Jteckitl ds Colman Ltd, v. Petris
1978 Present: Thamotheram, J. and Colin Thome, J.
RECKITT & COLMAN OF CEYLON LTD., Employer-Appellant
R.J. PEIRIS, Applicant-RespondentS C. 151/76—L. T. 17/2911
Labour Tribunal—Appeal—Findings of fact—In what circumstances canAppeal Court interfere.
Held : That the findings of fact of the Labour Tribunal in thiscase were not supported by the evidence on several vital issues andwere inconsistent with and contradictory to the evidence. In sucha case the Appeal Court has jurisdiction to intervene and set asidesuch findings.
■Cases referred to :
Nuidu & Co. v. Commissioner of Income Tax, (1959) A.I.R. 359.
Inland Revenue v. Frazer, (1924) 24 Tax Cases 498.
Ceylon Transport Board v. Gunasinghe, 72 N.L.R. 76.
Brooke Bond (Ceylon) Ltd. v. Trta Rubber & Co. and General ProduceWorkers Union, 77 N.L.R. 6.
A,' PPEAL from an Order of the Labour Tribunal.
C. Ranganathan, Q.C., with D. C. Amerasinghe and P. Sunthera-lingam, for the employer-appellant.
J.W. Subasinghe, with Miss Manel Kalatuwawe, for theapplicant-respondent.Cur. adv. vult.
COLIN THOME, «X.—Reckitt cfc Cohnan Ltd, v. Pdrift
January 16, 1978. Colin Thome, J.
The President of the Labour Tribunal in this case has orderedthe reinstatement with back wages of the applicant-respondenton the basis of certain findings of fact which the appellant con-tends are so untenable that no reasonable tribunal could havearrived at such a finding. On this basis the employer-appellantprayed that this Court be pleased to set aside the order of thelearned President submitting that the material before thePresident established that the applicant-respondent’s dismissalwas fully justified.
On the 30th of April, 1968, R. J. Peiris, the applicant-respondentjoined Reckitt and Colman of Ceylon Limited, the employer-appellant Company, as an unskilled process worker and was paida monthly salary of Rs. 150—5—200. From the inception heworked in the Disprin Department and according to the manage-ment he was expected to clean the room where Disprin wasmanufactured.*
On the 1st November, 1968, he was confirmed as a semi-skilledprocess worker and was paid a monthly salary of Rs. 184—8—200—10—340 per month.
On the 1st July, 1970, as the worker refused to.clean the wallsof the Disprin Department he was suspended without pay withimmediate effect.
On 13th July, 1970, after a domestic inquiry conducted by themanagement the applicant-respondent was found guilty of refus-ing to carry out certain duties such as washing the walls of theDisprin Department and wilfully disobeying the orders of theappellant-Company’s Production Manager.
Thereafter, the appellant-Company wrote to the applicant-respondent and offered him as an alternative to dismissal anopportunity of continuing in its service on the following condi-tions contained in their letter dated 13th July, 1970 (R5) : —
“ (1) You will tender a written apology to the ProductionManager for your misconduct and insubordination ;
You will confirm in writing that you are prepared to
do all duties assigned to you by the Management whichare part of the normal duties assigned to .the categoryto which you belong and in particular that the wash-ing of walls and cleaning of your Department is partof such normal duties ;
You agree and undertake that should you in the future
give any cause for complaint whatsoever against you,you will be liable to be summarily dismissed withoutnotice.”
COLIN THOME, J—Beckiti d> C'olman Lid. v. Peiris
As the applicant-respondent failed to avail himself of theopportunity afforded to him, the appellant-Company terminatedhis services with effect from 1st July, 1970. Thereafter, theapplicant-respondent filed an application before the LabourTribunal on 30th August, 1970.
After inquiry the President of the Labour Tribunal deliveredhis order on 1st July, 1970, holding that the dismissal of theapplicant-respondent was unjustified. The President made order :
“ (1) That the applicant R. J. Peiris be reinstated as fromthe date of his dismissal 1.7.1970.
That in lieu of his back wages for the period of his
non-employment be paid a sum of Rs. 17,000.
The Company is free to impose on the applicant the
condition that he shall rinse the walls of the Disprir.Unit along with the other process workers.
In the event of the applicant rejecting this condition
the Company would be free to terminate the applicant’sservices if no suitable alternative employment ispossible within the Company, (without prejudice tothe applicant’s claim for back wages set out in para-graph 2 above and other claims or terminal benefitson the basis of services deemed to be uninterruptedby the period of his non-employment )
The respondent should pay the applicant a sum of
Rs. 2,000 as costs.”
The main issue in this case as agreed upon by Counsel for bothparties at the inquiry was whether tjie applicant-respondent andthe other process workers had been required to wash the wallsof the Disprin Department and whether there had been such apractice prior to the 1st of July, 1970.
The applicant-respondent’s position was that this dispute aroseon the 1st July, 1970 because the Production Manager Balasuriyaordered the applicant-respondent to wash the walls of the DisprinDepartment which was a departure from earlier practice.
According to the management, however, it had always beenthe function of the process worker to clean not only the machi-nery of the Disprin Manufacturing Department but also theceiling, windows and walls of the room. Only the floors werewashed by outside labourers. Being air-conditioned the windowswere sealed. The walls which were gloss painted white neededa thorough scouring with Vim and Rinso. On the 1st July, 1970the applicant-respondent (hereinafter referred to as the worker)unaccountably refused to clean and wash the walls of theDisprin Department claiming that it was not one of his duties.
COLIN THOAIJ2, J.—Reckict cb Cohn an Ltd. v. Reiris
The worker submitted that on and prior to the 1st July, 1970rthe washing of the walls and ceiling was done by outside-labourers after the process workers cleaned the machinery andinstalled polythene covers over it. On 1st July, 1970, theProduction Manager came into the Disprin Unit and instructedall the process workers to wash the walls. The worker refused todo so whilst the others obeyed. As a result of the worker’srefusal to wash the walls his services were suspended and laterterminated.
The management called three witnesses at the inquiry heldby the Labour Tribunal. According to N. M. Balasuriya he wasemployed by Reckitt and Colman Limited since 1962. Duringthe relevant period he was the Production Manager. He was incharge of the entire factory which manufactured Disprins, Dettol,Goya products and other articles. The machinery for themanufacture of Disprin consisted of a vacuum oven, mixer,slugger, tabletting machines, a foiling machine, tablet dusting-machine and a dehumidifying machine. These machines wereinstalled in a separate air-conditioned room. Five process workerswere employed in this room. Theix function was to take raw*materials from the stores and to manufacture Disprin in thesealed room. Once a week all the process workers had to do athorough cleaning of the machines and the room including thewalls and the ceiling. Thereafter, labourers scrubbed the floorswith soap and water. The reason why the labourers were broughtto scrub the floor was because they had to get down on theirhands and knees to scrub it. The process workers had also toclean the machines after manufacture every day in additionto the weekly cleaning.
Throughout the period from 30th April, 1968 to 1st July, 1970,the duties of the applicant-respondent were the daily cleaningof the machines and the weekly cleaning of the department alongwith the other process workers.
On 1st July, 1970, morning the worker walked into Balasuriya’soffice room and informed him that he could not do any cleaning.He also claimed that he represented all the other process workers-Balasuriya asked the other process workers whether they- hadsent Peiris to see him and all of them denied this. ThenBalasuriya told Peiris that he had done this cleaning earlier andrequested him to continue his work. However, Peiris, refused todo any cleaning. The result was that he was served- with a letterof suspension dated 1st July, 1970 (R3).
Balasuriya stated that even after the suspension of Peiris theother process workers continued as before to clean the wallsof the department.
COLIN THOME, J.—Reckitt it Column Ltd. v. Reiria2315
On 4th July, 1970, Peiris was informed by letter R4 that themanagement will be holding an inquiry into this matter at 10 a.m.on the 7th July, 1970 at the Ratmalana factory. He was directedto be present. This inquiry was held by the Managing DirectorMr. Adeney, who later left the Island- After this inquiry on13. 7. 1970 the worker was informed by letter R5 with referenceto the inquiry held on 7th July, 1970, that he had on his ownevidence been found guilty of the charge brought against himwhich would therefore justify his summarily dismissal. However,as a merciful alternative to dismissal he was offered an oppor-tuity to continue in his employment with a severe warning andon certain conditions already referred to.
The worker on 19th July, 1970, replied by letter R6 statingthat he had always carried out his duties diligently, faithfullyand loyally in terms of his contract of employment.
Under cross-examination Balasuriya said that all the processworkers wore overalls when working in the factory. He deniedthat the labourers cleaned the walls or washed them. Theworkers only washed the floor with soap, vim and rinso. Thesame detergent was used to wash the walls. The labourers woreblue shorts and shirts and sometimes khaki. They did not overallslike the process workers. The reason why the labourers wore adifferent uniform was because they had to get on their handsand knees to scrub the floor.
Balasuriya stated that he knew the worker’s family very welland he had nothing against him. He was a very good friend ofthe family and he knew the worker since he was a boy and hadcordial relations with him. It was only on the 1st July, 1970, thatthe worker refused to co-operate with the management. He hadnever punished the worker at any time before the termination.He had pulled him up earlier for weighing himself on theweighing scale of the Disprin Department. He had not punishedhim by keeping him in the sun for two hours after that incident.His work was good and he had earned his increments.
In re-examination Balasuriya stated that about August, 1970,after this incident, the Ceylon Mercantile Union formed a branchunion at'the factory. This local branch had at no stage everraised a dispute with the management in respect of the cleaningof w^lls.
D. W. Dissanayake the Manufacturing Pharmacist of Reckittand Colman since 1968 was the next witness. He stated that hewas in charge of all products of the firm including Disprin. Theroom manufacturing Disprin was 20 feet by 10 feet ; the ceilingwas about 12 feet high. The floor had rubber tiles. Every day at
COL1X THOMK, J.—Rcckitt <£ Colman Ltd. v. lJcirU
the end of production the semi-skilled process workers cleanedall the machines and they swept the floor. They also cleaned thewalls and ceiling with Vim and Rinso. This was necessarybecause in the process of manufacturing Disprin a lot of powdercollected in the room.
Prior to 1st July, 1970, the worker Peiris had attended to hisclearing duties, which included tne cleaning of the machines aswell as the walls and the ceiling. On 1st July, 1970, work startedas usual at 7.45 a.m. The semi-skilled workers who worked thatmorning were Sirisena, Wijesekera, R. J. Peiris, Piyadasa andRanaweera. On that day they started cleaning. He saw the appli-cant cleaning the foiling machine. After that he saw him cleaningthe wall near the foiling machine. At about 9.45 a.m. when hecame back to the manufacturing room Peiris told him that hecannot clean the wall and that there was some oily patches onthe wall near the switch. He then went to the workshop to geta piece of sand paper. When he came back Peiris was on theother side of the foiling machine and he stated that he could notclean the walls “ any more.” Dissanayake then told him that itwas part of his job and that he must continue to clean the wallsbut Peiris insisted that he cannot continue cleaning and hewanted to see the Production Manager. At this time the othersemi-skilled process workers were cleaning the room.
Dissanayake said that Peiris came from a different social back-ground from the other semi-skilled process workers who werenot English-speaking and came from poor families. The semi-skilled process workers gave statements in writing that they hadattended to the washing of the walls earlier.
In answer to the Tribunal, Dissanayake said that on the 1st ofJuly, 1970 he saw Peiri^ cleaning the walls with Rinso. He didnot complete cleaning his section of the wall. He had only doneabout half of it and he had only to cover an area of the wallabout 6 feet by 4 feet. He had finished cleaning the lower portionof the wall but not the upper portion.
J. C. M. de Mel, the Managing Director at Reckitt and Colmanwas the next witness. He had joined the firm in 1964 and wasappointed Managing Director at the end of 1969. He stated thatthere was a special building for pharmaceutical products becausethey were subject to certain high standards which had to bemaintained and which were inspected regularly by represen-tatives of the Formulary Committee. As these products wereused throughout the world and were manufactured by a processwhich involved danger it was important that there should beno contamination in any way. The whole process of pharma-ceutical products had to be rigorously controlled from the time
COLIN THOME, J.—Reckitt & Caiman hid. v. Reiris
the raw material was put into the machines up to the time whichthe product was packed in order to prevent contamination anddeterioration. This process had to be done by trained and com-petent people in a separate section of the factory which was anhighly sterilized and air-conditioned controlled area. The wallsof this room were painted and had to be scrupulously cleaned.If Vim or any detergent got mixed up with the raw material theresult could be disastrous. The walls were a part of the manu-facturing area. Some of the machines were only about 2 feet fromthe walls which necessitated that the walls had to be cleaned.Cleanliness both in the process of manufacture and in thesealed room was of paramount importance in the interest ofpublic health.
From 1964 to 1970 he was Acting Manager Director and he hadvisited the Disprin Manufacturing Department many times.During this period the cleaning of the walls was done by theprocess workers. Prior to 1st July, 1970, there was no incidentor dispute with the semi-skilled process workers about clean-ing the: walls. The cleaning of the walls and the ceiling was doneby the semi-skilled process workers and this is still done bythem. Unskilled labourers only cleaned the floor.
The evidence of Peiris at the Domestic Inquiry on the 7th July,1970, was admitted in evidence by the President of the LabourTribunal and marked R9. Peiris admitted signing this documentbut claimed that he had been forced to do so. In R9 Peiris hadstated that on the 1st of July, 1970, Balasuriya had told him andthe other workers to clean all the walls with Vim and Rinso, buthe had refused to do so as it was not part of his job. He deniedhaving done this work before. He admitted having that morningtaken out three marks from the wall with acetone. He concededthat he made the following admission :
“ Q. Do the other process workers wash the wall with Vimand Rinso ?
He admitted that he kept the department clean and brushed thewindows. He admitted that it was his duty to clean the depart-ment but that did not include the washing of the walls.
“ Q. What is the difference between keeping the departmentclean, why did you not use Vim and Rinso and cleanthe department ?
A. No answer-
Q. It is your job or part of your job to keep the departmentclean, why did you not use Vim and Rinso and cleanthe department ?
COLIN THOME, J.—Re.ck-.tt <Sc Colman Ltd. v. Peiris
Q. Are you not wanting to answer me ?
A. I do not have any answer.”
Before the Labour Tribunal Peiris said that the processworkers were not expected to touch Vim and Rinso because itmight get mixed up with the ingredients. It was the labourerswho used Vim and Rinso to wash the floor under the supervisionof Dissanayake. Under cross-examination he said that even priorto the 1st July, 1970, he was not required to wash the walls. Itwas exclusively the labourers who washed the walls, floor andbrushed the windows. Even the other process workers were notrequired to perform these duties. He also denied that he brushedthe windows. He was reminded of his evidence in the DomesticInquiry where he admitted that the other process workers washedthe walls and that he himself brushed the windows. He deniedmaking these statements. He said that he had a dislike for clean-ing walls. He also denied using acetone for cleaning the walls.He said that it was below his dignity to clean walls. He claimedthat Dissanayake had fabricated evidence against him. Headmitted that at the domestic inquiry on, the 1th of July, 1970,held by Mr. Adeney, the Accountant, Mx. Nimal Cook, was alsopresent and recorded what he said. He said that he was forcedto sign the record. He admitted his signature on R9. Cook andAdeney fabricated the document R9.
In answer to the President of the Labour Tribunal Peirisstated that he had no experience in washing walls and he wasasked the following questions :
“ Q. How long will it take you 😮 gain experience ?
A. I cannot say.”
He was again asked by the Tribunal.
“ Q. So even if.you are given back the job on this condition(of washing the walls) you will not do it ?
A. No, I will not do it.”
Thereafter, Peiris called V. G. Somadasa a former employee ofReckitt and Colman to give evidence. He was a labourer from1964 to 1973 in this firm and left on his own. He stated that hewas farming near Matara. While at Reckitt and Colman hewashed the floor of the Disprin Department as well as theceiling and the windows.^ Curiously, in his earlier answers hedid not mention that he washed the walls. Finally, Counsel forPeiris asked him the following question in a leading form whichwas the last question in examination-in-chief :
“ Q. So the labourers did the washing of the floors andwalls ? ’
COLIN THOME, J.—Reckitt <fe Colman Lid. v. reiris
Mr. Ranganathan submitted that there were several material,misdirections of fact in the Presidents Order. For instance, thePresident stated : “ My own impression is that the companywished to initiate a change in the process of cleaning in the Dis-prin Department on 1.7.1970.” He added: “ Had the Companyplaced its case on the basis of the new Standing Orders regard-ing the cleaning of the walls and the applicant’s dismissal forrefusing to do so, it is possible that the applicant would not havebeen compensated.” We agree with Mr. Ranganathan that therewas no evidence to substantiate this finding.
Mr. Ranganathan also submitted that the three witnesses forthe Management, namely, Balasuriya, Dissanayake and de Mel,had stated that they were aware personally for a considerableperiod of time that the semi-skilled process workers had washedthe walls in the past and were still doing so. However, thePresident misdirected himself when he held that de Mel hadno personal knowledge of this matter. De Mel’s evidence wasmisconstrued as he stated at the Labour Tribunal inquiry thathe had personal knowledge that the process workers had toclean the walls.
Mr. Ranganathan also criticized the order of the Presidentrefusing the application of the management to call Ciook, whorecorded the evidence at the domestic inquiry, in order to rebutPeiris’ evidence. The President had admitted this document R9and the contents of the entire document were elicited, includingthe fact that the applicant had signed R9. The President hadalso adopted portions of R9 in his order. We hold that in viewof the applicant’s allegation that R9 was a fabrication by Cook andAdeney the refusal of the President to allow the management tocall Cook to rebut this allegation was inexplicable, especially asthe document had been admitted in toto and he himself had reliedon portions of it in his order.
Under Section 36(4) of the Industrial Disputes Act, a widelatitude is given in the conduct of proceedings under this Act.,to an industrial court in the eliciting of evidence and it shallnot be bound by any of the provisions of the Evidence Ordinance.
Furthermore, the President had in his order relied on portionsof the transcript R9 which were favourable to the applicant buthad not referred to the admissions by the applicant which wereunfavourable to him. For instance, the President referred tothe portion of R9 where the applicant had stated that he wasnot asked to wash the walls. However, he did not refer to thoseportions of R9 where the applicant categorically stated that the
COLIN TltOMli, J.—liecki'.i c£r OolMC'.n Ltd. V. Petris
other process workers washed the walls with vim and rinso, andthat he had to keep the department clean and brushed thewindows.
We agree with the submission of Mr. Ranganathan that thePresident had not critically evaluated this vital aspect of the caseby failing to take into account those portions of the applicant’sevidence at the domestic inquiry which corroborated the evidenceof the witnesses for the management.
Mr. Subasinghe relied strongly on the evidence of Somadasaas corroborative of the evidence of Peiris. Here again, thePresident was in two minds about the varacity of this witness.
The President first held that, “ Somadasa was not a witnesswho could be called impressive. ” Later he stated that, “ Theimpression that he created was certainly not that of a witnessof convenience. ” The President has also not taken into accountthe fact that Somadasa worked in the Dettol Department whichadjoined the Disprin Department and that he could see fromthe outside what took place inside the Disprin Department.
This witness also claimed that he was busy working on a farmnear Matara and also attended to his father’s land as this workwas very remunerative. Somadasa’s explanation, however, whyhe continued to remain in Colombo continuously for three monthsfor the purpose of this inquiry is in our view feeble. We agreewith the President’s first assessment of this witness that he wasnot impressive.0
We also hold that the submission of counsel for the applicant-respondent that Balasuriya’s evidence is tainted as he had animo-sity towards Peiris is not substantiated by convincing evidence.The management in its letter dated 13th July, 1970 (R5) to Peirishad offered him an opportunity of reinstatement. If the motiveof the management was £o get rid of the worker this mercifulalternative would not have been afforded him. Even the allegationthat he was victimised because he was trying to form a branchunion of the C.M.U. at the factory is disproved by the evidencethat the branch union was formed in August 1970 after theincident.on the 1st July, 1970. The President in his order correctlyrejected this suggestion of victimization.
There was also reference to “ vagueness ” in the order of thePresident in connection with washing the walls in the manage-ment’s letter of interdiction as well as in the domestic inquiry.However, in the management’s letter dated the 13th July, 1970,there is a clear reference to “ the washing of the walls andcleaning of your department ” as part of the workers’ normalduties (vide R5). In the domestic inquiry notes R9 there are
COLIN THOME, J.—Iteckill di Colmun Lid. v. lJeiris
pointed references to the washing of walls in the Disprin Unit.So that here again the President's inference was contradictedby the evidence.
According to Dissanayake, shortly after 7.45 a.m. on 1st July,1970, he saw the applicant washing the wall after he had cleanedthe foiling machine which was only two feet from the wall.Dissanayake also stated that the applicant had finished cleaningthe lower portion of the wall. The President without adducingany cogent reasons held that this part of Dissanayake’s evidencewas inexplicable, and cast grave doubts on the reliability ofDissanayake’s evidence and that “ it strikes at the very root ofthe issue between the parties. ” We are unable to agree with thisconclusion. In our view it lends strong support to the case ofthe management that it was one of the duties of the workers towash the walls of the Disprin Unit.
It is true that there were no Standing Orders or any writingdirecting the semi-skilled process workers to wash the walls.For that matter there were no Standing Orders for them to cleanthe machines they used.
On this issue we have to consider the oral evidence, thedomestic inquiry notes R9 and the correspondence between theparties in order to draw a reasonable inference.
We are in agreement with the dictum in “The Law of Masterand Servant” by F. R. Batt—(5th Edition)' at page 52, whichstate's :
“In constructing a contract of service the Court will, ifnecessary, supply an implied condition as to reasonablenesswhere duties are not fully defined. "
Mr. Subasinghe also submitted that an appeal from the orderof the President of the Labour Tribunal could only be madeon a question of law and not on facts- He submitted that. theSupremo Court can only interfere within narrow limits.
In the case of D. S. Mahawithana v. Commissioner of InlandRevenue, 64 N.L.R. 217 at 222, H. N. G. Fernando, J. followingthe decision in Naidu Si Co. v. Commissioner oj Income Tax,(1959) AIR 359, held “ that the Supreme Court could consider thecorrectness of the inference drawn by the Board of Review asto the assessee’s intention only :
if that inference had been drawn on a consideration of
inadmissible evidence, or after excluding admissible andrelevant evidence ;
if the inference was a conclusion of fact drawn by the
Board but unsupported by evidence ; or
COLIN THOME, J.—Reckitt cfc Cohnan Ltd. v. Pciris
if the conclusion drawn from relevant facts was notrationally possible, and was perverse and should there-fore be set aside. ”
In the case of Ceylon Transport Board v. W. A. D■ Gunasinghe72 N.L.R. 76, Weeramantry, J. followed the statement of principlemade by Lord Normand who in Inland Revenue v. Frazer, (1942)24 Tax cases 498, where he observed that:
“ In cases where it is competent for a Tribunal to makefindings of fact which are excluded from review, the Appeal
Court has always jurisdiction to intervene if it appears
that the Tribunal had made a finding for which there’ is noevidence or which is consistent with the evidence andcontradictory of it. ”
This latter decision has also been followed by the Court ofAppeal in Brooke Bond (Ceylon) Limited v. Tea, Rubber andCoconut and General Produce Workers’ Union, 77 N-L.R. 6.
We are in respectful^ agreement with the above dicta whichwe have applied to the present case.
In the instant case, the case of the management as stated bythe three witnesses, Balasuriya, Dissanayake and de Mel, hasbeen supported by the admissions of the applicant-respondentin R9, and R9 at the same time contradicts the evidence of theapplicant-respondent on vital matters.
Mr. Subasinghe submitted that the applicant-respondent wasoverawed at the Domestic Inquiry. This is not borne out by theevidence of the applicant-respondent, as recorded in the DomesticInquiry transcript R9 shortly after the 1st July, 1970. There hasbeen no finding on this matter by the President as it was notseriously adopted at the Labour Tribunal inquiry. The workerrelied heavily on the assertion that R9 was a fabrication. Hecannot have it both ways.
We hold that the finding of the President of the Labour Tribunalwas not supported by the evidence in this case on. several vitalissues and was inconsistent with and contradictory of theevidence.
The appeal of the Employer-appellant, is accordingly allowedand the order of the Labour Tribunal is set aside. The application-of the applicant-respondent is dismissed.
The applicant-respondent will pay Rs. 105 to the Employerappellant as costs.
Thamotheram, J.—I agree.