018-NLR-NLR-V-72-THE-CEYLON-UNIVERISITY-CLERICAL-AND-TECHNICAL-ASSOCIATION-PERADENIYA-Appellant.pdf
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Ceylon University Clerical and Technical Association, Peradcniya v.
University of Ceylon, Peradcniya
Present: Wijayatllake, J.
THE CEYLON UNIVERSITY CLERICAL AND TECHNICALASSOCIATION, PERADENIYA, Appellant, and THE UNIVERSITYOF CEYLON, PERADENIYA, RespondentS. C. 43j67—Labour Tribunal No. K 991
Labour Tribunal—Inquiry about a criminal act involving moral turpitude—Standardof proof required—Ifidustrial Disputes Act (Cap. 131), ss. 3IC, 3G (1).
Where, in an industrial dispute between cm employer and an cmploj^ee,a Labour Tribunal is called upon to decido whether tho emploj'oo was guiltyof a criminal act involving moral turpitude—such as making fraudulent entrieswith a view to misappropriation of funds—tho standard of proof should bo asin a criminal case. Accordingly, if thoro is a reasonable doubt, the benefit ofsuch doubt should bo given to the person accused. This requirement is not inconflict cither with section 31C {]) of tho Industrial Disputes Act, whichempowers a labour tribunal to make a “just and equitablo ” order, or withsection 36 (4), according to which tho Tribunal is not bound by any of thoprovisions of tho Evidence Ordinance.
.ApPEAL from an ordor of a Labour Tribunal.
K.Thevarajah, for the applicant-appellant.
M. M. Kumaralculasingham, for the employor-respondent.K. Jf. M. li. Kvhtiutuja Crown Counsel, as amicus curiae.
Cur. ado. vult.
YVI-JA YATI L, A K E, J.—Ceylon University Clerical and Technical-85
Association, Peradeniya v. University oj Ceylon, Peradcniya
December 20, 1968. Wijayatilake, J.—
This is an appoal from the order of tho learned Prosident of tho LabourTribunal dismissing tho Application made by the Applicant union onbehalf of Airs. Padma Perera, a nurse employod at the Dental School ofthe University of Ceylon, Peradeniya from 16th January 1956. Theservices of Airs. Perera woro terminated by tho University on tho groundthat sho had made cortain false entries (seven) and misappropriatedcertain funds amounting to Rs. 80 odd belonging to the Univorsityduring a period of 15 days in February 1962 whon she acted for thocashier-clerk of the Dental school. A domestic Inquiry had boon heldby tho University and tho University Council had decided to dismissher from service with effect from 14th Novembor 1962.
After a lengthy Inquiry the learned President has como to the conclusionthat this nurse has boon responsible for sevoral incorrect ontrios in thecash register all of which are of tho kind ono intending to misappropriatewould make and it is difficult to~ resist tho inference that thoy woromade with a dishonest intention. Ho proceeds to hold that in a caselike this the University does not have to prove boyond all reasonabledoubt that thore has boon misappropriation ; and that while the inferencesfrom cortain facts are clear, it may be that they are not sufficient forconviction in a criminal case, but that he has to be satisfied on a balance ofevidence that the University was justified in acting on the basis thatthere had been dishonest conduct. Ho accordingly holds that thoUniversity had sufficient reason for her dismissal.*
The evidence was concluded on 20th September 1965, and the Orderwas delivered on 14th November 1966 ; the delay being due to the questionwhich had arisen with regard to the regularity of tho appointment of thePresident by the Public Service Commission.
Learned Counsel for the appellant has submitted that the Order of thePresident is bad in law, as it is not just and equitable as contemplatedunder Section 31 C of the Industrial Disputes Act as on tho evidence ledthe University has failed to establish tho charge of misappropriation offunds or even an attempt to misappropriate the funds of the Univorsitybeyond reasonable doubt. He further submits that the President hasmisdirected himself on the Law in the matter of tho burden of proof in acase such as the instant one where the charge whether of misappropriationor tho making of false entries, with a view to misappropriation clearlyinvolves moral turpitude on the part of the person so accused, byproceeding to adjudicate on tho balance. of evidence. He submitsthat in our Criminal Law it is well recognised that a charge laid against .an accused has to be proved beyond reasonable doubt. Vide A. O. v.Rawther K It is a Rulo of practioe which we have adopted from thoEnglish and now it has ripened into a Rule of Law. This Rulo hasbeen extended to our Civil Courts when the issue pertains to an allegation
. '.(1924) 25 N. L. R. 385.
v'GWIJAYATILAKE, J.—Ceylon University Clerical and Technical
Association, Peradeniya v. University of Ceylon, Peradcniya
of moral turpitude ; for iustanco an allegation of adultery in a matrimonial•action or allegation of Fraud in a civil dispute. This Rule has also boonadopted in the Election Court. Vide Jayasinghe v. Jayasinghe 1;Selliah v. Sinnammah2 ; Coo mar as wa m y v. V inayamoorlhy 3 ; MntliahChetliar v. Mohamed Hadjiar 4 ; Aluvihare v. Nanayakkara 5 ; Subasinghev. JayalalhG ; Premasinghe v. Bandara 7; Narayana Chatty v. OfficialA ssignee 8.
Mr. The vara jail has cited the case of M. K. B. v. Advocates Committee 9whoro this Rule was adopted even in a domestic Inquiry in India whorethe chargo was against an Advocato for professional misconduct.He submitted that, the learned President would not havo dismissodthe Application of this nurse if ho adopted this Rule. Ho states thatthis nurse was during this period attending to tho work of three personswith hor children down with measles, and as a result in keoping thoaccounts she has mado certain mistakos. As for tho cash collectedby hor she had not appropriated any part of it. No shortago has beenproved eithor. It would appoar that during this period she hadkept the money in the drawor of tho tablo in the office and when showent on leave Sirs. Cramer had takon ovor from her and shohad givon the key of tho drawer to Mrs. Cramor, but this lady has notbeen called as a witnoss by the University. He further submits that theMatron herself has admitted making a correction in tho figures pertainingto tho transactions during this period when this nurse was aoting fortho cashior-clork. Ho questions why at least at that stage'tho cash wasnot checked precisely.
Loarned Crown Counsel who appeared as amicus curiae at my roquestwas of considerable assistance to mo by referring to a series of cases butlie has not been ablo to cite a single case which has doalt with the questionbefore mo precisely in regard to the standard of proof required beforea Labour Tribunal in Ceylon in a dispute where tixe chargo against thoemployco pertains to an act of zuoral turpitude—such as cheating, fraud,forgery and misappropriation. So far as I could gather his submissionis that tho onus on an Employer is not so heavy as in a Criminal case andtho standard of proof is flexible and it varies according to tho particularcase. It is his submission that even in a case where tho charge alleges acriminal act involving moral turpitude the employer need not prove itboyond reasonablo doubt but at the same time the President should nothold against the employee on a slight preponderance of probabilities. Hosubmits that tho President has to make a just and equitable order andthe procedure he adopts in making such order need not be legalisticand tcchincal. Ho is not bound by tho provisions of tho Evidence-Ordinance. At the same time although a President of a Labour Tribunalis not a ‘ judicial officer ’ as such ho has to act judicially and not
« (1954) 55 N. L. R. 410.6(1048) 80 iV. L. R. 529.
■ (1947) IS jV. L. R. 2CI.4(1906) 69 N.L.R.121.
8 (1915) 46 N. L. R. 246.7(1966) 69 N.L.R.155.
* (1923) 25 A L. R. 1S5.4(1941) A. I.R.(P.C). 93..
• (1956) 1 IF. L. R. 1442 (P. C.).
V'I JAYATJI.AKE, J.—Ceylon University Clerical and Technical' 87
Association. Peradeniya t University oj Ceylon, Peradeniya
arbitrarily. Ho has to exercise his discretion with circumspection andact with caution as a prudent man would in the more important, affairsof his daily life. Tho order contemplated under tho Industrial DisputesAct has to be just and equitable and a President has necessarily to restrainhimself lest tho freedom ho enjoys leads him astray. This submission ofloamod Crown Counsel that in a case such as this tho President shouldadopt a floxiblo standard of proof sounds simple but in actual practiceit docs not appear to be so. It is better said than done 1 In fact whenI put him tho question whether an emploj'co charged with an offoncosuch as this could bo found guilty on suspicion not amounting to proof hisreply was that in tho instant caso although there was a reasonable doubtthe President was justified in finding thisnurso guilty as the evidence wassufficiently cogent to show that she had mado a series of false entrieswith a view to misappropriation of funds belonging to tho University.When I pursued the question whother ho could set out a general principlein rogard to casos involving moral turpitude his submission was that thestandard of proof being flexible unlik{Tih~a~Criminal case a goneral rule.as such cannot bo laid down and every case has to be adjudged on itsmerits. Ho oven sought to roly on tho Public Service Commission Rule54 to show that oven when a Public servant is acquitted in any Criminalproceeding lie cannot by reason of such acquittal claim to be re-instatedor ro-omployod. In my opinion tho answer to the question now boforeme should not bo influenced by this Rulo. Porhaps tho P. S. C. Rule 54which on the faco of it appears to be a serious affront on the Courtsstill remains in this set of Rules in tho interests of State socurity and Ipresume the Government would resort to it only in very exceptionalcircumstances. Now that Crown Counsel has relied on tho P. S. C. Rulesit would be pertinent to noto that in Appendix C there are a set of noteson Disciplinary procedure and note 18 is substantially a faithful reproduc-tion of Section 3 of the Evidence Ordinance in regard to tho proof of afact. Noto 19 provides that tho report of the Inquiring officer shouldalways be based on facts and not on mere conjectures. But inferencesmay bo drawn if they obviously ariso from the facts. It is also importantto note that Rule 53 provides that if in tho course of or at the conclusionof a disciplinary inquiry a criminal offence is disclosed tho Tribunal orperson shall, after recording the findings in the disciplinary proceedingsand awarding such punishment as tho Tribunal or person is authorised toimpose forward tho proceedings to the Attorney-General for such actionas he may deem fit. So that it will be seen that a Public officer lias thebonofit of any charge against him savouring of a criminal offonce beingchecked by no less a person than the Attornoy-Goneral and I presume in acaso where the Attorney-General finds that a prima facie case has beenmado out ho would take action to see that tho officer concerned is chargedin tho Criminal Courts. In a Criminal Court the Crown 'will have toprove the caso beyond reasonable doubt and if there is any such doubtthe benofit of it will have to be given to the accused and acquit him.Thus it would appear that a Public servant enjoys this privilege. Couldit be said that an employeo at the University of Coylon should not be
58WI JAYATI LAKE, J.—Ceylon University Clerical and Technical
Association, Peradeniya v. University of Ceylon, Peradeniya
■entitled to this samo privilege ? Counsel for tho appellant docs not goso far as to say that in every caso -whore there is an olemont of criminality(for instance, minor assault, abuso and intimidation) the charge shouldbe proved beyond reasonable doubt. He submits that at least in a casesuch as the prosent whore the chargo involves moral turpitudo thissalutary practice of giving the benefit of a reasonable doubt to the accusedshould be adopted by the Labour Tribunal.
Mr. Ivumarakulasingham, learned Counsol for tho respondent hasmade a strenuous effort to support tho finding of tho President and hesubmits that proceedings before the Labour Tribunal should not bo equatedwith proceedings in Courts of Law. The relationship of Master andservant is governed by tho terms of the contract of employment and the' object of our Industrial Disputes Act is to provide for tho prevention,investigation and settlement of industrial disputes and for mattersconnected therewith or incidental thereto. Therefore this disputeshould be viewed in the proper perspective. He submits that it is notincumbent on an employer to adopt the standard of proof that is requiredin a Court of Law ; and that it would be open to him to arrivo at aconclusion evon on the balanco of evidence. Ho submits that the learnedPresident was quite justified in not adopting the strict standard ofproof required in a Criminal Court. Tho fact that tho charge againstthis Nurso is in tho nature of a Criminal offence involving moral turpitude•should not make any difference in regard to the standard of proof exceptthat the person sitting in judgment should act as a prudent man. Hefurther submits that an order could be just and equitable although thereis a reasonablo doubt if there is a strong suspicion, as in the instant casowhere the wrong entrios point tho finger of guilt at this nurse. In otherwords as for the. Prosidenfc of a Labour Tribunal, evou if ho has areasonable doubt in his mind as to the commission of the offenco it Avouldbe just and equitable for him to mako an order confirming the dismissalby the omployor by acting on strong suspicion. He relies on the Indiancase of Jubilee Mills v. Baburao Chintamcm and another 4.2.1954. Appln.(Misc. Bom.) No. 349 of 1953-1954 1 LLJ S07 reforred to in Ivharo &Bhido Industrial Law Digest- 1952-54 page 43, where it was held that inan inquiry held by a management on the evidence it was found by themanagement- that the charge of theft against the workmen could not beconclusively proved, but a strong suspicion arose in tho mind of thoManager that the employees must have tampered with and must havebeen responsible for the shortage of Company’s property and thoreforetho Manager ordered that they bo discharged, tho Labour AppellateTribunal went into the evidence and camo to tho conclusion (followingtho principles laid down in Buckingham and Carnatics Mill’s Caso 1952
A. C. 490} that a prima facie case had been made out arid accordedpermission to dischargo thorn, observing, employees in this department(Stores Dept.)'must naturally continue to enjoy the confidence of the
WIJAYATLLAKE, J.—Ceylon University Clerical and Technical
Association, Peradeniya v. University of Ceylon, Peradeniya
management and it -would not bo in the interest of the industry if personsnot enjoying tho confidence of tho management aro thrust upon it to-■work in such a Department
In this context loarncd Crown Counsel has very fairly drawn myattention to tho fact that in India all that a domestic inquiry has toascertain is whether a prima facio case has been made out and the LabourAppellate Tribunal has to ascertain whether in fact tho charge had beenwoll founded and grant permission to discharge the employees concerned.On tho other hand under our Industrial Law the Labour Tribunal undersection 31C of the Act has to mako all such inquiries into tho applicationand hoar all such evidence as tho Tribunal may consider necessary, andthereafter make such order as may appear to the Tribunal to be just andequitable.
Mr. Kumarakulasingham has also relied strongly on Section 36 (iv) of_ tho Act.which provides,that_tjxe Labour Tribunal shall not bo bound byany of the provision of the Evidence Ordinance. Vide C. T. JS. v.Ceylon Transport Workers' Unionx. Ho submits that so long as theemployer has not acted mala fide or indiilgod in unfair labour practice adecision made by him to dismiss an emplo3'oe on strong suspicion,oven in the absence of conclusive proof, could bo upheld by the LabourTribunal and such an order would be just and equitable.
I give below a list of cases cited by Crown Counsel.
On a careful consideration of these submissions I am inclined to agreewith learned Counsel for the appellant that in a caso such as the instantone where there is an allegation of misappropriation connected with,an allegation of falsification of accounts with intent to defraud thestandard of proof should bo as in a Criminal caso and if there is areasonable doubt tho benefit of such doubt should bo given to the person,accused. As Taylor in his treatise on Evidence observes “ in civildisputes when no violation of tho Law is in question, and no legal presump-tion operates in favour of either party the preponderance of probability,duo rogard being had to the burden of proof, may constitute sufficientgrounds for a verdict. To affix on any person tho stigma of crimerequires, however, a high degreo of assurance ; and juries will not bojustified in taking such a step, except on ovidcnce which excludes fromtheir minds all reasonable doubt This passage is quoted with accept-ance by Bertram C.J. in tho case of the Attorney-General v. Rauther2.In fact this standard of proof has been adopted oven in the CivilCourts as shown by Mr. Thevarajah where there is an elementof criminality involving moral turpitude. In the present caso if thisNurse was charged of Criminal misappropriation under Section 386 of thePenal Code or falsification of accounts under Section 467 of the Penal. Code she would have been entitled to the benefit of a reasonable doubt.The Ceylon University has not thought it fit to refer this matter to the
1 {1968) 71 N. L. R. 158; 75 CL L. TV. 33.. .1 {1924) 25 N. L. R. 385.
90WIJAYATJLAKE, J.—Ceylon University Clerical and Technical
Association, Peradeniya v. University of Ceylon, Peradeniya
Police or file privato plaint. It may well bo that the authorities concernedhad good reasons for not doing so. In the circumstances, would it bojust and oquitablc to deprivo this nurse of a right which she would havohad in our.Criminal Courts by tho fact that this dispute has been referredto a Labour Tribunal ? Under Section 467 she would have boon entitledto a non-summary Trial. In mjr view it would be neither just norcquitablo to indiroctly rob her of this right. It used to be said in Englandyoars ago that the dispensation of Equity was measured by the length oftho Chancellor’s foot. Vide Gee v. Pritchard (ISIS) 2 Swan. 414. I donot think that in tho highest scat of learning in our country tho humblestemployee should be deprived of this privilege, in a case involving criminalmoral turpitude. If for instance a dental surgeon or a law lecturerof the University had to face a charge of this nature would it be right tofind him guilty on suspicion, however strong it may be ? Should theIndustrial and Labour Law of this country adopt a different standard ofproof in the case of a minor employeo ? A dismissal of this naturewould amount to a condemnation for life and to do so when there is areasonable doxibt would be, in my opinion, neither just nor equitable. Itwould result in a serious erosion of the Criminal Law of this country andan encroachment, on our Courts of Justice. Far from promoting. Industrial peaco it can lead to difficult situations.
On a scrutiny of tho facts it would appear that tho alleged seven falseentries pertained to a misappropriation of a sum of Rs: SO odd duringa period of 15 days. However, as tho President has observed, theshortago in the cash actually handed over has not been established.Mrs. Cramer who took over from Mrs. Pcrcra has not been called. Shewas a vital witness. Why was she not called to prove the shortage ?Tho matron’s evidence too in this regard is of an indefinite character. Itis also noteworthy that during this qicriod the relations of the matronwith this nurse had been hostile in regard to a loan transaction with aChottiar in which the matron alleges this nurse’s husband had lot herdown. It is quite apparent from the evidence that the system of keepingaccounts at the Dental School had been most unsatisfactory and everyoneappears to havo acted on trust ! It is surprising that the University hadpermitted such a system to be adopted jiarticularly when the store-keeper cum cashier had got into trouble in connection with a similarmatter sometime in 195S or 1959. Although Mr. Kumarakulasinghamsubmits that the charge had been sufficiently proved I find it difficult toagree with him that the onus in this case has been discharged. There isa reasonable doubt and the President who entertained this doubt has notthought it fit to give tho benefit of this doubt to the employeo but in rayopinion she is entitled to it and this boing a misdirection in law I wouldquash the finding of tho learned President that she has boon guilty ofmaking fraudulent ontrios with a view to misappropriation. I mightmontion that although Labour Tribunals arc not bound by tho EvidenceOrdinance it would bo well for them to be conversant with tho wisdomenshrined in it and troat it as a safe guide.
H. N. G. FERNANDO, C.J.—Kodikara v. Caxsitn
91
I have given my anxious consideration to the order I should make inthis case in tho interests of both parties and Industrial peaco and I havecome to the conclusion that this nurse should bo reinstated by the Univer-sity or in tho alternative tho University should be given tho option ofterminating her services on paj'ment of all her back wages and otherattendant benefits up to the dato of termination and also compensationin a sum to bo computed by tho Labour Tribunal on the basis of herperiod of service at this Univorsity and the naturo of her employment.
Tho appellant shall bo entitled to the costs of tho Inquiry beforo theLabour Tribunal which I fix at. Rs. 300 and tho costs of appeal which Ifix at Rs. 250.
Cases cited by Crown Counsel:—1963 A. I. R. G30 (634); I960 Vol. 1Lab. Law Journal 55S; 1957 (44) A. I. R. (S.C.) 232 (239) ; 1957 (44)A. I. R. SS2 (885); (1967) 69 N. L. R, 289; (1962) 65 N. L. R. 566;(1963) 2 A. E. R. 114 ; S.C. 133/1967 L/T 2S002 of 29.10.68 ; (1967) 71N. L. R. 78 ; (1960) 63 N. L.R-36 ; 1960 (47) A,-I. R.(S.C.) 191_; 19G3A. I. R. (S.C.) 1719; S. C. Apjiln. 4S5/64 of 3.9.68; Simonds Vol. 15,page 272 ; 1929 Probate 131 ; 1917 (1) K.B. 352 ; (1942) 44 N. L. R. 97 ;(1937) 39 N. L. R. 494.
Order set aside.