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[2008] 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.
Appeal dismissed.
The decisions by the Labour Tribunal and the High Court to awardcompensation set aside.