095-NLR-NLR-V-75-UNITED-INDUSTRIAL-LOCAL-GOVERNMENT-AND-GENERAL-WORKERS’-UNION-Appellant-and-IN.pdf
89V
United Industrial Local Government and General Workers' Union v,Independent Newspapers Ltd,
[Ik ¥hb Co put of Apteal of Sai Lahra]
1072 Pmont : Fernando, Jr., Samerawiokrame, J., andSiva Supramanlam, 1,UNITED mDUSTRIAL LOCAL GOVERNMENT AND GENERAL
WORKERS' UNION, Appellant, and INDEPENDENT NEWSPAPERS
LTD., Respondents
0. A. Appeal No. 8 of 18728. 0.109/rO^L, T, Colombo Case No, 2/31623
Labour Tribunal^Ftnding that the termination of the services of s workman wasunjustified=Diserttim of tribunal to order payment of compensation as analternative to reinstatement of me vorkman=FaUute to eaereise such discretion^-.Jurisdiction of Supreme Court to intervene when there has been a failure toconsider material and relevant evidenee^Industrial Disputes Ait (Cap. 131),ss. 31 B (1), SI C, 31 JE>, SS (8), S3 (8), 33 (6).
la an application made under eeetlen 31 B (l) ef the Industrial Disputes Acton behalf ef a workman who had been dismissed from service by his employer,the President ef the Labour Tribunal found on the evldenee that the terminationof the workman's employment was unjustified. Be ordered the employer tareinstate the workman and to pay him a eum of lts. 1,800 as back wages. Ouan appeal preferred by the employer the Supreme Court stated that thecontinuance In service of the workman under the employer might not be Inthe interest of industrial peace or ef the werkman himself and, therefore, variedthe order of the Labour Tribunal by permitting the employer, at hie option, topay the workman, as an alternative to reinstatement, an additional sum ofRe. 1,000 as compensation. The ground on which the Supreme Court variedthe order of the Labour Tribunal was the latter's failure to consider thepractically uneontradioted evldenee In regard to the several previous sets ofmisconduct on the part of the workman.
Held, that the Supreme Court did not aet in assess of Its jurisdiction byvarying the order made by the Labour- Tribunal. Section 31B of theIndustrial Disputes Aet whleh provides that an appsallies to the Supreme Courtonly on a question of law does net preclude the Supreme Court from interveningIn a ease where there has been a failure to consider material and relevantevidence.
11 Before making an order that is just and equitable as provided for In section31 O of the Aot, the tribunal must consider, in eases where reinstatementmay be one of the reliefs,, the question whether it is a fit case for an order forcompensation to be made as an alternative to reinstatement. Evldenee placedbefore the tribunal In regard to the previous eoaduet of the workman will bevery relevant in this connection."
ApPEAL from a judgment of the Supreme Court.
Nitnal Senanayah, with Miss 8, M, Senamtne, for the appellant.B, L, do Silva, with V. Basnayote, for the employer-respondeat.
Cur, edv. mil,030 SIVA SUPKAMANIAM, J.—United Industrial Local Government and
General Workers' Union u. Independent Newspapers Ltd.
November 13, 1972. Siva Sttpramaktam, J.—
The appellant, a trade union, instituted these proceedings before theLabour Tribunal under Section 31 B (1) of the Industrial Disputes Act{hereinafter referred to as the Act) on behalf of one of its members,a workman named N. K. Girigoris, who had been dismissed from servicoby the respondent, a newspaper company which was his employer.The dismissal was on the ground that Girigoris had been found sleepingat a time when he should have been on duty. The President of the■Labour Tribunal before whom the parties and the witnesses gave evidenceretired from office before delivering his order and his successor, on theinvitation of the parties, read the evidence that had been recorded andmade his order. He found on the evidence that the employer hadfailed to establish the charge and that the termination of the workman’semployment was unjustified. He ordered the employer to reinstate theworkman and to pay him a sum of Rs. 1,500 as back wages and Rs. 105as costs.
On an appeal preferred by the employer, the Supreme Court variedthe said order by permitting the employer, at his option, to pay theworkman, as an alternative to reinstatement, an additional sum ofRs. 1,000 as compensation. The union appealed to this Court againstthe order of the Supreme Court. Counsel for the appellant arguedthat the Supreme Court acted in excess of its jurisdiction in effectingthe said variation in the order made by the Labour Tribunal. Hesubmitted that under Section 31 D of the Act an appeal lay to theSupreme Court only on a question of law and that in the present caseno question of law arose to enable the Supreme Court to exercise jurisdic-tion. His criticism of the judgment of the Supreme Court proceededon the basis that the Supreme Court had interfered with the findingof the Labour Tribunal on the facts. Counsel for the respondent tooappears to have assumed in his written submissions that the SupremeCourt had reversed the Tribunal’s finding of fact. This was, perhaps,due to the reason that in the first part of the judgment of the SupremeCourt the learned judge expressed the opinion that the President of theTribunal had misdirected himself on the facts in arriving at his conclusionthat the respondent had failed to establish the charge against the work-man. But, as pointed out by counsel for the respondent in the courseof his submissions in Court, the learned Judge, despite his view that thePresident had wrongly assessed the facts, refrained from interferingwith his finding that the termination of service was unjustified. Heaffirmed the order in regard to reinstatement and the payment of backwages and costs but granted to the respondent an option to pay a sum ofRs. 1,000 as compensation in lieu of reinstatement. In making thesaid order the learned Judge stated that the continuance in serviceof the workman under the respondent may not be in the interest ofindustrial peaoe or of the workman himself.
SIVA STJPKAMAN1AM, J.—United Industrial Local Government and 631
General Workers’ Union v. Independent Newspapers Ltd.
Counsel for the appellant strongly criticised the aforesaid reasonsgiven by the learned Judge for his intervention. He submitted, andthere is much force iii that submission, that questions relating to industrialpeace are matters within the purview of the Labour Tribunal and theother tribunals established under the Act and that those tribunals arebetter equipped to deal with such questions than the Supreme Court.It was also urged that the workman is the best judge of what is in hisown interest and that the Supreme Court was not justified in varyingthe order of the tribunal on that ground.
On a close examination of the judgment of the Supreme Court , however,it seems to us that the true ground on which the learned Judge variedthe order of the tribunal was the President’s failure to consider thepractically uncontradicted evidence before him in regard to the previousconduct of the workman before he decided upon the proper relief to begranted to him.
Section 33 (3) of the Act provides that where an order of the LabourTribunal contains a decision as to the reinstatement in service of anyworkman employed in certain prescribed capacities, the order shall alsocontain a decision as to the payment of compensation as an alternativeto reinstatement. Under Section 33 (5) where an order for reinstatementis made, if the workman so requests, the tribunal may, in lieu ofreinstatement, order the payment of compensation to him. Section33 (6) provides that the aforesaid two sub-sections of section 33 shallnot be construed to limit the power of the tribunal to order the paymentof compensation as an alternative to reinstatement in any caie wherethe tribunal thinks fit so to do. A finding that the termination of serviceof a workman is unjustified will not, therefore, entitle the workmanto demand as of right his reinstatement; nor will such an order beobligatory on the part of the tribunal. The tribunal is vested with adiscretion to decide whether payment of compensation should be orderedos an alternative to reinstatement.
The Labour Tribunal has a wide discretion in this matter. Butin order to. exercise that discretion reasonably, the tribunal shouldconsider all the relevant evidence placed before it. In the words ofLord Greene M. R. in Associated Provincial Picture Houses Ltd. v.Wednesbury1 "a person entrusted with discretion must, so to speak,direct himself properly in law. He must call his own attention to thematters which he is bound to consider. He must exclude from hisconsideration matters which are irrelevant to what he has to consider.If he does not obey those rules, he may truly be said, and often is said,to be acting unreasonably
Before making an order that is just and equitable as provided for inSection 31 (C) of the Act, the tribunal must consider, in cases wherereinstatement may be one of the reliefs, the question whether it is a fitcase for an order for compensation to be made as an alternative to
‘ (1943) I K. B. 223 at p. 220.
s3t
AtnolU V. Btndri&k
reinstatement, Evidence placed before the tribunal in regard to theprevious conduct of the workman will be very relevant in this conneetion,In the present ease, documentary evidence was placed before the tribunalof several previous acts of misconduct on the part of the workman. Butin arriving at his decision the President totally ignored this evidenoe.Where a tribunal is empowered to make findings of fact that areexcluded from review, a Court of Appeal will have jurisdiction to intervenewhere there has been a failure to consider material and relevant evidenoe.It is on this ground that the Supreme Court appears to have intervenedand varied the order made by the President in regard to the reliefsthat should be panted to the workman. In making that order, therefore,the Supreme Court cannot be said to have acted in excess of its jurisdiction.
The appeal fails and is dismissed, In aii the circumstances of this ease,we make no order as to eosts.
Appeal dimiesed.