019-SLLR-SLLR-1993-2-THE-SUPERINTENDENT-STONYCLIFF-GROUP-KOTAGALA-v.-NADARAJAH.pdf
286
Sri Lanka Law Reports
(1993] 2 Sri L.R.
THE SUPERINTENDENT, STONYCLIFF GROUP, KOTAGALA
v.
NADARAJAH
COURT OF APPEALH. W. SENANAYAKE, J.
CA NO. 359/86.
LT NO. 9/13507/85.
JULY 05. 1993.
Industrial Dispute – Transfer – Vacation of Post
The management has a right to transfer a worker from one Estate to anotheron the same conditions and also provided the transfer is not a demotion or resultsin financial loss to the worker. Refusal to comply will result in a vacation of post.
APPEAL from order of Labour Tribunal.
S.M. Fernando, PC with Hyacinth Fernando for Appellant.
T.Sathichinanandan for Applicant – Respondent.
Cur. adv. Vult
October 29, 1993.
W. SENANAYAKE J.
This is an appeal from the order of the Learned President dated06.8.86 where the Tribunal held the termination to be wrongful andunjustified and ordered the Applicant to be reinstated with back wagesin a sum of Rs. 21,567.70 cents, in the alternative he was awarded4 years salary as compensation amounting to Rs. 86,270.40.
The relevant facts briefly are as follows, the Applicant was employedfrom 01.8.62 as Estate Medical Assistant by The Ceylon TeaPlantation Company Ltd. Prior to the Appellants taking over theEstates the Applicant was employed by the Ceylon Tea PlantationCompany Limited according to his application, where in terms of thecontract he was not bound to be transferred to any other estate notowned by the Ceylon Tea Plantation Company and after the vestingthe Applicant continued to be employed on the same conditions ofemployment the Applicant had with the Ceylon Tea Plantation CompanyLimited. The Applicant averred, the First Appellant in breach of thecontract on 11.12.84 transferred him to the Ingestry Group Dickoyawith effect from 15.1.85. The Applicant without prejudice to his rights
CA
The Superintendent, Stonydiff Group, Kotagala v. Nadarajah(H. W. Senanayake, J.)
287
inquired whether the Appellants were prepared to employ him inIngestry Group on the same terms and conditions that he had withthe Ceylon Tea Plantation Company Ltd…. The First Appellant refusedto employ the Applicant on such terms on Ingestry Group and theApplicant continued to work in Stonydiff Group and he informed theAppellants that he cannot comply with the order. On 18.1.85 theApplicant was relieved of his duties and ceased to be employed onStonydiff Group. The Applicant alleged that his services wereconstructively terminated unlawfully or in breach of the contradwithout justification and he prayed that he be reinstated in the postas Estate Medical Assistant on Stonydiff Group, Kotagala.
The Appellants denied termination and pleaded vacation ofemployment by failing to accept the transfer to another Estate in theirOrganisation. They prayed that the Application be dismissed.
The Learned Counsel for the Appellants main submission was thatthe Applicant was in a transferable service and he refused to complywith A19 letter dated 11.12.84. By A19 he was transferred fromStonydiff Group to Ingestry Group with effect from 15.12.84 on thesame terms and conditions enjoyed by him at Stonydiff Group. TheApplicant by letter dated 20.12.84 whilst reserving the right to questionthe legitimacy of the order contained in A19 had questioned whetherhe would be provided the same facilities he enjoys presently andthe other benefits that he had enjoyed under the Ceylon TeaPlantation Company. The Applicant in his application took up theposition that he was not in a transferable service and in page 18of the brief he has stated that he cannot be transferred. The LearnedCounsel submitted that the Tribunal had erred in determining thatthe said transfer was not done in good faith and the Appellants hadterminated the services of the Applicant and that he had not vacatedhis post.
The Applicant was asked to send a certified copy of the originalletter of appointment issued by the Ceylon Plantation Tea CompanyLtd by document A21 and the Applicant by A22 informed that hewas unable to produce the letter and according to his evidence onbeing appointed on 1.8.62 he received the document A14 dated01.8.62 which is silent about transfers but clause 1 states that hehas been appointed to Class 11 Grade 5 which was in accordancewith the C.E.E.F. and C.E.S.U. Joint Agreement on Conditions of
288
Sri Lanka Law Reports
[1993] 2 Sri L.R.
Service for Estate Medical Staff. The Applicant was in the belief thathe was not in a transferable Service and by A24 dated 07.1.85 wherehe had stated ” In any event my contract does not provide for atransfer as proposed by you. Therefore, I regret to inform you thatI cannot comply with your order transferring me to Ingestry GroupDickoya. Enforcement of the said order will be construed by me asconstructive termination of service." There is force in the submissionof the Learned Counsel, the Applicant had challenged the authorityof the Appellants to transfer. The Applicant was unable to adduceany evidence to establish that he was not in the transferable service.He had failed to establish the transfer was done in bad faith or itwas Mala Fide or was an act of victimisation.
The Tribunal in my view had made an order not on the relevantevidence but had taken into consideration irrelevant evidence. It iswell settled law that management has a right to transfer a workerfrom one Estate to another on the same conditions and also providedthe said transfer is not a demotion or there is a financial loss tothe worker. In my view the order of the Tribunal was perverse whenthe Tribunal held that the management should inform the workmanthe reasons for transfer. The evidence disclose that the transfer wasnot on disciplinary grounds and it was a routine transfer. The Applicantby his conduct had refused to comply with a lawful order and therebyvacated his post. I set aside the order of the Tribunal and allow theappeal with costs fixed at Rs. 150. The Applicant will not be debarredfrom obtaining his Statutory dues from the proper forum.
Appeal allowed.