondent Sri Lanka Port Authority (hereinafter referred to as'Respondent').
The facts in brief are as follows:
The three petitioners with two others were dismissed from theiremployment, by the respondent, as they were found guilty after aninquiry for the following charges:-
For submitting fraudulent – documents or forged documentswith the intention of misleading the respondent in order togain employment;
In securing the employment each of them acted fraudulentlyto mislead the respondent;
The three petitioners (with the other two employees) filedapplications in the Labour Tribunal against the dismissal from theiremployment. The learned President of the Labour Tribunal found:
The petitioners guilty for the alleged charges,
the dismissal of the petitioners from the employment werelawful and justifiable, but awarded compensation for othersexcept for the petitioner Piyadharshana.
In the appeal to the High Court, the learned High Court Judgeheld that the Order of the learned President of the Labour Tribunalwas lawful and correct, but awarded compensation for thepetitioner Piyadharshana also, as the Order of the Labour Tribunalwould not be a just and equitable, if compensation was notawarded to one applicant, out of four.
In this Court the petition had been filed only by three petitionersnamely Piyadharshana, Nimalasiri and Weerananda and in thePrayer to the petition they prayed:
210Sri Lanka Law Reports[2008 2 Sri L.R
to set aside the Judgment of the learned High Court Judge,
to set aside the Order of the learned President of the LabourTribunal;
to grant reliefs prayed for in the Prayers of the applications ofthe petitioners filed in the Labour Tribunal marked as P1A,P1B and P1C on the facts stated therein.
Now I will deal with the evidence (facts) available against eachof the petitioners separately:
It is pertinent to note that all three petitioners were onPROBATION at the time of dismissal from their employment. It wasan admitted fact that clause (12) of the letter of Appointment issuedto the petitioners states that the Applicant is liable to be terminatedfrom his services in the event of any document forwarded to gainthe employment reveals that it is false or forged. Also it wasadmitted that the procedure which prevailed at that time forrecruitment of un-skilled employees was on the list of names of thecandidates given by the Hon. Minister in charge of the respondentSri Lanka Ports Authority. Hon. Minister prepares the list ofcandidates to be selected on the quota given to the Members of theParliament. Once the Applications are received from thecandidates with the Hon. Minister’s endorsement, they are calledfor an interview and selected. Later the names of the employeesselected, are checked with the 'List' sent by the Hon. Minister.
The Petitioner – Piyadharshana – The contention of thisApplicant was that, having heard from a friend already employedwith the respondent that there are vacancies, he submitted anapplication to the respondent with a letter of recommendation fromMr. Atula Nimalasiri, the Member of Parliament for Mahara. Laterhe was selected as a Driver after an interview. He joined therespondent on 30th April 1997 till his employment was terminatedon 2nd September 1997. (About 04 months in service).
The evidence led at the Labour Tribunal revealed that theApplication form of the petitioner does not indicate the category ofthe Job he applied for and whether he has got a driving licence.
The respondent alleged that even though there was anendorsement placed on the application of the petitioner deemed to
The finding of the learned President of the Labour Tribunal wasthat on the facts elicited at the inquiry, the petitioner was guilty tothe charges, and hence the dismissal was justified.
The Petitioner – Daya Nimalasiri – The alleged charges werethe same against this petitioner and his contention was that hesubmitted an application to the respondent with a letter attached toit issued by the Hon. Minister Atula Nimalasiri Jayasinghe. Later hewas selected as an Assistant Manager after an interview. He hasjoined the respondent on 23rd April 1997 and his services wereterminated on 11th July 1997 (about 2 1/2 months in service).
The finding of the learned President of the Labour Tribunal wasthat, the petitioner had given contradictory evidence on the letterissued by Hon. Minister Atula Nimalasiri Jayasinghe and his namewas not in the 'List1. Thus, the Hon. Minister in charge of therespondent (Ports Authority) Mr. Ashroff could not have put anyendorsement on the Application form. Hence, the endorsementwhich appear on the Application form is a forgery, (at page 276 ofthe brief, and at page 11 of the Order) Therefore he had justified thedismissal of the petitioner. But awarded compensation of 6 monthssalary.
The Petitioner – Weerananda – The alleged charges were thesame against this petitioner also. His contention was that hesubmitted an application to the respondent with a letter attached toit, issued by Hon.Minister Atula Nimalasiri Jayasinghe. He wasselected as a Security Guard after an interview, and joined therespondent on 2nd May 1997. his services were terminated after 4months of service on 2nd September 1997.
Piyadharshana and Two others v Sri Lanka Ports Authority
SC(Jaaath Balapatabendi, J.)211
be by the Hon. Minister, the Applicant petitioner's name did notappear in the list sent by the Hon. Minister. Thus, the saidendorsement was a forgery.
The petitioner had admitted the fact that he told a lie at theDomestic Inquiry about the letter given by the Member ofParliament for Mahara. Further he had stated, that he was
surprised when he got the letter of appointment to wit
212Sri Lanka Law Reports(2008) 2 Sri L.R
The learned President of the Labour Tribunal had found thateven though the petitioner stated that he attached a letter to theApplication form issued by the Hon. Minister and handed it over toone Kumara, an employee of the respondent, the said letter wasnot found with the Application form and his name did not appear inthe list sent by the Hon. Minister. Hence Hon. Minister Mr. Ashroffcould not have put any endorsement on the application form. It waselicited at the domestic inquiry that his application was dated 20thJanuary 1997, he joined the respondent on 2nd May 1997,whereas the date of the endorsement deemed to have put by theHon. Minister was on 20th July 1997, after he gained theemployment with the respondent. Thus, it is clear the endorsementof the Hon Minister was a forgery (document R10). Hence thetermination of the employment of the petitioner was justified. Butawarded compensation of 6 months salary by the President LabourTribunal.
The witness Musakil had given evidence on behalf of therespondent and had stated that he worked more than ten yearsclosely with the late Hon. Minister Ashroff as he is a relative and heis very familiar with the signature and handwriting of the late Hon.Minister. At the time he gave evidence he was the PersonalAssistant to the Vice Chairman of the respondent. He testified withcertainty that the endorsement and the signature that was on eachApplication form forwarded by the three petitioners was not thesignature and handwriting of the late Hon. Minister Mr. Ashroff.
The learned President of Labour Tribunal after careful analysisof the evidence led arrived at a finding that the signature of the lateHon. Minister appears on the Application forms was forged.Therefore, in no uncertain terms has found that the dismissal of thepetitioners from the employment were justifiable.
The learned High Court Judge on analysis and evaluation of theevidence led at the Labour Tribunal against the three petitionersand also on the findings of the President of the Labour Tribunal onthe question of law, had come to a conclusion that the terminationof the employment of the three petitioners were lawful andjustifiable, but awarded compensation of 6 months salary to thepetitioner Piyadharshana also.
Piyadharshana and Two others v Sri Lanka Ports Authority
SC(Jaaath Balapatabendi. J.)^13
Special Leave to Appeal was granted by this Court to the threepetitioners on the following questions of Law:
The learned High Court Judge of the Province has notconsidered the fact that the Order of the learned Presidentof the Labour Tribunal is against the weight of the evidenceadduced.
The learned High Court Judge of the Province has nottaken into consideration the fact that since the Order of theLabour Tribunal has ordered compensation in lieu ofemployment the decision arrived at by the learnedPresident of the Labour Tribunal that the termination isjustifiable is wrong:
The learned High Court Judge of the Province has notobserved that in the absence of any probable evidence toprove the misconduct and/or the allegations leveled againstthe petitioners, the Labour Tribunal President's conclusionto that effect is vague.
The learned High Court Judge of the Province hasmisdirected himself in respect of the oral and documentaryevidence adduced.
The Counsel for the three petitioners contended that thepetitioners forwarded duly filled Application forms to therespondent and thereafter they were selected for employmentwith the respondent after an interview. They were unaware of anyendorsement put on their Application forms as alleged by therespondent. This position appears to be made up as therecruitment procedure adopted by the respondent (also known tothe applicants) was only on recommendation of the late Hon.Minister, Mr. Ashroff by placing an endorsement with his signatureon the Application Forms.
Further he contended that the alleged Application Forms weresent to the EQD by the President Labour Tribunal forexamination, and the EQD in his report has stated that he is notin a position to express any opinion on the signature and thehandwriting of the late Honourable Minister, thus the President ofthe Labour Tribunal has not evaluated the evidence against the
214Sri Lanka Law Reports 2 Sri L.R
petitioners and he has based his findings on the evidence of thewitness Musakil.
Section 47 of the Evidence Ordinance deals with: When it issought to prove the handwriting of a person other than by expertevidence the Court should follow:
(a) opinions of persons acquainted with the handwriting of theperson concerned.
A person is said to be acquainted with the handwriting ofanother:
when he has seen a person write the document in questionor of other documents;
when he has received documents purporting to be written bythat person in answer to documents written by himself orunder his authority and addressed to that person;
when in the ordinary course of business, documentspurporting to be written by that person have been habituallysubmitted to him. (“Habitually" means usually, generally oraccording to practice);
In the case of G.H. Lily Perera v Chandani Perera and othersit was held that ‘the onus probande' in a case where a Last Will isalleged to be a forgery is upon the party propounding a Will – hemust satisfy the conscience of the Court. A Court need not acceptthe evidence of a handwriting expert in a case where such expertcannot express a definite opinion.
In the case of Esquire Garments Industries Ltd. v Bank of Indianheld that .'Section 47 of the Evidence Ordinance describes opinionby non-experts as to handwriting could be elicited for the purposeof a Court coming to a conclusion as to the person by whom anydocument was written or signed. Thus, the opinion of anv personacquainted with the handwriting of such person would be relevant".
The Law of Evidence. (Volume lb bv E.R.S.R. Coomaraswamv.at page 648. it is stated, that testimony as to handwriting underSection 47 is for various reasons better than expert testimony. Thisis because there is no question of bias or suspicion of partialitysince the knowledge was acquired incidentally and unintentionallyand not for the purpose of litigation.
Piyadharshana and Two others v Sri Lanka Ports Authority
SC(Jagath Balapatabendi, J.)215
Murphy on Evidence at page 596 states as follows:
"There is an obvious relevance in evidence which proves theauthenticity of the handwriting of the person purporting to bethe signer or executer of the document. Handwriting may beproved in any of the following ways:
". Non-expert witnesses who are familiar with the
signature of the purported signer, or who have on otheroccasions received documents bearing the purportedsignature or made in the purported handwriting of thepurported signer, may state their opinion that the document issigned by the person by whom it purports to be signed. Theweight of such evidence may, of vary very considerablyaccording to the circumstances of the case including thedegree of the witness's familiarity with the handwriting".
Hence, I take the view that the findings of the President of theLabour Tribunal was correct in Law.
In this appeal, it was admitted that –
All the petitioners were ON PROBATION at the time oftermination of their employment (few months of servicein the said relevant posts).
Clause (12) of the Letter of Appointment of each of thepetitioners states ’’that their services could be terminatedin the event of, if they have made any misrepresentationor forwarded any fraudulent documents to gain theemployment with the respondent.”
Scheme of recruitment was only on the recommendationof the Hon. Minister, sent to the respondent by way of a'List' containing the names of candidates to be recruited;
No malice or mala fide on the parts of the respondent fortermination of their employments had been alleged or averred bythe petitioners at any stage. If the respondent (Employer) had actedmala fide the employee Probationer has a right to relief.
The essence of a PROBATIONARY APPOINTMENT is that theemployer retains the right not to confirm the appointment after aspecific period particularly on the grounds of capability. Aprobationary employee must know that he is on trial and must
216Sri Lanka Law Reports(2008) 2 Sri L.R
therefore establish his suitability for the post. The employer mustshow that he acted reasonably in dismissing a probationer. If anemployee is told that his appointment is subject to a probationaryperiod of a certain length of time, this does not give the employeea legal right to be employed for that length of time, and theemployer may lawfully dismiss him before that period has expired.Further, it is for the employee to prove that he was dismissed, it isfor the employer to show the reason for dismissal. It will then be forthe Industrial Tribunal to find out on the basis of evidencepresented whether or not the employer had acted reasonably intreating that reason as a sufficient ground for dismissal. A decisionon whether the employer acted reasonably is a question of fact forthe Industrial Tribunal to decide, which can only be challenged if thedecision was perverse or based on incorrect perception of the Law.
In the case of University of Sri Lanka v Ginige<3). It was held that"during the period of probation, the employer has the right toterminate the services of the employee if he is not satisfied with theemployee’s work and conduct. Where the employee is guilty ofmisrepresentation of facts, use of unbecoming language andmisconduct, the termination is justified and bona fide, if theemployer has acted mala fide the probationer has the right torelief".
In the case of State Distilleries Corporation v Rupasinghew. Itwas held that "the acceptance of the principle that Labour Tribunalhas jurisdiction to examine whether a termination is mala fide,necessarily involves the corollary that the employer must discloseto the Tribunal his reasons for termination and that means that heshould have some reason for termination". Further, it was held that"if the termination took place during the probation period the burdenis on the employee to establish unjustifiable termination and theemployee must establish at least a prima facie case of mala fide,before the employer is called upon to adduce evidence as toreasons for dismissal".
In the case of Ceylon Cement Corporation v Fernanda. It wasobserved that "the employer is the sole Judge to decide whetherthe service of a Probationer are satisfactory or not. A Probationerhas no right to be confirmed in the post and the employer is notbound to show good cause where he terminates the services of a
Piyadharshana and Two others v Sri Lanka Ports Authority
SC(Jagath Balapatabendi, J.)217
Probationer at the end of the term of probation or even before theexpiry of that period. The Tribunal cannot sit in judgment over thedecision of the employer. It can examine the grounds fortermination only for the purpose of finding out whether theemployer had acted mala fide or with ulterior motives or wasactuated by motives of victimization".
In the instant case the respondent had conducted a disciplinaryinquiry against the petitioners and found them guilty of forwardingapplication forms with the signature of the Hon. Minister forged.Thereafter, the President of the Labour Tribunal having consideredthe evidence led before him had come to a conclusion that thepetitioners have forged the signature of the Hon. Minister in theirApplication forms forwarded to the respondent, therefore thetermination of the employment of the Probationer were justified.The learned High Court Judge had affirmed the decision of thePresident of the Labour Tribunal.
For the reasons aforesaid it is my view that the Employer-respondent had given satisfactorily good reasons for thetermination of the services of the petitioner-employees who wereon probation. Hence the termination of the employment of thepetitioners were lawful and justifiable.
In the case of Piliyandala Polgasowita Multi-Purpose Co-operative Societies Union Ltd. v Liyanage(Q). Here the applicant-respondent was appointed on 15th February 1968 to a post oncondition that if during a probationary period of one year, theemployer was not satisfied with him, his services were liable to bediscontinued. About five months afterwards his services wereterminated because the Employer-Appellant discovered that therespondent had been charged in 1946 in the Magistrate's Court foroffences involving DISHONESTY and dealt with under Section 325of the Criminal Procedure Code. It was held that "the termination ofthe applicant-respondent's services was justified. In such a casethe employee is not entitled to an alternative order ofcompensation".
in the case of Brown & Co. Ltd. v SamarasekeraW. It wasobserved that "at the time of the impugned termination of services, therespondent was a probationer. His services were terminated aftergiving him two extensions of his period of probation. The fact that such
218Sri Lanka Law Reports[2008) 2 Sri L.R
an opportunity was given would negative the existence of mala tides.In the circumstances, the impugned termination of services wasjustified and the respondent is not entitled to compensation'1.
In the case of Jayasuriya v Sri Lanka State PlantationCorporation^8). It was observed that "the Tribunal must make an orderin good equity and conscience, acting judicially based on a legalevidence rather than on beliefs that are fanciful or irrationally imaginednotions or whims". Further, it was observed that "for just and equitableverdict the reasons must be set out in order to enable the parties toappreciate how just and equitable the verdict is. Where no basis forcompensation award is given the order is liable to be set aside. Theessential question is the actual financial loss caused by the unfairdismissal because compensation is an indemnity for the loss".
In the case of Pfyzer Ltd. v Rasanayagarrti9>. It was held that "inassessing compensation the essential question is this. What is theactual financial loss caused by the unfair dismissal?"
In the instant case I am of the view that the learned President ofthe Labour Tribunal and the learned High Court Judge have awardedcompensation of 6 months salary to the petitioners who were onprobation without any basis.
It is obvious that the petitioners have gained employmentdishonestly and fraudulently, hence illegally with the respondent asprobationers and worked only for about 4 months, therefore I am ofthe opinion that the petitioners are not entitled to get anycompensation for their dismissal from their employment.
For the reasons aforesaid, I affirm the decisions of the learnedPresident of the Labour Tribunal and the learned High Court Judge onthe termination of the employment of the petitioners. And set aside thedecisions of both the Labour Tribunal and the High Court of awardingcompensation of 6 months salary to the petitioners. Appeal isdismissed. No costs.
DR. SHIRANI BANDARANAYAKE, J. – I agreeRAJA FERNANDO, J. – l agree.
The decisions by the Labour Tribunal and the High Court to awardcompensation set aside.