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RANASINGHE. C.J.: TAMESIAH. J. AND AMERASINGHE. J.
S.C: APPEAL NO. 47/86C.A. NO. 34/80LT NO. ’ /1 '.038/74
-OCTOBER 3f AND NOVEMBER 1. 1988. .
Industrial Dispute — Evaluation of evidence — Question of law — Review ofevidence by Appellate Court — Wrongful termination from a Bank’s' Service —Loss of confidence — Selective punishment Nature of awardable relief.
■ At the relevant,time the. appellant was the Officer-in-Charge of the CorporateDepartment ;of the respondent -People's Bank while one P.M.P. Peiris was theOfficer-in -Charge and .’Ledger Officer of the Savings Department.' During the. lunch hour (1 2 noon to T.00 p’.m.) the appellant covered Peiris' duties as LedgerOfficer. After interdiction on T-1.7.1971 the appellant was On 2,4.5. T972 served. with, a charge shedt accusing him on seven counts mostly of fraud and. fraudulent withdrawals from the Savings Bank when functioning as the LedgerOfficer at Duke Street. A domestic inquiry was held and the appellant wasexonerated. Ari inquiry by the Criminal Investigation Department failed to.pinpoint any criminal-involvement on the part of the appellant Yet on 5.6.1974
SCSnhamparanathan v. People's Bank (Thambiah. J.)
the appellant's services were terminated with effect .from 220.127.116.111. Theappellant sought relief from the Labour Tribunal — Reinstatement with backwages or compensation for loss of career and pension. At the Labour Tribunalthe Bank made seven allegations against the appellant but this time accused himmainly of dishonest participation. In its written submissions the Bank c'onfineditself to four allegations– Three of dishonest participation in fraudulentwithdrawals and one of'unauthorised possession of a Savings Bank Pass Book.The L. T. President was satisfied with the proof on two.of these charges ofdishonest participation and in addition he held as proved a charge of negligentlyauthorising a payment which even the Bank had jettis'oned at the stage of written,submissions. In addition he made no definite finding on the,, charge of.unauthorised possession of a Savings Bank Pass Book.
After a delay of nearly one year he held that the.appellant was not directly guiltyof fraud or fraudulent transactions, but his condyct was hot absolutely aboveboard and he was not a fit and proper, person to be employed in a Bank andtherefore termination of his services was for a good cause. The ultimate groundof termination was loss of confidence.
In appeal the Court of Appeal accepted the findings'of the Labour Tribunal anddismissed the appeal. The appellant'appealed.to the Supreme'Court.
Failure to properly evaluate evidence or to take into account relevant
considerations, in such evaluation is a question of law and is.reviewable by anAppellate Court. ..'
The President of .the Labour Tribunal had failed to take into account
relevant items of evidence favourable to the appellant and his finding of guilty'iserroneous and untenable. The finding that though the appellant was not directlyguilty of fraud or fraudulent-transactions, his conduct had not been above boardis inconsistent vyith and contradictory to his' earlier findings of dishonestparticipation.•
Loss of confidence has two aspects in' Labour Lavv: .,
Lpss of confidence may justify termination by the employer.
Loss of confidence may be a circumstance from which a Court mayconclude that reinstatement is not the appropriate relief, despite afinding that, the termination is not justified.
Though theoretically there is no restriction as to the class of employee in respect’of. whom termination of employment may be effected on the loss of confidence,it usually-applies in respect of employees, who hqjd positions of trust andconfidence such as accountants, cashiers and watchers or who perform apertain degree of responsible work.
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On the first aspect, though a regular charge sheet cannot be prepared and anopportunity to meet it given yet it is perfectly open to the employer to terminatethe services of an employee whose every loyalty to the employer was suspecta®d there were more than reasonable grounds to entertain the suspicion.
On the second aspect though in a case of wrongful dismissal the'normal remedyis reinstatement there are circumstaces in which a Tribunal will be entitled in itsdiscretion to order compensation in lieu of reinstatement like loss of confidencein the employee who occupied a position of confidence or reasonable suspicionfalling short of being a sufficient ground' for termination but a relevantcircumstace on the question of reinstatement.
It was not the Bank's case that.the termination was for reasonable suspicion
and -loss of confidence. The President, of the Labour Tribunal has clearlymisdirected himself in'iaw when he finally concluded-that the termination wasfor good cause as. the appellant's conduct was not above board and he (theappellant) was not-a fit person to be continued in employment as he holds aposition of confidence.••
Peiris too was interdicted along with the appellant. Although Peiris admittedfraud in .respect of Pass Books and two fraudulent cheque transactions he wasreinstated and demoted. On the-other hand the appellant though exonerated inthe domestic inquiry was dismissed. The action of the Bank was clearlydiscriminatory. Per tambiah -J.: "A Public Institution like the People's Bank cannotafford to be selective in its punishment of two officers holding the same rank in.
the same Institution".
. -(6) The appellant, was dismissed on 5. 6. .74. He applied.for relief to the LabourTribunal on 23. 7. 74 and the President delivered his order on 7. 1. 80. — 5’Viyears later taking nearly .one. year for his order- after conclusion of the evidence.
Per Tambiah-J’: "The tragic feature in this case is the inordinate delay in thehearing of this case in the Labour Tribunal and in the delivery of its order."
(7) ■ The just and equitable order -should be immediate reinstatement with all■ arrears of salary from' 1.7.71 (less receipt's) and other' benefits including retiral
.benefits as; if there was no break in service.
(8) The strange features'in .regard to this charge are that the relevant vo'ucherfor a payment.of Rs. 4500/- is-missing. the Bank did not cal.l Peiris.'the Savings'. -Ledger Clerk-'and. the Cashier-.'
_PerTambiah d:."Was-the Respondent Bank 'staging Hamlet not only without theprihce of Denmark.; but. without the'other members of'the Royal Household aswell?" ■
Sithamparanathan v. People's Bank'fTambiah. J.)
Cases referred to:
V. Collettes v. Bank of Ceylon- — S.,C. Reference No. 6/82 —: S-£-•Minutes of 5.11.82,.
.' 2. > .
Ceylon Transport Board v. Gunasinghe — 72 NLR 76. 80-
Ceylon transport Board v. Thurigadasa — 73 NLR 211 • /•
Gratiaen Perera v. The Queen — 61 NLR 522
"Jubilee Mills Ltd. v; Baburae Cffintamen — 1 954 (1) LL. J-' 807.
Estrella Batteries v. Workmen — 96 ('1950) 1CR 206
7.'Assam Oil Co. Ltd. v. Its Workmen (1960) 2LL. J. 745 (Mad.■ ' Prad.)
• 8. • .
Madhukar v. Bhjlai -Steel Project. —(1966) 2LL.J. 748 (Mad.Prad).
^APPEAL from judgment of the Court of Appeal.
-M. A. Mansoor with A. P. Niles and K. S. Ratnavel for the ApplicanVAppellant.
H. L. de SiJva P.C. with S.C: Crpssette-Jhambiah for'the Employer-Respondent.
. Cur. adv. vult.
December 05.'1 988 ,
The applicant-appellant joined-the Bank.of Ceylon,, in the'year' 1954.'as a Grade IV officer.'He joined the People's Bank, i.e., theemployer-respondent, on Tst January, T963, as a Grade IVofficer, and at the time of his dismiss,al"from service, he wasledger officer in charge' of. Government Corporations, and-Co'-operatives Accounts, where in- 1971,_'a turnover of Rs,
– 1 3,000,000/- was a_veraged a day at the D.uke Street Branch of' the People's Bank. .During the. entire period as officer-in-rchargeof the Corporate'Department, .there was not even a suggestion-made that. his':work was found to be- remiss on a single occasion.At the relevant time, the officer-in-.charge and ledger officer
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of the Savings Department was one P. M. P. Peiris. The thenManager of the Duke Stree.t Branch, one D.G. Perera. testified tothe procedure for withdrawals of funds from Savings Accountsas follows: The customer filled a form called the WithdrawalVoucher', and handed same with his Pass Book to one of the twocashiers at the counter. One of the cashiers was oneNanay^kkara and the other, one Appuhamy. After verifying theentries on the withdrawal voucher against the entries on the PassBook, the cashier endorsed a token number on the withdrawalvoucher and handed the token to the account holder and got hissignature on the reverse of the voucher, and entered the dateand time of receipt of the withdrawal voucher, the amount, theaccount number and,, the name of the account holder in hisScroll Book. He then placed the withdrawal voucher and the PassB,ook in a tray and. one of.the peons was expected to hand overthese documents to the Savings Department Clerk. At this timethere were two clerks, one Cyril Fernando and one Muzamil. Iffound to be in order, the’clerk made the necessary entries in thePass Book and in the Customer's Ledger Sheet and put them upto the Ledger Officer of the Savings Department. The Ledger• Officer checked to see whether the customer's signature talliedwith his specimen, signature. The specimen signature card waskept in a cabinet and the. key to this cabinet was retained byPeiris. the Ledger Officer. If the signatures tallied, the -LedgerOfficer placed the 'paycash' stamp on the withdrawal voucherand signed on the voucher and for the balance in the Pass Bookand also initialled the Ledger-Sheet. The peon, then, took thevoucher and Pass book back to the Cashier who checked to seewhether, it has been"authorised for payment and if-so. called outthe token number and after he got the . customer to sign on thereverse of the voucher and having checked whether the.signature tallies with■ the signature at the time of presenting thevoucher, handed, over the cash to the customer along with thePass .Book..;'
It . was. the Manager's evidence that withdrawals over Rs.5.000/— had; to .be approved and signed by. the BranchManager and the Ledger Officer: below Rs. 5.000/—, thepayment had to be authorised by the Ledger Officer and whilst
Snhamparanathan v. People's Bank (Tambiah. J.)
the cashier is not required to check the identity of the accountholder for payment of sums; under R$. 1.000/— he was'boundto do so where the voucher is for a ,sum of Rs.. 1.000/— andabove.
At the end of the day. the cashier was required to enter all theday's, withdrawals into his adding machine and .balance thepayments with the withdrawal vouchers; and duplicate of theadding machine print out. called a tape.- and all the vouchers-were forwarded to the Proof-Department, which in turn checkedthe tape and the vouchers and again balanced the day'stransactions and made a tape of. its own, arid forwarded- all thevouchers and the duplicate of .the tape to the Ledger Officer. Hein turn again checked- each voucher against the respective ledgersheets and , again balanced the -payments with the vouchers,entered, all the day's transaction? in a Summary Sheet and tookall'the-vouchers and Summary Sheet to -the Manager. TheManager ■ examined the Vouchers to see whether correctauthorisation had been made and thereafter the. bundle ofvouchers was kept in the vault which was operated by a dualcontrql system.. /• o..
It was the Manager's evidence that – if there was a voucher orvouchers missing from the bundle, it would have been detectedby the Proof Department and also by the Ledger Officer at thestage he balanced, the accounts of the day and prepared theSummary Sheet. •..
It is in. evidence that when the Ledger Officer Peiris of theSavings Department went out- for lunch between. 1 2 noon and1.00 p.m. the applicant-appellant covered, his work and attendedto the withdrawal vouchers that were presented-during tha.t timein addition to his own work.■•
On ,11th July, 1971.. the applicant-appellant was interdictedand later, served with a Charge Sheet dated 24.5.1-1972.-containing the following charges:^-
. "While working as a Ledger Officer at Duke Street Branch ofthe Rank you did;—
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1 Authorise payment of the fraudulent withdrawalvoucher of Rs. 4.5007- on 27.5.71 from SavingsDeposit A/c. No. 9702.
Acting jointly of severally commit fraud in a sum of Rs.4.500/- on 27.5.71 on savings deposit account No.9702.
Have unauthorised possession on or about 1-.6.71 ofsavings account pass book No. 10237 belonging toSydney-. Amarasinghe of 343A. Salawa Road.Embuldeniya; Nugegoda.
Authorise payment of Rs. 995/t on savings account
No. 10237 on 4.5.71 in the absence of necessaryentries in the'relevant pass book.•
’^Acting jointly or severally, attempt to commit the• fraudulent Withdrawal of Rs. 4.000/- on 6.6.71 from
savings acco.unt No. 10043 by using an unissued passbook originally bearing the machine stamped number1 0237.earlier reported lost from the bank, and altered'to-.rea'd as-10043. 1
6 -. Induce Mr. M. H..L. Gilbert, a Grad.e VI employee of the
Bank to keep away from work on the pretext of beingsick on 25.5.71.. which was the day of the fraudulent
vyith^ira.wal of- Rs. 4.500/- on Mrs. Wong's savings' deposit account No.'1.0043:.
. 7.. Acting jointly or- severally commit fraud in a sum of Rs.
4.500/-on 25.5.7 Von .savings account No. i 0.043. •
• Except'for charges 3 and 4, the gravamen of the complaintagainst the' applicant-appellant would appear to.be that, he alone.. or jointly with others committed-certain frauds and attemptedfrauds in the Savings Department. The applicant-appellant wasexonerated at the domestic inquiry. It is also in evidence that the "- CID which, investigated into the alleged frauds were unable to-■ '■find the'culprit. But he.was not reinstated. He was interdicted on.
Sitlaamparanathan v. People's Bank (Tambiah: J.). I3h
11.7:71 and was on no-pay and was placed on half-pay from
1.73 after he was exonerated 'and'-later his. services wereterminated by .the Respondent Bank' on- 5th June 1974 witheffect from-1 1 th July. 1 971,
It would appear from the evidence of the Manager Perera, thatPeiris. the Ledger.Officer in charge of the' Savings Department,about the time that the acts of misconduct alleged in the ChargeSheet were taking place, had hirpself issued two cheques. Nos".A63025 for Rs'. 500/— and A63Q,26..for Rs. 280/— fifom'acheque book belonging, to some other account holder, affixedthe 'Staff-Account' frank, and signed the two cheques. This wasat a time when his own account was; closed a,hd he.had, nocheque book. Both cheques were returned by the Bank, one.bearing the endorsement "drawer's signature differs", and the ■other "cheque not issued to drawer". In the opinion of the
Manager this "is a very' grave offence.". The Manager stated■further that Peiris was interdicted and served with a charge sheet
and that whilst, under interdiction he admitted to • a- fraudconcerning a Savings Pass Book; that after inquiry he-wasreinstated-and later demoted from his grade to one grade.belpw.for 3 years denied his promotion and later retired. •
The applicant-appellant complained to ithe Labour Tribunal thathis services were unreasonably, unjustly arid illegally terminatedand sought the reliefs, inter alia, reinstatement with back wagesQ or compensation for loss of career and pension.
The Respondent Bank. ;in its ansvyer. sought. To' justify thetermination of'services in the'foll'owing terms:-—‘•
"The applicant was dismissed from service upon being foupd.guilty of the following acts;—
-dishonest , participation in the fraudulent, withdrawal .of Rs,
4,5.00/- on 27th M.ay;-197T. iri respect of Savings DepositAccount No.'9702.
in the alternative with gross negligence in authorisingpayment of the said sum of Rs‘. 4.5,00/- from the saidaccount.
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dishonest participation in the fraudulent withdrawal of Rs.
4.500/- on the 25th May 1971 in respect of SavingsAccounts No. 10043.• –
dishonestly inducing N. H. L. Gilbert, a Grade VI employee ofthe Bank to keep away the day of the fraudulent withdrawal ofRs. 4,500/- from Savings Account No. 10043.
dishonest participation on the • attempted' fraudulentwithdrawal of Rs. 4,500/- On 6.6.71 in respect of SavingsAccount No.. 10043 by using an unissued Pass Bookoriginally bearing the machine stamped number 10237.
■ earlier reported lost from the Bank, and altered to read as10043.
unauthorised possession on Or about 1.6.71 of SavingsAccount Pass-Book No. 10237.
negligently authorising payment of Rs, 995/- on SavingsAccount- No. 10237 on 4:5.7 V in the absence 'of the
– necessary entries in the relevant pa'ss-book.'"
The statement, in the Answer .that t.he;.appli.c.ant-appellant wascism ssec from service is factually incorrect:., .
’/Whilst the original^,position of the Respondent Bank at thedomestic inquiry,was that the.applicant-appellant, singly and orjointly was the perpetrator- of the alleged frauds and attemptedfrauds, there was .change in its position before the LabourTribunal — that the applicant-appellant was only a dishonestparticipant in the alleged.frauds and Attempted frauds. _
The third position of the. Respondent Bank was set out in thewritten submission on his behalf where it.sought to justify thetermination' of -the applicant-appellant's employment ,on fourgrounds:—
t. .dishonest'"participation in the .fraudulent withdrawal of Rs.’ 4,50.0/-; from – the’ Savings .Deposit Account No. 9702.1 belooging.-to one’Gunarat'ne, on -the 2-7th.May, 1971.
Sirhamparanathan v. People's Bank (JSmbiah. J.)
■ dishonest, participation in the fraudulent withdrawal- of
Rs. 4,500/- in respect of Savings Deposit Account'No. 10043. belonging to one Mrs. Wong on the 25th ofMay. 1971,
dishonest participation in the attempted fraudulent
– withdrawal of Rs. 4.500/- on 6th. June. 1971. in respect of •Savings Account No: 10043 by using an unissued pass bookoriginally , bearing the machine stamped number 10237which had been altered to read, as 10043.
unauthorised possession; on or. about 1,6 71 ' of SavingsAccount-. Pass Book No. ' 10237 without the writtenpermission of the account holder (Edirisinghe)..
Thus the Respondent Bank jettisoned 3 charges, para (2).(b). (d). and (g). laid out in its answer and .amended charge (f)by the addition of the words "without the writtten permissionof the account holder (Edirisinghe)” and this was done afterthe conclusion of the evidence. Though-the. charges in, para .2(b). (d) and (g) were-abandoned, the President of the Labour■Tribunal with regard to 2(b) states that "it is not possible tostate that the .applicant was negligent, in authorising this. payment-in the absence -.of the voucher” and in respect ofCharges 2 (c) and (d) he states that the Respondent Bank has.not led . sufficient evidence- to establish .'the . guilt of the ■a-pplicanti-appellant.'■.' i
– In regard to ground (1.).above., the Respondent Bank.reliedon two- items of evidence. The Pass' Book bearing No. 9702. (Rl) is- the Pass Book of -Account Holder. EdirisingheAra.chchige . Gu.nara.tne. According" to ,R-1 / there . is nowithdrawal'by -the customer Gunaratne- on ' 27.5.7 1. Therelevant Scroll-Book (.Ft 5) ■ maintained by . tee..Cashier oh27.5.71 and a bundle'.of vouchers containing the relevantvouchers signed by the applicant-appellant on the same date.(-R4 -,(a) to R4 (c.)) were produced -in evidence. The applicant-appellant admitted , in- hi.s. .evidence , that Pe.irjs ' when . he'i n. Jt.iaJ led – the Ledger Sheets used the letter "P" and.-that heused the f.i.-gure '.'.7,4. -The Scroll Book-shows that from.
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12.15 p.m. to 12.45 p.m. on 27.5.71. the withdrawals on-savings vouchers R4 (a). R4(b). R4(c). R4(d). and R4(e) in respectof other accounts which have been presented to the Cashier atthe times 12.15 p.m.. 12.25 p.m.. I2.39 p.m. 12.40 p.rn. and
12.45 p.m.. have been initialled with the figure 7 . Theapplicant-appellant admitted that he authorised these payments.The Scroll Book shows that at 12.40 p.m. Savings Voucher inrespect of Account No. 9702 had been presented for thewithdrawal of Rs. 4.500/-.. but the relevant voucher is missing.
' The applicant-appellant denied that he authorised the withdrawaj.
of Rs. 4.500/-. The Respondent Bank wanted the Labour
Tribunal to drawthe inference that the missing voucher tendered
■ at 1 2.40 p.m. too was authorised by .the applicant-appellant.
The applicant-appellant’s evidence is that on this day therewere, four • other . officers who worked including oneWickremsekbra Banda, and it is his evidence that savingsvoucher R4(f) had been received at 12.49 p.m.. i.e.. between 12noon and 1.00 p.m: and was authorised by Wickremasekera .Banda.
1 It was his further evidence that at 1 2.40 p.m. that day he wasperforming his duties on the Co-operative Ledger seated in his. seat and the Savings Ledger Accounts were brought to him; thatsavings, withdrawals are not authorised according to the timethey are presented at the counter-and that vouchers presented ata particular time may be autorised for payment much later due toincomplete filling up. alterations, requirement of further; specimen signatures etc.
. The Bank Manager-. Perera: in evidence also stated that avoucher- presented at a particular -time may be paid even, later• than.a voucher presented after it. and that it depends on whattime the ledger, clerk pulls out the'relevant ledger and checks.
The applicant-appellant also stated that as the withdrawal of.Rs: 4,500/: was not a withdrawaj for'-Rs. 1,000/- or below, hewould: never have authorised payment on this voucher withoutreference .to the .specimen signature card that was in the lockedcabinet.. It is the Manager’s evidence too that the specimen
SCSnhamparanaihan v. People's Bank (Tambiah. J.)
signature card is in the cabinet, the key of which was in Peirischarge. The payments on vouchers B.4(a). R4(b). R4(c). R4(d) andR4 (e). which admittedly have been authorised by the applicant-,appellant, were all for payments, of Rs. .120/-. Rs. 50/-.. Rs.750/-.'Rs. 1,50/- and Rs. 1.5/-:
The second item of evidence relied on by the Respondent Bankis this:.
On the Ledger Sheet ,(R22) which related tp the Co-operativeSociety, the applicant-appellant conceded that his initial 7appears 10 times. The-Ledger Sheet (R2.) in respect of'SavingsDeposit Account No.-9702 on the face of it shows that on27.5.71'. Rs. 4.500/- .had, been debited and the balance Rs'.4600/25 has been' initialled with the letter "P". It was the case ofthe Respondent Bank that.the: applicant-appellant had convertedwhat was originally the figure "1"'info a"""P" in R2. To establishthis, the. Respondent Bank relied on the evidence and report ofthe Assistant Examiner .of Questioned Documents' of theGovernment Analyst's Department who stated in evidence that hewas asked to examine the Ledger Sheets (R2) and (R22) and toreport whether there was any evidence'of alterations in the initialagainst the entry, Rs. 4600/25. His examination revealed that anoriginal initial consistent with-"1" has-been written ’over and •altered to read "P": that the original initial "1" in the Ledger Sheet(R2) is consistent with the initials of .the person who initialledagainst the entries in thfe Ledger Sheet' (RJ22). ■■-
In the Ledger Sheet (R2) there is an earlier entry where thebalance.of Rs. 7,350/-'has-been initialled with the initial' "P"./Under cross-examination'-he' was asked whether this "P".looked.similar- to the against the balance Rs. 4.'600/25.'His answerwas thai he.would require-more specimens similaY to injdr'der -to come to'a conclusion. He-'furhte'r stated that he fs unable'to .say as to'Who is'the person who altered'J,7" into '"P". ' –
A. L. M. M'uzamil-, a cl.erk in the-Savings Department, who gaveevidence for the'. Respondent Bank. – under cross-examination,stated that there'1 was a voucher in respect-of. j be entry nr the.Ledger-Sheet (R2).with'regard to'thefwithdrawal of-Rs. 4.50QA• on 25.5.71:. that normally the-voucher-is placed in. the Ledge'rSheet-and sent to Peiris: that'Peiris gave him a voucher and
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asked him to keep it with him to be put in the bundle ofvouchers: that the initial against the entry in regard to thebalance of Rs. 4.600/25 after withdrawal of Rs. 4.500/- isPeiris'; that there appeared to be an alteration in respect of thatinitial: that.before the voucher was given to him. Peiris initialledthe Ledger Sheet, and gave it to him.
The applicant-appellant s Counsel, then, referred the witness tohis evidence at the domestic inquiry and asked:
"Did-you say this:
Q. Is the initial on the ledger sheet that of Mr. Peiris"?
A. It has'been altered. It was not originally there."
Muzmif was re-examined by the Respondent Bank's Counsel inregard Jto what he said at the domestic inquiry:
"Q. . The initials in the Ledger Sheet is Mr. Peir.is?
A. . It has been altered. It was not there earlier.
Q. Generally, withdrawal.vouchers are signed when payments, are made? •
jd At the. stage that payments are, made, the balance isinitialled?-; .
A. Yes..: .. •
Q. Is he the person who.made this entry? ..:
■ft was Manager Perera's evidence that .about two weeks afterthe-withdrawal of,..Rs. 4.500/r. Gunaratne. the holder of .therelevant Pass- Book "turned up at the Bank on a letter written byPeiris ,to call over with his Pass Bo^ok. Gunaratne had complainedthat Rs. 4.500/- had not been withdrawn by him and it was atthis stage it transpired that the relevant Voucher was missing,the writing of this letter is a contravention of the Rules of theBank as pnly the'Marfager or-the second officer of ..the Bank, one:Anton Fernando, -could .write such a letter.- and this' was one.matter, among .others, on- which Peiris .was charge sheeted. Inresponse to this -tetter, Gunaratne had turned up and his PassBo'ok- contained .no "entry in regard :to the'-.Withdrawal ofRs. 4:500/-.'''
SCSithamparanathan v. People 's Bank (Tambiah. J.).137
The Manager Perera further stated that when the bundle ofvouchers (R.4) comes, back-to the Savings Department from theProof Department. Peiris has to, check and take- over thevouchers. If a voucher was missing. Peiris would have discovered •it at that stage: Peiris had signed on the cover of R4 and at the.time he.signed, all .the vouchers were there; the last person whowould have handled the vouchers after they were bundled andbefore preparation of the summary was'Peiris; that at the time ofthe preparation of the' summary, if the voucher was not there.Peiris would have queried and when the'summary was.preparedthe vouchers were there and he woul.d.not have prepared thesummary without the. vouchers being there; that at np time didPeiris complain to him that any voucher was missing; that hecome to know that the voucher was missing, after the customer.Gunaratne called at the Bank;, that the fact that the summary wasprepared by Peiris and the bundle of vouchers was sent to himindicate that at that time, the voucher was there.
. It was also Muzamil s evidence that Peiris checks the summarywith the vouchers and that in the summary, prepared on 27/5,the'entry with , regard to Rs. 4.5000’/— was there ana Peirissigned the. summary sheet, that the voucher would, have beenthere when he checked, and it was. thereafter'that the voucherwas missing; that Cyril Fernando the other clerk told him that the.voucher was in the drawer'of Peiris: that Peiris took the voucherand gave it to him and that he kept it on his table and on 28/5the following day. he fo.und the voucher in the Ledger Book; .that .once it was entered in the summary, the voucher had to go into .the bundle and ought not to-be in.the Ledger-Book: that thevoucher.,bundle,of-27/5 was found on 28/5,on the table..of 'Peiris and thereafter it was missing; that the voucher was with .him'as .Peiris had, asked-hiroto keep it safely..' .;.
. . As regards this charge, the President of,the Labour Tribunal,only considered the ,tw.o items of evidence relied upon by the -Respondent Bank, viz, the time of receipt of this .voucher by thecashier ..and ,the. evidence of -the .Assistant Examiner'ofQuestioned Documents; and said-:
• "This voucher had been'presented at ;1 2:40 p.m. when the.applicant was acting for the permanent office/- The several
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vouchers which had been authorised before and after leadto the inference that this voucher too would have been
presented to him during this period Since the
evidence of the EQD is quite clear that the applicant madethe original initial on R2. I have no hesitation in acceptingthe version of the Respondent that there has been dishonestparticipation by the applicant in respect of thrs withdrawal."
As regards the second ground of termination, viz. dishonestparticipation in the fraudulent withdrawal of Rs. 4.500/- inrespect of Savings Deposit Account No. 10043 belonging to oneMrs. Wong on 25.5.71. the President of the Labour Tribunalstated that "not enough evidence has been brought.before the ,Tribunal for me to state that the applicant had participated in any•way in- respect of this charge."
The Ledger Sheet in respect of Account No. 10043 (R9) showsthat on 25/5/71. there had been a withdrawal of Rs. 4.500/-.leaving a balance of Rs. 4,350/-. It is the clear evidence of theRespondent Bank's witnesses, the Manager Perera. and Muzamil.that the initial "P" appearing against this entry is that of Peiris. –
The third charge relates to the attempted withdrawal of Rs.
4.000/-from the account of Mrs.-Wong on 6.6.71.
The witness Muzamil stated that on 6.6.71. it was theapplicant-appellant who brought the withdrawal voucher (R13)dated 6.6.71 bearing Account No. 10043 and the Pass Bookbearing No. 10043 to him; it was not part of applicant-appellant's duty to bring these documents, to him; he found theBank officer's signature in the right column just scrawled and hecould not identify the signature; he.asked. Peiris to check thesignature and Peiris told him "you just post it and give it .to me";he was not satisfied and he reported the matter to the AssistantManager and along with the Manager checked the signature,they found that Rs. 4.500/- had been withdrawn on-25/5 andfound the relevant voucher missing. ■'The token number wascalled out and no one came up. The Pass Book (R8) had themachine NO. 10237-which was scored off and the No. 10043was handwritten in red. '
Sithamparanathan v. People's Bank (Tambiah. J.j
Under cross-examination, he stated that according to theScroll Book (R5), the .'Pass Book- .(R8) was presented at- thecounter at 10.12 a.m. and. Peiris was present; that most PassBooks are machine numbered and Pass Books that have nomachine number are written by them arid, given; the signature’against the withdrawal of Rs. 4,500/- is not the applicant-appellant's; in the relevant Ledger sheet ,(R9), the- withdrawal ofRs. 4,500/- has been initialled by Peiris; when Pass Books arehanded over by custormers at the counter, the cashier at thecounter puts them into a tray and thereafterthe peon takes themand hands them to the ledger section; he cannot rememberwhether at; the time the applicant-appellant removed the PassBook from the tray,, a peon was there Or' not; unless .theapplicant-appellant had particular interest in that Pass Book, heneed not have brought it; normally when a friend of an officer pfthe Bank comes to remove a Pass. Book, they vyill .go up to theofficer in order to get their job quickly done..
'The genuine Pass Book (R7) issued to Mrs. Wong vyasproduced by the Manager. Perera. He stated that Pass Book (:R8)is a fake document; and the signatures appearing as'"Signaturesof Bank officials" are all forged signatures. According to the PassBook (R7), there does not appear to be any withdrawals made bythe customer; on 21.5.71, the customer had deposited Rs.7,000/- and on 1 3.3.71 a sum of Rs. 500/- and the applicant-appellant has signed against both deposits; on 21.5.71. thecredit, balance was Rs. 8,850/-. He also produced the relevantLedger Sheet (R9) according to which,,on 21.5771. the creditbalance is Rs. 8.850/- and the applicant-appellant has initialledthe entry, and the Pass Book bearing No. 102.37 (RIO) wasissued to one'Sydney Amarasinghe and this number in'(R 10) isthe same as the machine number appearing in the fake PassBook (R8K After investigations began _ into the fraudulentwithdrawals in respect of the S.avings.Accounts of Gunar,atne andMrs. ' Wong.; the .applicant-appellant s desk drawers weresearc.hed'and the Pass- Book (R10) was found in one of hisdrawers.
The Manager. Perera. _ under ..cross-examination, stated that'when a peon is not available at the counter to take the Pass
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Books and Cheques, the officer or clerk in charge of that subjectwill .take them: there were two counters and both countersaccepted cheques and pass books; the applicant-appellant wasdealing with current accounts and cheques and pass books; andif a- peon was not available, he would go upto the counter and' coHect the cheques and if there was a pass book, he would takethe pass book and hand same to the officer concerned and therewas nothing unusual about it. .
The Assistant ^Manager. H. A, Fernando, also gave evidence for'the Respondent Bank. He stated that Muzahnil brought the Pass'Book (R8) to him and he too could not identify the signatures on(R8). arid with the Manager's permission he examined thevoucher bundle of 25/5/71 and found the relevant vouchermissin-g. He asked Muzamil to call out the token number and noone turned up. '
When questioned by the applicant-appellantis Counsel, hestated that on-that morning Nanayakkara came and told him "Iknow Mrs. Wong. Pay." He said that he knew the party.
The applicant-appellant wa.s questioned as regards this charge.He-conceded that in the pass book (R7). he had initialled thebalance against the dates 13.3.71 and 21.5.71. He had not seenpass book (R8) before, and came to know that it was a forgeddocument in the course of the inquiry;, his signatures are not in,R8.. nor that, of ’Petris'. He was working-on 25.5.71. when Rs..4,-50.07- was withdrawn: In the Ledger Sheet (R9); his initialappears against the dates 2-115.71. and 1 3,3.71; Peiris' initialappears against the withdrawal of Rs. 4.500/- on 25.5.71. i
i As.to how the Pass Book (R10) came to be found in his drawer,the -applicant-appellant .stated that Sydney Amarasinghe resided• next-to his house and he wanted to obtain a loan of Rs; 1,000/-.He introduced his friend’to the Bank as a. customer. .One couldget a loan on their income. The relevant ledger sheet shows thatAmarasinghe opened' his account on 29.3.71 with a cashd.ep'osit of.RsV'5/-. His .initial' appears against the deposit'of- Rs.5/ . He signed for the Pass Book and handed'it to Amarasinghe.
SCSithamparanathan v. People's Bank (Tambiah. J.)
His account was credited with .a Joan of Rs. 1,000/-. On 4-5.71-Amarasinghe withdrew a sum of Rs. 995/t. He.approved thepayment of it on R12, the withdrawal voucher, and initialled it-and retained the Pass Book for. the entries to .be brought up todate. When he came to obtain the loan; Amarasinghe left'the.Pass Book with him to enable the entries to be made. As he wasresiding close to his house, he could have brought thd entries upto date and taken it to his house, Before he c6uldl:bring the PassBook up to date "something happened, and hie handed'the bookto. the Inspectdr". Tp the question "Why d’id-.you not bring the.entries up to date?", his answer was "It may be that, he was in ahurry or that I was very busy". Jn his evidence.;he stated1,that"there were thousands of current accounts and savings i worked,on", Although.(he regained thetbook. the particulars are in the'ledger (R1.1);,rin gvery case any Withdrawal from the savingsaccount is done with reference to the outstanding balahce.in theiedger. He had come a.cross Pass Books, with handwrittennumbers. He had no control and,it was-Peiris who dealt with PassBooks. ;,_■• c…-
It was Muzamil's evidence that .the account of Amarasinghewas introduced By the .applicant-appellant;,-.that he, wrote theparticulars on PassBook.(R10) and made the necessary entries-,in the Pass'Book Tssue-iRegister,>(R20);- the. applieantTappeflant.'signed ,the Register-and was given the Pass Book-; that Pass-Book(R1-0) is a genuine Pass Book; that the customer Amarasinghewas not in the Bank.on-that:day^ and. this.,practice of>handingover ai Pass Book to' a-Bank Officer ©mbehalf: of the customer isdone andahere ismo Bank Circular prohibiting it; there was, jiocomplaint .from-Amarasinghe or anybody else that the>appiicanlappellant was in unlawful possession or unauthorisedpossession'of this Pass Book.: -•■ c . i :
The Bank-Manager'. Rere'ra. stated that the withdrawal voucher,for Rs. 995/- is not'missinguand it»i-s a genuine withdrawal; thatPass Book (R10) "is a'-genuine book, and all , entries in/it aregenuine; ah'di-that there:'is nothing'unusual for a. customer tos'end the Pass Book through- an officer to bring the Book up todafe;;that the .ledger, Clerkhas'tocheck.the Ledger Sheetto see '■whether there is money in'the account and, that'tlie L edger is the
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real account: that the Ledger entries may differ from the entriesin the Pass Book; that Amarasinghe has made no complaint inregard to his Pass Book; and that the Pass Book was found in theapplicant-appellant's drawer on 29.10.71, and he cannot keepthe Pass Book with him unless he has the customer's permission.
The President, Labour Tribunal, found the applicant-appellantguilty of this charge. In his order, he states that "this was afraudulent transaction and the applicant-appellant's participationin it is easy to see". The'factors that, weighed with him were:(1) the Pass Book (R8) with a machine No. 1 0237 struck off andthe No. 10043 handwritten is not a genuine one. (2) Pass Book(RIO) obtained by the applicant-appellant for his friendAmarasinghe has no machine number but a handwritten number10237, (3) the bogus book (R8) and the voucher (R13) werebrought to Muza mil- by the applicant-appellant. Muzamil statedthat ."unless he had a particular interest in the Pass Book, heneed not have brought it." The applicant-appellant has given noexplanation as to the reason vyhy he handed this document tothe Ledger Clerk, (4) when the token-number was called, nocus'tomer.turned up.
. The charges set out in para;2 (f) and (g) of the RespondentBank's answer related to the Savings account Pass Book No.10237' of Sydney Amarasinghe. Though in its written. submissions, the'Bank: abandoned the charge set out in para 2. (g). ■ the .’President-'of the . Labour Tribunal, except for a barestatement that the'- Pass Book (R10) was found-in the drawer of• the' applicant-appellant, has not arrived at a finding on the■charge relating tQ1'. unauthorised possession of R10, which.theBank asserted as the. 4th charge in its written submissions: In any-. event, the'applicant-appellant has given a sufficient explanationas'to why it was in his drawer — that Sydney Amarasinghe leftthe' book with him.to post the entries and bring the pass book upto' date. There is-the further evidence of the Bank-Manager Pereraand the Savings Ledger Clerk Muzamil that there was nothingunusual for a bank-officer c.ollecting-.arPass Book on.behalf of a'customeporjor a.customer; to send a pass book through a bankofficer .in order to .bring .the Pass Book up to date. On theevidence, the applicant-appellant has to be exonerated on thecharge.of: unauthorised possession of Pass Book (R10).
SCSithamparanathan v. People's Bahk (Tarribiah. J.) .
As regards the charge of negligently authorising payment ofRs.995/- on 4.5.71.. in the absence of necessary entries inthe Pass Book (RTOj. admittedly the applicant-appellantauthorised the payment of Rs.995/- by initialling thewithdrawal voucher (R12). It is common ground that thiswithdrawal was not reflected in the Pass Book. The President.Labour Tribunal, in his order states "the applicant hastendered no explanation as to why he failed to bring the PassBook up to date. According to the evidence of the Manager, itwas not in order to approve a withdrawal without theaccompanying Pass Book. The applicant's conduct is contraryto the practice prevailing in the Bank and therefore he is guiltyof the charge of negligence in this respect" -’
The charge as framed in the answer of the Respondent Bankwas jettisoned by it in its written submissions, but. notwithstanding this, the President. Labour Tribunal; proceededto consider the jetsam thrown out by the. Respondent Bank and.found the applicant-appellant guilty of this’ charge. In anyevent, the charge was. that the applicant-appellant negligentlyauthorised the withdrawal of Rs. 995/-,. in the absence ofentries in the Pass Book. It is’the evidence of both the BankManager and Muzamil that Pass Book (R10) is a genuine PassBook; that the:relevant withdrawal voucher for Rs. 995/- is notmissing and the withdravyal is reflected in the Ledger Sheet(R1 1) and all entries therein’are genuine. The President of theLabour Tribunal, however, has found the applicant-appellantguilty of. not following a banking practice, viz. approving awithdrawal without the accompanying Pass Book, a charge notalleged either in the Charge Sheet, the answer or in the writtensubmissions of the Bank. There is the definite evidence of theManager Peiris that the Ledger Sheet is the real account vyith.reference to which withdrawals’are made and that the entriesin the Ledger may differ from the entries in a Pass Book. Thewithdrawals are-authorised for payment by reference to Ledgerentries and not to entries in the Pass Book: It seems to’me thatthe Respondent Bank dropped this charge’ in view of thisevidence. The finding of the Labour Tribunal cannot standhaving regard to this evidence of the Bank Manager.
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The President. Labour Tribunal, concluded his order in thesewords:
"Summing up therefore the evidence led before theTribunal. I find that the conduct of the applicant was suchthat though he has not been directly guilty of fraud or' fraudulent transaction his conduct has certainly been not. absolutely above board. It is my view that the conduct of theapplicant has been such that he is not a fit and properperson to be employed in an establishment of the nature of• a Bank where large sums of public money are transacted inits day to' day activities. In the circumstances 1 hold that the
term.ination of the applicant's services was for-good cause."
The applicant:appe!!ant preferred an appeal to the Court ofAppeal and the Court of Appeal by its judgment dated 7.3.86.without evaluating and. analysing- the evidence in the case,accepted the findings arrived at by the Labour Tribunal.. Thejudgment merely states:
"l am of the view that the evidence on record substantiates'. the findings and conclusions of the Labour-Tribunal and this
Court will accordingly not interfere with his findings on the
factsThus in the instant case once the learned
. President has found on the evidence that 'his conduct hascertainly been.not absolutely above board' in respect of thefraudulent transaction- referred to. the continuedemployment of the applicant-is inimical.to the interest of thecustp/ners-of the Bank and to any confidence that can bereposed in him; nor can the Bank with any sense ofresponsibility, continue to employ him and jeopardise itsown reputation and the interest of its customers to whom it■is responsible., The learned Presideht.was therefore right inholdihg that. he. was -not .a fit-and proper person to beemployed in an establishment of the nature of a Bank 'and. ip-,holding .that the-termination .of the-applicant's services.was for good cause,' This appeal is accordingly dismissed.
■' The ultimate finding/of-both, the-Labour Tribunal and the Court. of Appeal is that the Respondent Bank had lost confidence in the
Sithamparanathan v. People's Bank (Tambiah. J.)
applicant-appellant and he is unfit for continued employment atthe Bank. Therefo're, the termination was for good cause!
As regards the remaining two charges, there. are severalrelevant "items of evidence in the applicant-appellant's favourwhich the President, Labour Tribunal, has failed to consider.There has been a lapse of about twelve months between theconclusion of evidence on 22.2.79 and the delivery of the Orderby him on 7.1.1980. This may account for, the non-considerationof the totality of evidence. ■'
In Collettes v< Bank of Ceylon (1) five Judges of this Courtruled thus — 'The question whether'the Tribunal has failed totake into account relevant considerations is a question of law."
Weeramantry, J.. said in Ceylon Transport Board v.-Gunasinghe, (2).:
"Where a statute makes an appeal available only,in respect• ■ of questions of law, the Appellate Court is not withoutjurisdiction to interfere where the conclusion reached onthe evidence is so clearly erroneous that no person properlyinstructed in the law and acting, judicially could havereached that particular determination."
In Ceylon Transport Board ,v. Thungadasa (3). Alles. J.observed: ., ,, .
. "Some of the findings are.:inconsistent with the evidenceand contradictory and there has been a failure to considerrelevant and admissible evidence. This Court is thereforeentitled, as a question of law; to examine and interfere withsuch an order. . 7 . Recently, this Court has had occasion todraw the attention of Presidents of Labour Tribunals to theduty'of acting judicially, in evaluating evidence beforemaking just and equitable orders."
The strange features, in regard to this charge are that the.relevant voucher for the payment of Rs. 4.500/- is missing, andthe failure of the Respondent Bank to. call Peiris. the Ledger.Officer, the savings ledger clerk who handled the missingvoucher, and the relevant'ledger sheet, and the cashier who
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received the voucher and ultimately paid out the money. I cannotjesist asking the question — Was the Respondent Bank stagingHamlet not only without the Prince of Denmark, but. without theother members of the Royal Household as well? This lastobservation also goes for the charge relating to the attemptedfraudulent withdrawal of Rs. 4000/- on 6/6/71.
The withdrawal voucher for Rs. 4.500/- has been presented atthe counter at 12.40 p,m. on 27.5.71 according to the ScrollBook. From the mere fact that the two preceding and succeedingvouchers have been authorised for payment by the applicant-appellant. the President of the Labour Tribunal has inferred thatthe withdrawal voucher for Rs. 4.500/- would have necessarilycome to the applicant-appellant and that he would haveauthorised the payment. vc' .
The applicant-appellant’s evidence was that on this day therewere four officers.working including one Wickremasekera Bandaand. this has .not been contradicted. The Voucher (R4 (f) wasreceived at the counter at 12.49 p.m. and was authorised forpayment by one Wickremasekera Banda. This evidence was notconsidered by the President of the Labour Tribunal. •
The applicant-appellant stated that Vouchers were notauthorised for payment according to the time they werepresented at the counter, receives support from the evidence ofManager Peiris. This evidence . was not considered by thePresident of the LabourTribunal. f
the applicant-appellant’s evidence that he would never havesanctioned the payment of Rs. 4,500/- without reference to thespecimen signature card which was locked up in Peiris" cabinet,receives-support from the fact'that the five vouchers headrhittedly authorised for payment are all for sums under Rs.1.000/- and below Rs. 200/-. This too was not considered bythe President of the Labour tribunal.- .
.. Most importantly, Muzamil stated, jn evidence that the initialagainst the withdrawal of: Rs. 4.500/- is that of Peiris’ and thatbefore Peiris gave the missing voucher to.him, he initialled.the
SC'Sithamparanathan v. People's Bank (Tambiah. J.)147
Ledger Sheet and that the alteration was not there earlier. Thisimportant evidence, too was not considered by the President of- .the Labour Tribunal.
Equally important is the evidence of the Manager Perera that atthe time Peiris prepared the summary sheet-, the relevant voucherwould have been with him- and that at no.time did Peiriscomplajn that the voucher was missing..There is the furtherevidence of Muzamil. that the-summary sheet was: prepared by• Peiris on 27.5.71 and that the summary sheet was checked withthe vouchers and the voucher vyas there; that Peiris gave'thevoucher to him whi.ch he kept on his table and that on 28.5.71,he found the voucher in the ledger, that the bundle of voucherswas on Peiris' table and the voucher was missing thereafter. Alithis evidence has not been considered, by the President of TheLabour.Tri.bunal. ■
In addition, there is the admission by the-Manager Perera thatduring this period Peiris was involved in fraudulent: chequetransactions at a time vyhen his. Bank account was. closed andthat Peiris admitted to a fraud concerning a Savings Pass,Book.when he was under interdiction. .-• .
It is also relevant to note that though the Respondent .Bankabandoned the 2nd alternative charge in its Answer that theapplicant-appellant negligently authorised the payment ofRs. 4,500/-, the President of the Labour Tribunal considered this,charge and concluded "that it is not possible, to state that theapplicant was negligent in authorising this payment in theabsence of the voucher. It is only from the voucher that onecould conclude as to who has authorised, this payment." Surely,the same reasoning must equally apply in the consideration ofthe first charge as well?. .'
In the light of all these items of evidence favourable to theapplicant-appellant, yyhich have not been considered at all by thePresident oT;;t.he Labour Tribunal, could it be said that from themere fact that the missing voucher was received at the counter atT 2.40 p.m. and as' the applicant-appellant had authorised thepayments of- the vouchers, received, just- before and after, at
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.1 2.39 p.m. and 12.45 p.m. the missing voucher too would havenecessarily come to the applicant-appellant and it is he whoauthorised the payment of this withdrawal. It is an erroneousinference.
The other item of evidence relied upon by the President of theLabour Tribunal is the evidence of the Handwriting Expert whostated that in his opinion the original-initial "7" which has beenaltered to "P” is consistent with the initials "7" found in theLedger Sheet (R22). which admittedly are the initials of theapplicant-appellant. In the Ledger Sheet (R2), the admitted initial"P" Of Peiris is also there, and the witness stated that in theabsence of more specimens similar to "P”, he cannot express anopinion.
In dealing with the evidence of the Handwriting Expert, thePresident of the Labour Tribunal stated that from his evidence it"is quite clear that the applicant made the original initial 7' onR2". This is an erroneous misconception of his evidence, as it ishis-clear .evidence that he was unable to. say as to who is theperson who altered the original 7' into ‘P
As to the value of expert testimony on the question ofhandwriting. Monir in his "Principles and Digest of the Law ofEvidence (4th Edn.. Vol. 1. at p. 355) states:
"Conclusions based on mere comparison of handwriting• must, at best, be indecisive, and yield to the positiveevidence in the case. The opinion of an expert cannot bemore reliable than the statement of a witness of fact such asa petition-writer who had seen the party signing thedocument."
There is no direct evidence of any kind against the applicant-appellant. No one'has seen the applicant-appellant initial theLedger Sheet (R2). But on the other hand, we have the directevidence of the Savings Clerk Muzamil that Peiris initialled theLedger Sheet before he gave the voucher to him. This is directevidence of an eye-witness and the opinion of the AssistantExaminer of Questioned Documents must yield to the positiveevidence of Muzamil that Peiris initialled the Ledger Sheet. ■
SCSithamparanaihan v. People's Bank (Tamb'iah, J.)
The Judges of our Courts have made it clear that' a Courtshould not merely adopt the opinion of an Expert, but, with theExpert's'assistance, it should independently form its own opinion-and that the Expert's opinion should be accepted if there is otherevidence which tends to show that the conclusion reached bythe Expert is correct. (See Gratien Perera v. The Queen j(4),
* The finding of guilt by the President of the Lab.our Tribunal iserroneous and untenable.. .
I now come to the charge relating to the dishonestparticipation of ,the applicant-appellant in .the attemptedwithdrawal of Rs. 4.000/- from the Savings Account of Mrs,Wong on 6.6.71 . The President of the Labour tribunal appearsto have been influenced, by the following factors:—(1) that it wasthe applicant-appellant who brought the withdrawal voucher andthe fake Pass Book (R8) from the cashier's tray to the SavingsClerk Muzamil. (2) that the Pass Book had its machine No.10237 scored off and had a handwritten No. 10043 whichcorresponded with the handwritten No. 10237 on the Pass Bookf(R1,0). which the applicant-appellant had obtained'for His friendSydney Amarasingh'e, (3) it was an attempted- fraud becausewhen the token number was called, no customer came forward.
Here' again, there are items of evidence in . the applicant-appellant's. favour.- which’ were never1 considered'.' The BankManager Perera saw nothing unusual in the applicant-appellantwalking-sjp to the' cashier's counter in order to collect chequeswhich have to be dealt by him. and in the process collecfsavings •pass books and hand same to the savings clerks which have tobe dealt with" by them.:Muzamil admitted that the;Pass Book- (R10)was a genuine Pass Book and he wrote the particulars on thePass Book and all entries therein are genuine. He further statedthat as his suspicions were aroused, he took the fake Pass Book(R8);and’the Voucher (RT3) to Peiris who said "just post it andgive it to me". There is the further evidence- of- the AssistantManager Fernando that the cashier Nahayakkara working at thecounter came upto -him and said "I know Mrs. Wong. Pay:" And itis this same Nanayakkara; according to the Manager Pere'ra. whowas dismissed from service after a domestic inquiry and he had
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applied for relief to the Labour Tribunal. The statement in theapplicant-appellant's written submissions to this Court thatNanayakkara has since been reinstated in service has not beendenied in the Respondent Bank's written submissions. Everyoneof the factors that prompted the President of the Labour Tribunalto find him guilty of this charge could be explained by theRespondent Bank's own witnesses. This finding top is erroneous,and cannot stand.
Having found the applicant-appellant guilty of dishonestparticipation in the fraudulent withdrawal of Rs. 4.500/ and inthe attempted fraudulent withdrawal of Rs. 4,000/. the Presidentof the Labour Tribunal finally concluded: "though he has notbeen directly guilty of fraud or fraudulent transaction, hisconduct has not been above board”, a finding to my mind whichis inconsistent with and contradictory to his earlier findings ofdishonest participation.
Before this Court, learned President's Counsel for theRespondent Bank sought to justify the conclusion of the LabourTribunal that the applicant-appellant's conduct being not aboveboard, he is not a fit and proper, person to be continued inemployment and. therefore, the'termination was for good cause.He submitted that the material placed before the.Labour Tribunalraised a reasonable suspicion of . the guilt, of the applicant-appellant; the employer may place his case high, but it is open tothe Labour Tribunal to say: "the evidence may not add up toestablish the charges, but. in its view.- the workman is not a fitand.proper person to be continued in service." This is.the finalposition of the Respondent Bank to which it has been reduced to.
I cannot agree with this submission.
.. It seems to me.that loss of confidence has two aspects inLabour-Law: (1) where the termination of employment is effectedby the employer on the ground of loss of confidence. (2) loss ofconfidence may be. a circumstance from which a . Court, mayconclude tha.t-reinstatement is not the appropriate relief, despitea finding.that the termination is not justified.-
.Sithamparanathan v. People's Bank (Tarribiah. J.)151
S. R. de Silva in his "Legal Framework of Industrial Relations inCeylon" (p. 552. 554. 555) states. "Loss of confidence mayjustify a termination or, in a case where termination is held to beunjustified, may be an argument against the award ofreinstatement. Though theoretically there is no restriction as tothe class of employee in respect of whom termination ofemployment may be effected on the ground of loss ofconfidence, it usually applies in respect of employees who holdpositions of trust and confidence such as accountants, cashiersand watchers or who perform a certain degree of responsiblework." In Jubilee Mills Ltd. v. Babura Chintaman($) theManagement held an inquiry into shortages in the stores. Certainemployees in the stores, though not proved guilty werereasonably suspected of being responsible for the shortages, andpermission was granted to dismiss them. The Court said. 'Thesetwo coolies were entrusted with the responsible duty of handlingstores. Employees in this department must naturally continue toenjoy the confidence of the management and it would not be inthe interests of .the industry if persons not enjoying .theconfidence of the management, are thrust upon it’in such adepartment". In Estrella Batteries v. Workmen (.6) the Court held:"It is vital to remember that this is a case of suspected loyalty tothe Company and' in the state of affairs as they shaped it was notpossible to get any definite evidence to prove that it was an actof deliberate spoiling of the batteries. It was therefore, notpossible to prepare and give a regular charge sheet and anopportunity to meet it ….. . that was not necessary because itwas perfectly open to. the employer to terminate the services ofan employee whose every loyalty .to the employer was suspect;and there was more than reasonable grounds to entertain thesuspicion". ■
In regard to the second aspect. S. R-. de Silva (ibid at. pp. 376-380) states that though- in a case of'wrongful dismissal, thenormal remedy is reinstatement, there are, circumstances, inwhich a Tribunal will' be • entitled in its discretion to ordercompensation in lieu of reinstatement, inter aiia (1) in view of theemployer's plea , of loss of confidence in the employee whooccupied .a position of confidence. Assam Oil Co. Ltd. v. JtsWorkmen, (7) Madhukarv. Bhilai Steel Project (8) (Reports not available).
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where though reasonable suspicion may not of itself be asufficient ground for termination, yet it would be a circumstanceto' be taken into account on the question of reinstatement. Hecites several Indian decisions for his proposition (Reports notavailable).
It is not the Respondent Bank's case that it reasonablysuspected the applicant-appellant of dishonest participation inthe fraudulent withdrawals or attempted withdrawals of moniesin'respect of Savings Deposit Accounts, and the applicant-appellant no longer..enjoys the confidence of the employer. Noris it the Labour Tribunal’s position that there is Reasonablesuspicion of the applicant-appellant's involvement, and though itwould not be a ground for termination, but, as the applicant-appellant occupies; a position of. confidence,. an award ofcompensation in lieu of reinstatement is.the just and equitable. order. The President of the Labour Tribunal has clearlymisdirected hirnself in law when he finally concluded that thetermination was for good cause because in his view, theapplicant-appellant's conduct not being above board, he was nota fit person to be continued in employment, as he holds aposition of confidence.-
In my view the termination of employment of the applicant-appellant by the Respondent Bank was unjustified, wrongful andunreasonable.
The appeal is allowed and I set aside the judgment of the Courtof Appeal dated 7.3.1986 and the Order of the Labour Tribunaldated 7.1.1980.■
The question arises, what is the relief that should be granted tothe applicant-appellant? .
■ In the application for grant of Special Leave to Appeal to thisCourt, the applicahtrappellant has stated that he. an officer-in-charge of the Corporate Department, was interdicted along withthe officef-in-charge of the Sayings Department, P M. P. Peiris;that both were served with Charge Sheets and Peiris wascharged with regard to two fraudulent cheque transactions and Savings
Sithamparanathanv.-People's Bank (Tambiah. J.)
Pass Book frauds; that he. was exonerated after a domesticinquiry but not reinstated! placed on half-pay from 1.1.73 andlater his services were terminated on 5.6.74' with effect from11.7.71.‘But. on the other hand. Peiris who.admitted fraud'in.respect of Pass Books – and the ,two fraudulent chequetransactions, after domestic inquiry, was reinstated-on 18.3.74;demoted from his Grade to one Grade below, and retired On.1.5.75. This position vyas reiterated in the applicant-appellant'swritten -submissions arid has not been .contradicted by theRespondent Bank iri- its own written submissions. Perera. theManager of the Respondent Barik. also confirms what the-,applicant-appellant says.-
This, punishment meted out to .the applicant^appellant by theRespondent vBank sis .cleanly discriminatory. The two co.urses ofaction vis-a-vis Peiris on the one hand and vis-a-vis theapplicant-appellant on the other hand adopted by . theRespondent Bank appear to me to be illogical and incongruous,
A Public Institution like the People's Bank.cannot afford to beselective in its punishment, of two officers holding the same rankin the same Institution. It dismissed the applicant-appellant vyho .was exonerated at. the domestic inquiry and whom the Criminal-Investigation Department had cleared, blit, showed leniericy.andreinstated Peiris. who’ on his own admission, accepted hisinvolvement in fraudulent transactions.
The.tragic feature in this ease ls the inordinate delay in thehearing of this case in the Labour Tribunal and in the delivery ofits order. The applicant-appellant, when he commenced. hisevidence on.22. 1. 79. gave his. age as 47 years. On.the date of.his dismissal from'service, i.e. 5. 6. 74-, he would have beenabout 42 years and 4 months old. His application to .the Labour-Tribunal was on 23. 7. 74 and the President delivered his-orderon 7 1. 80. about 5'/2 years later. It took him about a year todeliver his order. The Court of Appeal delivered its judgment on
3. 86 and in November thjs year, the applicant-appellant ,would reach the age of 56 years and 10 months. There is noevidence as t-o the age of retirement of an officer, holding the.rank of.'the applicant-appellant in the Respondent Bank. There isalso no evidence.as regards the terminal salary he was earning' and the retiral benefits such arr officer would be entitled to. ;
Sri Lanka Law Reports
11989/ I Sri L. R.
In my view, the just and equitable order that I should make inthis case is that the applicant-appellant be reinstated withimmediate effect with, all arrears of salary from 1.7.71 (less thehalf-pay he received for a certain period of time) and otherbenefits, as if there had been no break in service. The applicant-appellant was a member of the Bank’s Pension and ProvidentFund Schemes. In Case the applicant—appellant has by nowreached the age of retirement. I make order that in addition to allarrears of salary and such other benefits as aforesaid, theapplicant-appellant be' placed on retirement with all retiringbenefits as provident fund payments and pension, on the basisthat there was no interruption in service.
I also make order that the Respondent Bank pay the applicant-appellant costs of all proceedings fixed at Rs.'7,500/.
ranasinghe. c.J. — I agree.AMERASINGHE, J. — I agree.