010-SLLR-SLLR-2000-V-1-THE-PUBLIC-TRUSTEE-v.-RATNAYAKE-BANDA.pdf
THE PUBLIC TRUSTEEV
RATNAYAKE BANDA
SUPREME COURTDHEERARATNE, J.
WADUGODAPITIYA, J. ANDISMAIL, J.
SC APPEAL 57/9831st AUGUST, 1999
Industrial dispute – Termination ofservices of a workman – Decision of theLabour Tribunal – Decision of the High Court in appeal – Misdirection by theLabour Tribunal in accepting the workman's defence – Wrong assessmentof evidence by the High Court –
Irahandayaya Estate consisting of 80 acres of coconut was managed bythe appellant (employer). The respondent (workman) was its Superin-tendent. It was the respondent’s duty to count and report the numberof coconuts, both plucked and fallen, at each pick. The selling of the nutswould thereafter be done by appellant. The appellant dismissed therespondent as he was found guilty, at a domestic inquiry of certaincharges including charges of submitting false crop figures. The respond-ent was found to have understated the crop by about 15, 181 nuts. TheLabour Tribunal accepted the respondent's version and ordered that hebe re-instated subject to his transfer to another estate, and ordered oneyear’s back wages. On an appeal by the respondent, the High Courtordered that he be re-instated with full back wages and other emolutionsand promotions due.
Held :
The President of the Labour Tribunal misdirected himself and wronglyaccepted the explanation of the respondent and made his order for re-instatement with full back wages and other emolutions and promotionsdue.
Per Wadugodapitiya. J.
“It is my considered opinion that the order of the learned Judge of theHigh Court is erronious and cannot be allowed to stand. Upon a proper
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assessment of the evidence, it is patent that the explanation given by therespondent is false and must be rejected.'
APPEAL from the judgment of the High Court.
Gomin Dayasiri with Kavinda Dias Abeysinghe for the appellantManohara de Silva for respondent.
Cur. adv. uull.
December 12, 1999WADUGQDAPITIYA, J.
The Respondent (employee) made an application tothe Labour Tribunal under Section 31B of the IndustrialDisputes Act alleging that the Appellant (employer) hadterminated his services unjustly. He sought re-instatementwith back wages.
The Appellant countered this allegation saying that theRespondent, who was employed as the Officer-in-Charge(Superintendent) of the 80 Acre Irahandayawa (coconut) Es-tate, Henagama in the Gampaha District, was dismissed as hewas found quality at a domestic inquiry of certain chargesincluding the charges of submitting false crop figures, failingto account for a number of coconuts and wilfully disobeyinglawful orders given to him by the Appellant.
Before the Labour Tribunal, the Respondent did not callany witness, but was content with his own evidence only. TheAppellant however, called three witnesses, S. Rajapakse,W.K.D.S. Premakumara and M. G. Perera, who were officers ofthe Public Trustee's Department.
At the conclusion of the inquiry the learned Presidentof the Labour Tribunal re-instated the Respondent subject tohis transfer to another estate, and ordered one year’s backwages.
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The Appellant thereupon appealed to the High Court,Western Province. The Respondent also lodged an appealseeking, inter alia, full backwages. Both appeals were heardtogether; at the conclusion of which, the Appellant’s appealwas dismissed, whereas the Respondent was ordered to be re-instated with full back wages and other emoluments andpromotions due.
The Appellant now appeals against the order of theLearned Judge of the High Court.
Irahandaya Estate consists of 80 Acres of coconut and ismanaged by the Appellant. The income of the estate is meantfor charity. The Respondent who was employed as Superin-tendent in charge of the estate has, according to the Appellant,cheated by giving false figures understating the pluck. Coco-nuts are plucked every two months and, the December 1989pluck was the 6th and last one for the year 1989. It is theRespondent’s function and duty to count and report thenumber of coconuts, both plucked and fallen, at each pick.The selling of the nuts would thereafter be done by theAppellant.
After the 6th and last pick for the year 1989, the Respond-ent gave a crop figure of 30,189 coconuts (R4). Thereafter aspetitions were sent against the Respondent, the Appellant hadthe coconuts re-counted by his officers in the presence of theRespondent, and found a total conut of 45,370 nuts (Rl).Thereafter the Respondent himself re-counted the nuts on hisown and sent a letter to the Appellant setting out his new figureof 35,211 nuts (R7). The original counting by the Respondentwas on 26.12.89 and the re-count by the Respondent was on10.1.90. Thus, in the intervening space of about 14 days anadditional 5,022 coconuts suddenly appeared on the Re-spondent’s own showing. The difference between his countand the Appellant’s count of 45,370 nuts is, of course,enormous.
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The detailed crop figures are as follows :Plucked Fallen Totalcoconuts coconuts
On the Respondent’s firstreport dated 26.12.89
(marked R4)-25,550463930,189
On the counting done bythe Appeallant’s Officerson 9.1.90 and their
report (Marked Rl)37,124824645,370
(It must be noted that thiscount was done in thepresence of the Respondentand that the Respondenthas signed the Report Rlagainst his own endorsement“counted in my presence.”)
On the Respondent’s secondreport dated 10.1.90 (markedR7) which he had done on hisown, without notice to theAppellant and without the
Appellant’s consent)–35,21 1
The Respondent’s explanation (A 11) is that the extra5,022 nuts shown oh his second count, were fallen coconutsbelonging to the next pick, viz the 1st pick for 1990: i. e. thatthey fell during the 14 days between 26.12.89 and 10.1.90,immediately after the earlier 6th pick for 1989 was completed.
The Learned President of the Labour Tribunal acceptedwithout question, the Respondent’s version that the suddenand extraordinary increase of5,022 coconuts in the very shortperiod of about 14 days, as revealed in the Respondent’s ownreport R4 and R7, was due to fallen coconuts.
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On appeal, the Learned High Court Judge in turn, havingmiscalculated the period of time as being from 9.12.89 (not26.12.89) to 10.1.90 (viz : one whole month), took the viewthat, inasmuch as this was a very large estate, it was possiblefor a large number of coconuts to have fallen during that wholemonth. However, according to the Respondent’s own report R4(dated 26.12.89), the total number of fallen coconuts for thatpick; which fallen coconuts were included in his grand total of30,189 coconuts for his self-same pick, was only 4,639. It isindeed quite impossible that at the counting which was doneat the end of the 6th pick, the fallen nuts for the 2 – monthperiod amounted to 4639, whereas according to the Respond-ent, 5022 nuts fell by themselves during a period of about 14days immediately after the 6th pick.
As Learned Counsel for the Appellant rightly pointed out,this simply could not have happened.
On the contrary, it must be remembered that the countingdone by the Appellant’s officers in the presence of the Respond-ent revealed a figure of 45,370 coconuts which represents anenormous difference of 15,181 coconuts!
Learned Counsel for the Respondent in reply submittedthat the Respondent had served about four or five years on thisestate and that he had had a good record, and that petitionswere sent against him by persons with ulterior motives be-cause he looked after the estate well and did not allow theftsto take place. He also urged that the count done by theAppellant as reflected in R1 was upon a surprise check andwas done after sun-down with the aid of the headlights of thePublic Trustee’s jeeps. He said that the Appellant's figure of45,370 coconuts (Rl) cannot be taken as correct.
For the purposes of argument, I am prepared to ignore theAppellant's figure of 45,370 coconuts. But, there still remains
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the Respondent's own figure of 35.211 nuts on the secondcount that he himself did. Even assuming (without accepting)that the Respondent's own figure of 35.21 1 nuts is the correctone, there still remains the difference of 5022 coconuts forwhich, the Respondent in my considered view, has given nosatisfactory or acceptable explanation.
As set out above, the Learned President of the LabourTribunal, having misdirected himself and wrongly acceptedthe "fallen coconuts” explanation of the Respondent, re-instated the Respondent with one year's back wages, and goingfurther, the Learned Judge of the High Court having himselffallen into error in the calculation of the time factor and himselfwrongly accepting the Respondent’s "fallen coconuts” expla-nation without critical analysis of the facts, re-instated theRespondent with full back wages, plus other emoluments andpromotions due.
It is my considered opinion that the order of the LearnedJudge of the High Court is erroneous and cannot be allowed tostand. Upon a proper assessment of the evidence, it is patentthat the explanation given by the Respondent is false and mustbe rejected. In fact, on the contrary, I see no reason fordisbelieving the accuracy of the count done by the officers ofthe Public Trustee's Department, which yielded 45,370 coco-nuts. When one compares this figure with the original figuregiven by the Respondent in his first Report R4, (viz : 30,189nuts) one cannot fail but see the enormity of the thievery thathas taken place, for, the Respondent has boldly understatedthe crop by no less that 15,181 coconuts! At to-day's price ofcoconuts, this is a tidy sum indeed!
For the reasons set out above, I set aside the order of theLearned Judge of the High Court marked A3. I also set asidethe order of the Learned President of the Labour Tribunaldated 14.12.95
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I allow the appeal of the Appellant with costs fixed atRs. 10,000/.
DHEERARATNE, J.I agree.
ISMAIL, J.I agree.
Appeal allowed; orders oj the High Court and the LabourTribunal set aside.