013-NLR-NLR-V-76-THE-BATTICALOA-MULTI-PURPOSE-CO-OPERATIVE-SOCIETIES-UNION-LTD.-Appellant-and-.pdf
60Ballicaloa Multi-Purpose Co-operative Societies Union Ltd. v.
Velupillai
1971Present: Alles, J.
THE BATTICALOA MULTI-PURPOSE CO-OPERATIVE SOCIETIESUNION LTD., Appellant, and V. VELUPILLAI, Respondent
S.C. 128/70—Labour Tribunal Case 16/281/69
Labour Tribunal—Duty of President not to trespass beyond the bounds of the judicialsphere—Evidence led at domestic inquiry—Evidenliary’value of it at subsequentinquiry held by a Labour Tribunal—Industrial Disputes Act (Cap 131), ss.
31 B, 31 C (1), 36 (4).
A workman (the applicant-respondent) claimed relief under section 3 IBof the Industrial Disputes Act in respect of the termination of his servicesby his employer (a Multi-Purpose Co-operative Societies Union). The evidenceled at the inquiry before the Labour Tribunal included the production of therecord of the proceedings at the domestic inquiry at which the workman and awitness for the employer had given evidence.
One of the charges framed against the workman was that he was guilty ofconduct which amounted to an attempt to disorganise the working of theCo-operative Societies Union in a manner which was likely to cause financial loseto the Union. In regard to this charge the President who held the inquirymade the observation that even if it was proved he did not consider it an offencethat would warrant the termination of the services of the workman.
Held, (i) that pronouncements of the nature made by the President do notfall within the purview of the judicial sphere in which a President of a LabourTribunal is expected to function and are likely to affect that detachmentwhich should characterise the conduct of a person vested with judicial functions.
(ii) that, in considering what “ just and equitable ” order should be made,there is no objection to the President of a Labour Tribunal examining or evenacting on the evidence led at the domestic inquiry, after satisfying himselfthat the evidence has been properly recorded, ensuring that the workmanhad a fair opportunity of meeting the allegations made against him and seekingsupport for his findings from the evidence so led.
ALX.ES, J.— BaUicaloa Multi-Purpose Co-operative Societies Union Ltd. v.
Velupillai
61
Appeal from an order of a Labour Tribunal.
S. C. Grossette-Thambiah, for the employer-appellant.
M. P. Emmanuel, for the applicant-respondent.
Cur. adv. wit.
August 30, 1971. Alt.es, J.—
The applicant-respondent to this appeal (hereafter referred to as theapplicant) was employed as a lorry driver under the Batticaloa Multi-Purpose Co-operative Societies Union Ltd. (hereafter referred to as theUnion) from May 1966. His services were terminated with effect from3rd December 1968 ; a charge sheet containing six charges was servedon him on 17th December 1968 (marked R 2A); he replied to the Chargesheet on 24th December (his reply is marked R 3A) ; a domestic inquirywas held on 18th February 1969 at which evidence was led in supportof the charges and at which the applicant gave evidence (the proceedingsare marked R 4A) and by R 6 of 19th February 1969 the applicant wasinformed that his services were terminated with effect from 3rd December1968 as four of the charges against him had been proved.
On 21st February 1969 the applicant made his application underSection 31 B of the Industrial Disputes Act seeking relief from the LabourTribunal. In that application He stated that the decision to terminatehis services was excessive “ for the offence of being under the influenceof liquor whilst on duty ”. In a subsequent application made on thesame date he has denied that this was so in fact and claimed reinstatementand arrears of wages or in the alternative that he be paid Rs. 10,000as compensation for loss of career.
The Union in its reply in March 1969 referred to the charges framedagainst the applicant; the result of the findings of the domestic inquiryat which he was found guilty of four charges ; that he had been previouslyfined Rs. 5 in January 1968 for having caused damage to the Unionlorry and submitted that there was ample justification for the terminationof the applicant’s services.
At the inquiry before the President, Counsel appeared for the parties.The Union led the evidence of the Secretary, Subramaniam Prathapan,the record of the proceedings at the domestic inquiry and the admissionsmade by the applicant both at the inquiry and in the pleadings.Prathapan’s evidence at the domestic inquiry was marked R 4A and theevidence of the applicant R^5A. The applicant too gave evidence andwas cross-examined at length by Counsel for the Union.
The President in his Order has unnecessarily dealt with all six chargeswhich formed the subject matter of the domestic inquiry.
62ALLES, J.— Batticaloa Multi-Purpose Co-operative Societies Union -Ltd. v.
Velupillai
Since, however, the applicant was found not guilty of two of thesecharges and the Union only relied for their case on his conviction on theremaining four charges, it would be sufficient for the purposes of thisappeal to consider the correctness of the President’s order in respect ofthese charges. The charges in question are set down below :—
(а)Tha-t he did on 12th November 1968 carry an unauthorised load
in the Union’s lorry on his way to Colombo for sugar purchases ;and that he also received a gratification for carrying the aboveload;
(б)That by careless and negligent driving he caused the following
damage to the said lorry
damage to the offside mudguard on 9th November 1968,
damage to the hood rack ;
That he did on 2nd December 1968 drive the said lorry in a state of
drunkenness from the employer’s Sugar Depot to the Main Depotand was unable to reverse the lorry into the Main Depot andhad it not been for the timely intervention of the LiaisonOfficer Mr. S. D. Dharmaratnam to have him removed from thelorry, the Union would have suffered heavy financial loss as aresult of any damage that might have been caused to thelorry ;
That he did on 1st December 1968 on his way back to Batticaloa
from Colombo request the Sugar Depot Manager not to handover the cement delivery order to the Manager of the Unionknowing fully well that he would be asked to proceed to Trinco-malee for the transport of cement and did thereby attempt todisorganise the working of the Union which was likely to causefinancial loss to the Union.
In regard to Charge (a) there was an admission in R 3A that he “ carrieda load composed of three bundles of betel to Colombo ” but did notaccept money for the service but received only a cup of tea. In his evidenceat the domestic inquiry (R 5A) he admitted that at Polonnaruwa heloaded three bundles of betel and took the betel and one Danapala toColombo. At the domestic inquiry the cleaner Sinnatamby said that theapplicant received money. In spite of the admission of the applicantthe President holds that this charge has not been proved because “ ithas not been established whether the transportation of the passengerand the goods did in fact occur ”. This finding is in the teeth of theadmissions. The President appears to take the view that, becausethe Sugar Store Manager was in the lorry at the time, and did not giveevidence, the charge has not been proved. Prathapan stated in evidencethat it was the Sugar Store Manager who brought it to his notice and thatthe latter was unaware whether, what the applicant did was regularor not. Apparently it was because the Sugar Store Manager thought
ALLES, J.— Batticaloa Multi-Purpose Go-operative Societies Union Ltd. «.63
Velupillai
it was irregular that he brought the matter to the notice of Prathapan.However, be that as it may, in view' of the applicant’s admissions therecan be no doubt that the charge has been proved. This is such anelementary error that it deserves no comment.
In regard to Charge (b) the President accepts the evidence thatdamage was caused to the lorry by the applicant in November 1968but considers it unnecessary to come to a finding because the applicantwas fined and made good the loss. If this charge stood by itself, I thinkit was proper that it should not have been made the subject matterof a charge in the proceedings before the Tribunal, but the Unionapparently referred to this charge in its answer because it was connectedwith the facts which formed the subject matter of Charge (c) where tooit was alleged that he would have caused damage to the lorry and theUnion premises by the negligent manner in which he attempted to reversethe lorry, while in a state of intoxication, and which damage wasprevented by the timely intervention of the Union officials. Therefore,in considering the entirety of the case against him it was not irrelevantto take intp account that he had admittedly caused previous damageto the Union lorry.
/
In regard to Charge (c) the Union Manager Dharmaratnam and Pratha-pen gave evidence at the domestic inquiry. Dhannaratnam’s evidencewas to the effect that the applicant was finding it difficult to reverse thelorry into the Union garage and was almost about to knock the wall ofthe southern end. He immediately instructed him to stop the lorry andasked another driver to garage it. He came into the Union premisesstaggering and drunk and was unable to stand erect. This same evidencewas given by Prathapan. Dharmaratnam was not called at the inquirybefore the President and the President took the view that he was notprepared to act on Dharmaratnam’s evidence at the inquiry in regard tothe applicant’s state of intoxication in the absence of cross-examination.This is understandable but there was no invitation by Counsel thathe should act on Dharmaratnam’s evidence alone. Counsel reliedstrongly on Prathapan’s evidence at. the inquiry which was supportedby Prathapan’s testimony before the President. Prathapan gave directevidence of the condition in which the applicant behaved, being aneyewitness to what happened. He stated that when the applicant camewith the lorry on-that occasion he observed that he was finding it difficultto reverse the lorry into the premises of the Union through its gates andhe knew he was not normal; that Dharmaratnam asked him to get offthe lorry and asked another driver to reverse the. lorry and take it overand that when the applicant got off from the lorry he was not able tostand straight and he was smelling of liquor; that when the LiaisonOfficer wanted to take him before a Doctor the applicant said “ Pleaseexcuse me this time, and that he was asking pardon for his drunkenness ”.In cross-examination this evidence was not challenged and he repeatedthe evidence in chief that it was the Liaison Officer who asked the applicant
64 AUL.ES, J.—Ballicaloa Multi-Purpose Co-operative Societies Union Ltd. v.
Velupillai
to stop and not himself. These were the only questions asked fromPrathapan in regard to this matter although he was cross-examined atgreat length by Counsel. Nothing was suggested against Prathapanas to why he should give evidence against the applicant. For someunaccountable reason the President has chosen to ignore Prathapan’sunchallenged evidence completely but proceeded to enter upon a lengthydissertation on the undesirability of a driver who had returned fromColombo to Batticaloa being requested to bring the lorry from the SugarStore to the Main Store, a distance of about J mile, and asked to reversethe lorry into the Union garage. He accepts the position that the applicanthad consumed liquor because the applicant himself admitted havingconsumed a dram of liquor and “ consuming liquor is not itself a crimeor violation of the rules of society ” but Counsel for the Union submits,with considerable force, that the applicant must have consumed a fairquantity of liquor on the evidence that was led at the inquiry andcomments on the untruthful nature of the applicant’s evidence. This hasnot been considered by the President. The applicant has taken up variouscontradictory positions whether he had taken liquor or not and the reasonfor his partaking of liquor on this occasion. In examination in chiefhe stated that he took a dram of liquor because he was tired, in cross-examination he denied he was staggering and that he was quite fit, laterhe admitted that he was staggering when he got down from the lorry butthat it was not due to tiredness, then in re-examination he stated thathe usually staggers when he is tired. These contradictions were notconsidered by the President in deciding the material question whetherhe was not under the influence of liquor at the time he was asked toreverse the lorry into the garage. Had the President paused to evaluatethe evidence on this charge there was ample justification for affirmingthe decision of the Union Committee who unanimously found the applicantguilty on this charge.
Finally, there remains for consideration Charge (d) which, if proved*indicated an attempt on the part of the applicant to sabotage the smoothfunctioning and the discipline necessary for a large body like the Union,entrusted with serving the public, from performing its duties conscienti-ously and efficiently. In his answer to this charge the applicant hasstated “ that he was not aware on 2nd December 1968 whether he wouldbe asked to proceed to Trincomalee for the transport of cement ”. Thisis in conflict with his testimony at the inquiry before the President, thathe told the Sugar Manager Dharmasena to tell the Secretary to releasehim from driving the lorry from Batticaloa to Trincomalee. The applicantadmits that the delivery orders had to be handed by the Sugar Managerto the Union office when the Secretary in turn would direct him to trans-port the cement to Trincomalee. There was evidence led at the domesticinquiry that on the evening of 2nd December the applicant was afterliquor and drunk and was sleeping in the lorry when a messenger wassent to fetch him to transport the cement. The applicant had given theexcuse that he was unable to proceed to Trincomalee because his child
AXLES, J.—Batticaloa Multi-Purpose Co-operative Societies Union Ltd. v.
VelupiUai
65
was sick. The Sugar Manager stated in evidence at the domestic inquirythat the applicant stated that he (the applicant) was not well, that hewas going to have a drink of arrack and asked him not to give the cementorder to the Union office. There was sufficient evidence placed before thePresident, which, if it had been properly considered, would have beensufficient to find the applicant guilty of the fourth charge.
In regard to this charge the President has made the unfortunateobservation that “even if-it was” (i.e., proved) “I did not considerit an offence that would warrant the termination of the service of theapplicant An observation of this nature, coming as it does froma functionary who is expected to act judicially can cause considerabledamage in the eyes of the public. It almost amounts to a licence toa workman, if in his view he thinks the order of his superior officer to beunjustified and inconvenient, to Openly flout such an order with impunity.Such an observation can only result in encouraging indiscipline in therelations between employer and-workman. I have no doubt that thePresident did not realise the implications of what he had stated, butfunctionaries vested with the exercise of judicial power should beextremely cautious not to trespass beyond the bounds of the judicialsphere. The Government is quite conscious of the conditions of theworking classes and the outcome of labour legislation in recent timesindicate quite clearly that the Legislature is aware how and in whatmanner the condition of the workman requires amelioration. It is thefunction of the Executive to implement the matters of policy laid down bythe law makers through the appointment of administrative officials andthereby ensure that laws are properly enforced. The Industrial DisputesAct has for its main object “ the prevention, investigation and settlementof industrial disputes ” and not the declaration of the ideal or desirableconditions under which workmen should perform their duties. Pronounce-ments of the nature made by the President in this case do not fall within. the purview of the judicial sphere in which Labour Tribunals and Presi-dents of Labour Tribunals are expected to function and are likely toaffect that detachment which should characterise the conduct of a personvested with judicial functions. I would in this connection commendto the attention of Presidents of Labour Tribunals the valuable observa-tions made by my brother Weeramantry in Ceylon Transport Board v.Ghinasinghe 1 (72 1ST. L. R. 76 at pp. 80 to 84), as an useful guide as tohow Presidents of Labour Tribunals should perform their duties.
Before making my final order in this case, I would like to make certainobservations in regard to the evidentiary value of depositions provedat a domestic inquiry, which are often marked and produced at the inquirybefore the Labour Tribunal, as was done in the present case. Theseinquiries perform an useful purpose. They deal with the matter at issue,which invariably resolves itself to a decision on the facts and has thegreat advantage of expeditious disposal, before interested parties can
1{1968) 72 N. L. R. 76 at pp. 80 to 84.
66 ALLES, J.—Batticaloa Multi-Purpose Co-operative Societies Union Ltd. v.
Velupillai
influence the workman to put forward false explanations. There isalso some element of natural justice, since the workman is given anopportunity of questioning the witnesses who have given evidenceagainst him. Of course one cannot maintain that the conditions at adomestic inquiry are ideal because the workman may get the erroneousbut unjustifiable impression that the entire management is arraignedagainst him and out to find him guilty and therefore he may not be ableto effectively cross-examine the witnesses.
Proceedings before a Labour Tribunal do not require that strict degreeof proof which is required in a Court of law. Section 36 (4) of the Actspecifically states that strict compliance with the provisions of theEvidence Act is not necessary, and having regard to the duties andpowers vested in Labour Tribunals under Section 31 C (1) “ to makeall inquiries into the application ”, “ hear all such evidence as the Tribunalmay consider necessary ” before making just and equitable orders,a wide discretion is vested in the President of a Labour Tribunal. Need-less to say that does not mean that Presidents must not conform to theelementary principles of natural justice and evaluate the evidence in ajudicial manner before making proper orders. There are several decisionsof this Court which have laid down that this is an essential requirementof the law. In considering, however, what “ just and equitable ” ordersshould be made, I see no objection to Presidents of Labour Tribunalsexamining or even acting on the evidence led at the domestic inquiry,after satisfying themselves that the evidence has been properly recorded,ensuring that the workman had a fair opportunity of meeting the allega-tions made against him and seeking support for his findings from theevidence so led. No doubt, in certain matters the President has naturallyto be cautious in accepting the deposition of a witness who has not beencalled at the inquiry before him. For instance, in this case, I appreciatethe action of the President in not being prepared to act upon the evidencegiven by Dharmaratnam led at the domestic inquiry “ that the applicantwas staggering and drunk ” in the absence of Dharmaratnam being calledas a witness before him. This evidence was however amply supportedby the other evidence led before him at the inquiry.
There only remains for consideration the ultimate decision whichI propose to make on this appeal. In my view, there has been a failureby the President to consider relevant evidence particularly that ofPrathapan, a failure to consider the admissions made by the applicantboth in the pleadings and the evidence given by him at the domestioinquiry, an omission to consider material contradictions in the evidenceof the applicant and a failure to .make proper findings on the facts andto evaluate the evidence which makes the order of the Presidentunsustainable. In the words used in the leading case of Edwards v.Bairstow1 ((1955) 3 A.E.R. 148) “the conclusion reached on the evidence
(1955) 3 A. E. R. 148.
Jamia v. Inspector of Police, M.iddeniya
67
is so clearly erroneous that no person properly instructed in the law, andacting judicially could have reached that particular determination Nouseful purpose will be served by remitting this case for a fresh inquirybefore another Tribunal. In my opinion, the evidence against theapplicant was so overwhelming that there was ample justification for theaction taken by the Union in terminating his services.
The order of the President directing a reinstatement of the applicantwith payment of back wages is therefore quashed and the appeal of theUnion is allowed with costs.
Appeal allowed.