037-SLLR-SLLR-1991-V-1-SUPERINTENDENT-ABBOTSLEIGH-GROUP-AND-OTHERS-v.-ESTATE-SERVICES-UNION.pdf
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earlier application No. 849/77 and that is why the Supreme Courtdirected "the Commissioner to inquire into the history of the vestingorder and also satisfy himself as to the validity of the Secretary’scriticism and decide whether circumstances justify that an ordershould be made by him under section 17A".
On the facts of this case the Commissioner has the power to actunder section 17A(1) and review the vesting order made undersection 17.
For the above reasons I affirm the order made by the 1st to 3rdrespondents dated 6.10.82 marked P4 and direct the Commissionerto take appropriate steps.
The application of the petitioner is dismissed with costs.
Application dismissed.
SUPERINTENDENT, ABBOTSLEIGH GROUP AND OTHERS
V.
ESTATE SERVICES UNION
COURT OF APPEAL,
A. DE Z. GUNAWARDANA, J„
C.A. 381/83,
L.T. HATTON 10/4515/83
MAY 1991,
(WRITTEN SUBMISSIONS TENDERED ON
JUNE 1991 AND 02 AUGUST 1991)
Industrial Disputes Act – Suspension of service – Interdiction – Constructive termination.
The workman's services were suspended when he did not comply with the order givenby the Superintendent, to act in terms of the settlement entered into in a LabourTribunal case, and vacate the quarters given to the workman in one division of theestate and occupy quarters in another division. The workman refused to occupy thequarters allocated to him in the other division, as he alleged that some of thenecessary repairs were not effected, as undertaken by the employer.
Held:
1. That the two grounds urged by the workman to assert that his services havebeen constructively terminated, do not directly relate to the duties he has toperform as Plucking Kanakapullai, or to his salary and emoluments. What is
CA Superintendent, Abbotsleigh Group and others v. Estate Services Union
(A. De Z. Gunawardana, J.)381
disputed is, the degree of suitability of the quarters provided for occupation ofthe workman, and not that quarters were not provided at all. In such a situationit would not be appropriate to infer that there had been a-constructive terminationof services.
That ortfnarily what suspension of work would mean, is that the employer causeda cessation of work of the workman, temporarily, till such time a term orcondition is observed or adjusted.
That interaction cannot be considered as termination of services either directlyor constructively, in the given circumstances.
Cases referred to:
Ceylon Workers Congress V. Janatha Estates Development Board (1987) 2 SriLR 73.
Ceylon Estates Staff Union V. The Superintendent, Meddecombra Estate,Watagoda 73 NLR 278
APPEAL from order of the Labour Tribunal of Hatton
Chula de Silva, P.C. with M. Hussein and C. Liyanapatabendi for respondents –
appellants
A.A. De Silva with N. V. de Silva for applicant – respondent.
Cur. adv. vult.
30 September 1991
A. DE Z. GUNAWARDANA, J.
This is an appeal by the Respondents-Appellants (hereinafter referredto as Appellants) against an Order made by the Labour Tribunaldated May 9, 1963, ordering the Appellants to pay Rs. 19,632/- ascompensation in lieu of reinstatement, for wrongful termination of theservices of the Applicant-Respondent, (hereinafter referred to asApplicant).
The Applicant made this application to the Labour Tribunal, Hattonon January 11, 1983, stating that he was employed on AbbotsleighEstate, Hatton, as a Plucking K.P. and his services wereconstructively terminated on December 1, 1982. He contended thathis dismissal was wrongful and claimed Rs. 75,000/- ascompensation for loss of career, gratuity and other statutory benefits.The Appellants filed answer denying that the services of the Applicantwere terminated and further stated that the Applicant was suspendedfrom work for refusal to comply with the order made by the Labour
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Tribunal in the earlier case No. LT/10/4049/82. According to the saidOrder the Applicant had to move into quarters on Florence Divisionon or before November 1, 1982.
Prior to the filing of the instant case in the Labour Tribunal, theApplicant had made another application to the Labour Tribunal onthe ground that his services were wrongfully terminated by theAppellants. In that case, the Appellants took up the position that theApplicant’s services were not terminated by them, and that theApplicant had vacated his post by refusing to accept the transfer toanother division, of the same estate, (vide R2, at page 49 of thebrief). When the said case was taken up for inquiry it was settledon following terms amongst other matters agreed upon, (vide A1,page 38 of the brief). The Applicant was to be reinstated in FlorenceDivision with effect from August 23, 1982. The Applicant waspermitted to continue to occupy the quarters in Abbotsleigh Divisiontill November 1, 1982. The Appellants undertook to do all repairsnecessary for a family to occupy the quarters allocated to theApplicant in Florence Division, by November 1, 1982: Although theApplicant resumed work as agreed, the Applicant failed to vacate thequarters occupied by him in Abbotsleigh Division by November 1,1982 and was suspended from work. The Applicant refused to moveinto quarters allocated to him in Florence Division as he alleged thatit was not repaired in terms of the said settlement in the LabourTribunal. The Applicant has taken up the position that his suspensionfrom work by the Appellants amounted to constructive termination ofhis services.
The Applicant in his evidence at the inquiry in the Labour Tribunalhas stated that the Appellants have failed to repair the quartersallocated to him in Florence Division, in terms of the settlement inthe earlier Labour Tribunal case. He has set out the repairs needto be done in a letter dated November 24, 1982, produced markedA3. In reply to A3, the Superintendent of the estate by letter datedNovember 26, 1982, marked A4, has informed the Applicant that hewill be interdicated if he failed to cany out his instructions, and tomove into quarters allocated to him in Florence Division. TheApplicant did not want re-instatemerrt but asked for compensation inlieu. The Applicant produced documents marked A1 to A7 in supportof his case.
CA Superintendent, Abbotsleigh Group and others v. Estate Services Union(A. De Z. Gunawardana, J.)383
The Superintendent of the estate gave evidence on behalf of theAppellants and stated that when he wrote the said letter A4 thequarters in Florence Division was in a suitable condition to beoccupied by a family. According to him the quarters were whitewashed, windows were repaired, locks fitted, and water was supplied,in terms of the said settlement. He was willing to do the balancerepairs after the Applicant went into occupation. He also stated thatKanagaratnam, a K.P., was in occupation of the said quarters. Thesaid repairs have been effected before November or by the middleof November 1982.
Thus it is seen that both parties are relying on the non-complianceof the terms of the aforesaid settlement in the earlier case, to justifytheir action. It is to be noted that the Applicant had not compliedwith the terms of the settlement when he did not vacate the quartersin Abbotsleigh Division. However he proffers as an excuse, the factthat quarters at Florence Division was not repaired as undertakenby the Appellants. The position of the Appellants appear to be thatthey have substantially complied with the terms of the settlement andthat if there was anything more to be done they will attend to it evenafter the Applicant moves in.
According to the evidence adduced in the case there is no directtermination of the services of the Applicant in this case. All that seemto have happened is that his services have been suspended as hecontinued to occupy the quarters in Abbotsleigh Division, contrary tothe terms of the aforesaid settlement. Hence the legal issue thatarises from that situation is, does the suspension of work amountto constructive termination of the services of the Applicant? Thelearned Counsel for the Appellants submitted that it does not, andcited the case of Ceylon Workers' Congress vs. Janatha EstatesDevelopment Board (1), where the facts of that case were very muchsimilar to the instant case; it was held that suspension from workdid not amount to constructive termination.
It may be noted that the ordinary meaning of the word suspend, isto cause to cease for a time or to debar temporarily. Thus ordinarilywhat suspension of work would mean is that the employer causeda cessation of work of the employee, temporarily, till such time aterm or condition is observed or adjusted, in this context it is relevantto refer to the letter marked A7 dated January 17, 1983, where theSuperintendent of the Appellant’s estate states that,. .you, yourselftoo could resume work." This shows that even as late as January
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17, 1983, what was intended by the Employer was a temporarycessation of work, till the Applicant vacated the quarters ofAbbotsleigh Division. Even in the letter marked R4, dated November26, 1983, the Superintendent had merely indicated that, "please noteto move into Florence Division for occupation, and if you fail to doso as from 1st December 1982, you will be interdicted." It is seenfrom this letter that the intention of the employer was not to terminatethe services, but take disciplinary action by way of interdiction witha view of getting the Applicant to comply with his order. Furthermore,interdiction cannot be considered as termination of services eitherdirectly or constructively in the given circumstances. There is noevidence of any direct communication by the Appellants of theirintention to terminate the employment of the Applicant.
The Applicant in his evidence (page 17 of the brief) has adducedtwo reasons as to why he states that his services have beenconstructively terminated. The first reason he states is, because hisofficial quarters were not repaired properly. In this regard theevidence of the Superintendent is that the quarters were repairedpartly and that he was willing to attend to the other necessary repairseven after the Applicant went into occupation. He had added thatat the time the letter marked A4 was sent, which is dated November26, 1982, the quarters at Florence Division was suitable foroccupation by a family, (vide brief page 24). However it must benoted that when the Labour Tribunal President visited the saidquarters on March 23, 1983, 8 items of repair were shown asnecessary by the Applicant, (vide brief page 13 & 14). At that stagethe Superintendent offered to do all necessary repairs within twoweeks, but the Applicant refused to go into occupation of the quarterseven if repairs were done. The Applicant has further stated that inview of the state of the relationship between him and the Appellantshe does not wish to resume work under the same employer andrequired that inquiry be proceeded with (vide brief page 14). Similarlywhen he was asked in cross-examination whether he would go backto work, if the quarters are repaired, his answer was that in view ofthe state of affairs prevailing now he was not willing to resume work,(vide page 20 of the brief). Further he has stated in evidence thatafter the earlier case was filed his desire to work in the estate wasbreached.
It is evident from the document marked R2 that the earlier case No.LT/10/4049/82 also had been filed by the Applicant allegingtermination of his services, when he was transferred to Florence
CA
Superintendent, Abbotsleigh Group and others v. Estate Services Union(A. De Z. Gunawardana, J.)385
Division. This was an erroneous assertion on the part of the Applicantin the light of the decision in Ceylon Estates Staffs Union vs. TheSuperintendent, Meddecombra Estate, Watageda (2) which clearlyrecognises the right of an employer to transfer an employee withinhis service.
The second reason adduced by the Applicant in his evidence toassert that his services were constructively terminated, is that he wasnot permitted to reside, (vide page 17 of the brief). It is not clearfrom his answer as to where he was not permitted to reside, whetherit is in the Abbotsleigh Division quarters or Florence Division quarters.
Thus the two grounds urged by the Applicant to assert that hisservices have been constructively terminated, do not directly relateto the duties he has to perform as a Plucking Kanakapullai, or tohis salary and emoluments. There is also no direct evidence thatprovision of quarters is a term of his contract of employment. Evenif this is implied, the position arising in this case is not that quarterswere not provided, but that the quarters provided did not adequatelymeet the needs of the Applicant. In fact there is the evidence of theSuperintendent, that Kanagaratnam K.P. Is now in occupation of thequarters allocated to the Applicant, in Florence Division, although hiswife is living elsewhere, (vide page 25 of the brief). This would meanthat a workman of equal status had found it fit for his occupation. Ittends to show to what extent the claim of the Applicant is bona fide.All these in effect means that what is disputed is the degree ofsuitability of the quarters provided for occupation of the Applicant.In such a situation, I am of the view that, it would not be appropriateto infer that there had been a constructive termination of services.
Thus having considered all the facts and circumstances of this case,
I am of the view that an inference of constructive termination of theApplicant's services by the Appellants, is not warranted. Thereforethe Labour Tribunal had no jurisdiction to entertain this application.Accordingly the said Order of the Labour Tribunal is hereby set asideand the application of the Applicant to the Labour Tribunal isdismissed without costs. This appeal is allowed but I make no orderfor costs.
Appeal Altawed.