038-SLLR-SLLR-1994-V2-S.-SHAFEEDEEN-V.-THE-SRI-LANKA-STATE-PLANTATIONS-CORPORATION.pdf
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S. Shafeedeen v. The Sri Lanka State Plantations Corporation
357
S. SHAFEEDEEN
v.
THE SRI LANKA STATE PLANTATIONS CORPORATION
SUPREME COURT.
P. S. DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 18/93.
C. GALLE APPEAL NO. 70/92.
L.T./NO./4/M/7051/87.
NOVEMBER 18, 1993.
industrial Dispute – Employment on probation – Industrial Disputes Act, (Cap.131) sections 31(b) (4), 31(c) (1)- Bona tides.
Whilst the management is entitled to terminate the services of a probationerwithout adducing any reason, it is open to the Industrial Tribunal to enquirewhether the order of termination has been effected in the bona fide exercise of itspower conferred by the contract; and where the impugned termination is malafide or so capricious or unreasonable as would lead to the inference that it hasbeen passed for ulterior motives and not in bona fide exercise of the powerarising out of the contract, it is open to the tribunal to interfere with the order ofthe management and to afford proper relief to the employee.
Even though a decision has to be just and equitable whether or not the workmanis a probationer, the common law rights of the employer in respect of aprobationer, cannot be totally disregarded; and no rigid rule can be laid down thatwhere the termination of a probationer's service is on a specific allegation, aformal charge and a domestic inquiry is a prerequisite to a valid termination.
Failure to account for 10 rolls of barbed wire improperly taken into his custody bythe workman was a good ground for termination of a probationer's serviceswithout a formal charge and a domestic inquiry.
Cases relied on:
Moosajees Ltd. v. Rasiah [1986} 1 Sri LR 365 (C.A.)
Liyanagamage v. Road Construction & Development (Pvt) Ltd., S.C. AppealNo. 3/93 S.C. Minutes of 23.8.1993.
Utkat Machinery Ltd. v. Santi Patnaik AIR (1968) S.C. 398,400.
APPEAL from the judgment of the High Court of Galle.
Faiz Musthapha P.C. with S. Jayawardene for appellant.
Shirley M. Fernando P.C. with Miss Hyacinth Fernando and HamiltonAmerawickrema for respondent
Cur. adv. vult.
Sri Lanka Law Reports
[1994] 2 Sri LR.
358
January 18,1994.
KULATUNGA, J.
The appellant was employed by the respondent (Sri Lanka StatePlantations Corporation) as an Assistant Superintendent on 05.11.85.In terms of his letter of appointment (P1) his appointment was subjectto one year’s probation. In the normal course, the appellant wouldhave been confirmed in his appointment by the end of 1986.However, it would appear that he had not been so confirmed andhence continued to be a probationer when by a letter dated 08.01.87(P2) his services were terminated on the ground that he was nottrustworthy in view of the fact that he had failed to account for 10 rollsof barbed-wire. His application to the Labour Tribunal for relief wasdismissed and an appeal therefrom was dismissed by the HighCourt. Appellant now appeals to this Court.
The letter of termination (P2) states that the appellant wasAssistant Superintendent, Andapana Estate; that investigationsrevealed that there had been 06 full rolls and 02 half rolls of barbed-wire in stock; that the appellant had purchased a further 10 full rolls,out of estate funds; that he kept the barbed-wire at his bungalowinstead of in the stores on the estate where it should have beenstored and notwithstanding the fact that it was not one of hisfunctions to have custody of such goods; and that at the inspectionconducted it was revealed that he had only 01 1/2 rolls of barbed-wire when the correct balance should be 11 1/2 rolls. The letterfurther states that the appellant’s explanation for the shortage of 10rolls of barbed-wire cannot be accepted; and that his probationaryservice is terminated with immediate effect as he had betrayed thetrust and confidence placed in him.
At the inquiry before the Labour Tribunal, the respondent calledevidence. The appellant did not give evidence; nor did he allege thatthe termination of his services was mala fide either in his applicationor in the course of cross-examination of the respondent’s witnesses.Nevertheless, the learned President of the Labour Tribunal states thathe went into inquiry to satisfy himself as to the presence of anyelement which would taint the termination with mala tides orvictimisation. His finding is that the available evidence does not showthe existence of any facts which would establish mala tides or
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S. Shafeedeen v. The Sri Lanka State Plantations Corporation
(Kulatunga, J.)
359
victimisation. On these facts, the Labour Tribunal dismissed theappellant’s application, on the authority of the decision in MoosajeesLtd. v. Rasiah where it was held that the employer was not bound toshow good cause where he terminates the services of a probationerand that the tribunal cannot sit in judgment over the decision of theemployer; and that it can examine the grounds of termination only forthe purpose of finding out whether the employer had acted mala Me■ in doing so.
The appellant appealed to the Court of Appeal. The said appealwas transferred to the High Court of Galle in terms of section 12 ofthe High Court of the Provinces (Special Provisions) Act, No. 19 of1990. Both before the High Court and in this Court the grievance ofthe petitioner appears to arise from the fact that in applying theprinciple laid down in Moosajees case (supra) the Labour Tribunalsaid;
“Since it is clear that the applicant’s post was subject toprobation and since he remained a probationer even on thedate of the termination of his services, the Tribunal cannotconsider whether the termination of his services wereunjust and inequitable; malice or victimisation was neitheralleged nor proved by the applicant” (emphasis is mine)
Learned Counsel for the appellant submits that under section31(b)(4) of the Industrial Disputes Act, the tribunal is not bound bythe provisions relating to termination, laid down in the contract ofservice and that furthermore, section 31(c)(1) empowers the Tribunalto make an order that may appear to it as "just and equitable". Hencethe President of the Labour Tribunal was in error in applying theprinciple in the terms quoted above. Counsel submits that thedecision in Moosajees case (supra) has by its failure to considersection 31(b)(4) of the Act, denuded the rights of a probationer asagainst a confirmed workman when in the light of the definition of^workman’ in section 48 there is no justification for doing so; that theHigh Court erred in giving a restrictive interpretation to section31(b)(4) of the Act; and that the correct principle is that both in thecase of a probationer and a confirmed workman the employer mustprove to the satisfaction of the Tribunal that the termination ofservices is justified. Counsel drew our attention to the observation of
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Sri Lanka Law Reports
[1994] 2 Sri L.R.
the High Court Judge that ’ … it may be that section 31(b)(4) of theAct has a very restrictive meaning" and submitted that this view iscontrary to the provisions of the Industrial Disputes Act.
While there is some justification in the appellant’s objection to theparticular formulation of the principle by the Labour Tribunal l see noserious error in the decision of the Tribunal dismissing the appellant’sapplication, on the facts and circumstances of this case. As regardsthe observations of the learned High Court Judge referred to above,even assuming that the said observations are open to objection, l findthat the High Court Judge has addressed himself correctly to thequestion before him when he specifically referred to section 31(c)(1)and stated that under that section “The Labour Tribunal must makean order in equity and good conscience acting judicially". He addedthat in the light of the facts before him he saw no reason to interferewith the decision of the Labour Tribunal.
I am also of the view that there is no error in the decision inMoosajees case {supra). That decision has not varied therequirement that it is the duty of the Labour Tribunal to make a justand equitable order In Liyanagamage v. Road Construction &Development (Pvt) Ltd. m this Court held (adopting the decision inUtkal Machinery Ltd. v. Santi Patnaik ® that whilst the management isentitled to terminate the services of a probationer without adducingany reason, it would be open to the industrial tribunal to enquirewhether the order of termination has been effected in the bona fideexercise of its power conferred by the contract; and where theimpugned termination is mala fide or “so capricious or unreasonableas would lead to the inference that it has been passed for ulteriormotives and not in bona fide exercise of the power arising out of thecontract", it is open to the Tribunal to interfere with the order of themanagement and to afford proper relief to the employee. Thedecisions in Moosajees case (supra) and in the judgment of the HighCourt which affirmed the order of the Labour Tribunal are within thelaw as so stated.
In his written submissions the appellant’s Counsel submits thatthere is no proof of the allegation against the appellant and that theabsence of a charge sheet and a domestic inquiry raises "substantial
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S. Shafeedeen v. The Sri Lanka Stale Plantations Corporation
(Kulatunga, J.)
361
questions pertaining to the mala fide motivations of the respondent".This submission cannot be supported either on the basis ofprecedent or in the context of the rights of probationers. Even thougha decision has to be just and equitable whether or not the workman isa probationer, the common law rights of the employer in respect of aprobationer cannot be totally disregarded; and no rigid rule can belaid down that where the termination of a probationer’s service is on aspecific allegation, a formal charge and domestic inquiry is aprerequisite to a valid termination.
For the foregoing reasons, I affirm the judgment of the High Courtand dismiss this appeal, but without costs.
G. P. 8. DE SILVA, C.J. -1 agree.
RAMANATHAN, J. -1 agree.
Appeal dismissed.