056-NLR-NLR-V-74-THE-SUPERINTENDENT-WE-OYA-GROUP-YATIYANTOTA-and-another-Appellants-and-THE-C.pdf
.Superintendent, We-Oya Group, Yatiyantota «… Ceylon Estate*189
Staffs' Un ion
1971Present: Wijayatilake, J.THE SUPERINTENDENT, WE-OYA GROUP, YATIYANTOTA andanother, Appellants, and THE CEYLON ESTATESSTAFFS’ UNION (on behalf of C. W. W. Dissanaj'ake), RespondentS. G. 146-147/69—Labour Tribunal Case No. R. 1176 (Ralnapura)
Industrial Disputes Act—Section 31D—" J’oini of law ' *—Conduct of workmansubsequent to his dismissal—Relevancy as to re instatement.•
.In this appeal from an order of a Labour Tribunal the question arose“whether the joinder and substitution of parties in the course of the inquiry was'warranted by law.
ISO . WJFAVATILAKE, J.—Superintendent, We-Oyn Group, Yatiyantota t’.
Ceylon Estates Staffs' Union
Held, that, inasmuch as the matters raised in the appeal pertained not onlyto questions of fact but to both questions of law and questions of mixed law. and fact, the appeal could bo entertained.
Held further, that, in considering whether a dismissed workman should bere-instated, the reprehensible conduct of the workman subsequent to thedismissal is not wholly irrelevant.
ApPEAL from an order of a Labour Tribunal.'
G. E. Chilly, Q.C., with B. J. -Fernando and M. A. If (manor, for the1st and 2nd respondents-appollants…
N.Satyendra, with P. Bajasuriya, for the applicant-respondent.
Cur. adv. vult.
February 13, 1971. YVijayatit.akr, J.—
The workman C. W. YV. Dissanayake was employed on Wc-Oya Groupas a Rubber Factory Officer bn a monthly salary front S.5.1963. Hisservices were terminated on 27.9.65 with effect from 31.10.65 on thegrounds of gross misconduct, insubordination and unsatisfactory workin general. The w orkman filed an application before the Labour Tribunalon 6.10.65, pleading that the termination of his services was both unjustand wrongful. Several issues were framed when the case came up forinquiry on 14.8.67. All these issues have been answered in favour of ■the workman. The learned President holds that, tho Superintendent ofthis estate has been possessed by such an overpowering obsession againstthis particular workman that there has been a total absence of goodfaith on the part of the Superintendent in his dealings with him. In .the circumstances, tho learned President holds that this element of badfaith demands reparation of a "more substantial kind than merecompensation and he lias ordered ro-instatement and inter alia awardeda sum of Rs. 6,000 in lieu of backwages.
In limine the question has arisen as to whether the joinder andsubstitution of parties in the course of the inquiry was warranted by law.Mr. Chit-tv lias submitted that tho irregularity is not a mere technicalityas it goes to the very root of the application before the Tribunal ; andthis is a question of law which this Court is entitled to deal with underSection 31 D of Industrial Disputes Act. 1 agree that tho mattersraised in this appeal pertain not only to questions of fact but to bothquestions of law and question of mixed law. and fact and therefore this
WIJAYATILAKJ3, J.—Superintendent, V5c-0ya Group, Yaliyanlota v. 19 i
Ceylon Estates Staffs' Union
Appeal can be entertained bj' this Court. Soo tho judgment- of IT. N. G.Fernando J. in Muhaiviihana v. Commissioner of Inland Revenue1.
With regard to the alleged misjoinder of parties and the complaintmade on behalf of Messrs Caklcra Estates Ltd. that they had tomo toknow about this inquiry shortly beforo 22.7.6S it is quito evident thatneither of these objections can be sustained. When this inquirycommenced ns far back as 14.S.G7, it is significant that the 1st witnesswas Dr. Caldera, the Managing Director of the 2nd respondent Company,and the Company was added as a party and ho had participated in thisinquiry on several dates thereafter. It is also significant that theSuperintendent L. V. Wijeratne was on this estate only from March 1965to May 19G6 and the interest he took in these proceedings, was 011J37 inthe capacity of a witness while the entire burden of the defence wasshouldered .by Dr. Caldera in his capacity as Managing Director. Thosubmission mado by the Counsel appearing for this Company on 22.7.6Sthat the Company is making an appearance for the first time is to say.t he least fantastic. One cannot conceive of a- stronger ease of acquiescence.
On the facts the learned President has held in favour of the workman,but, at the same time, he holds that an incident did occur in which theSuperintendent and the workman were involved, and the reactionsof the workman were the emanations of an angry man. On a totality'of the evidence I do not sco any substantial reason to come to a differentconclusion. With regard to the order for re-instatement Mr. Chittyhas submitted that the conduct of the workman has been such bothbefore and after his termination that it would not be in the interests ofindustrial peace to re-employ him. It would appear that after thotermination of his services this workman had figured in an incident withone Augustine a workman on this estate in which he had conductedhimself in a reprehensible manner. Mr. Satyendra-submits that any.evidence of incidents after the wrongful dismissal would be irrelevant.Mr. Chitty in repty has drawn my attention to the cases of Pearce v. Foster 2and All India Reporter Ltd. v. Dalar3 which deal with the conduct of a -workman after, dismissal in .the field of the law of Master and servant.
In my opinion one cannot rule put this evidence as wholly irrelevant onthe question of re-instatement. However, a Tribunal will have to boextremely cautious in entertaining and acting on such evidonce forreasons which arc quito obvious as the door will be left open for employersto create situations with a view to trapping emplo3 ees.
' . • * ‘ . * ' » *
> (1062) 64R. L.R:217.-: (1SS6) 17 Law Rep. Q.8. 536 at 542.''*'
.-* 1051 A. I. R. Nagpur 412..
182 WIJAYATILAKE, 3.—-Superintendent, We'-Oya Group, Yatiyantota v.
Ceylon Estate* Staffs' Union
I have had the benefit of very learned submissions by Counsel both ontho facts and the Jaw ; and after a careful consideration of the conductof this "workman I should think that it would be just and equitable toboth the parties and also in the interest of the public to provide an optionto tho employer as an alternative to the award made by tho learnedPresident to terminate the services of this workman as from the end ofFebruary 1971 subject to the payment of a sum, calculated on the basis ofEs. 250 per month from tho date of termination (1.11.1965) till theend of February 1971 in lieu of backwage3 and all other benefits if anydue to this workman and costs of Inquiry fixed at Rs. 500. This sum tobe deposited with the Asst. Commissioner of Labour, Avissawella. Aminimum of Rs. 6,000 to be deposited before 1.4.71 and the balance tobe deposited before 1.6.71. Subject to this option to the employer theappeal is dismissed with costs fixed in a sum of Rs. .500.
Appeal mainly dismissed.