038-SLLR-SLLR-1993-1-UNIVERSITY-OF-SRI-LANKA-NOW-THE-UNIVERSITY-OF-KELANIYA-v.-GINIGE.pdf
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Sri Lanka Law Reports
[1993] ISriLR.
UNIVERSITY OF SRI LANKA(NOW THE UNIVERSITY OF KELANIYA)v.
GINIGE
COURT OF APPEALSENANAYAKE, J.
C.A. NO. 23/84.
LT. NO. 1/6853/73.
SEPTEMBER 15. 1992.
Industrial Law – Termination of services during probation – Misrepresentation andunbecoming conduct of the employee – Right to relief of probationer.
During the period of probation, the employer has the right to terminate the servicesof the employee if he is not satisfied with the employee's work and conduct.Where the employee is guilty of misrepresentation of facts, use of unbecominglanguage and misconduct, the termination is justified and bona fide. If the employerhas acted mala fide the probationer has a right to relief.
Cases referred to :
Ajit Singh v. State of Puiyab (1983) 2 S.C.C. 217.
Piliyandala – Polgasowita Multi Purpose Co-operative Society v. Liyanage74 N.LR. 138.
Richard Pieris & Co. Ltd. v. Jayatunga 1 Sri Kanthas Law Reports 17.
Ceylon Ceramics Corporation v. G. G. Premadasa [1986] 1. Sri LR. 287.
M/s. Elstayel Ltd. v. W. Jayasena S.C. No. 20/80 – C. A. No. 625/85,S.C. Mins, of 6.4.90.
H. N. Gunatitieke v. The Land Reform Commission C.A. 117/85 and144/85 C.A. Minutes of 26.2.91.
Ceylon Trading Co. Ltd., v. United Tea Rubber and Local Produce WorkersUnion (1986) 2 C.A. LR. 82.
APPEAL from judgment of the Labour Tribunal.
K. N. Choksy P.C. with /. S. de Silva for appellant.
A A. de Silva with M. V. de Silva for applicant – respondent.
Cur. adv. vult.
CA
University of Sri Lanka (Now The University of Keianiya) v. Ginige
(Senanayake, J.)
363
April 29, 1993.
SENANAYAKE, J.
This is an appeal from the order of the Learned President of theLabour Tribunal dated 29.12.1983 where the learned President heldthe termination of the services of the applicant to be unjustified andin lieu of reinstatement awarded compensation in a sum of Rs. 50000.
The facts relevant to the dispute are briefly that the applicant bydocument R1 made an application for the post of Warden to theappellant and after two interviews she was selected to the post ofWarden by document R2 on three years probation. According to theapplicant she was appointed on 1.4.71 and her services wereterminated unjustifiably and she prayed that she be reinstated withback wages. The appellant admitted employment and the date oftermination and they relied on R2 the letter of appointment given tothe applicant where she was on three years probation ; and it providedthat her services could be terminated at any time during the periodof probation without any cause being shown ; and a clause of thedocument R2 contained that if on a subsequent occasion the. particulars or information furnished by the applicant in her applicationare found to be false or that she has wilfully not disclosed certaininformation or if she was unfit for the post her appointment wouldbe cancelled. The appellant averred that within a week of theappointment the hostel was closed and the applicant commencedwork as a Warden from 1.4.72. Even though she was paid the fullsalary for the period, the appellant did not have sufficient opportunityto assess the work and capability of the applicant.
The appellant averred that the applicant in R1 made a falsedeclaration in clause 16 of R1 that she served as a sub-warden ofHilda Obeysekera Hall but at a domestic inquiry held by the appellanton 24.11.72, the applicant had admitted that she had not functionedAs a sub-warden of a Hall of Residence of the University of Ceylon,Peradeniya. This misrepresentation was sufficient for the appellantto cancel the appointment in terms of R2.
The applicant had submitted false documents to obtain taxifare. She had been found to leave the hostel in the nightwithout permission. She had made baseless allegations against
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Dassanayake, the Assistant Registrar (Welfare) and also conveyedfalse information to the students of the Hostel pertaining to itsadministration. She had failed to cooperate in the general admin-istration of the campus and she had written letters to the President,the Deputy Registrar and the Assistant Registrar (Welfare) in alanguage not becoming of an University employee and madeunauthorised comments on the proceedings of a committee meetingand sent copies to various members and Students Council Officebearers. She had absented herself frequently from her work place,and removed University property to unauthorised places and failedto return it when ordered.
She failed to report for duty on 1st February 73. The appellanthad lost confidence in the applicant as she was temperamentallynot suited to be a Warden of a girl's Hostel and prayed that theapplication be dismissed.
The applicant in her replication admitted that the period ofprobation was 3 years, and she averred the civil disturbance in thecountry had put matters beyond her control and it was left to theappellant to offer a suitable appointment. She denies that the ap-pellant did not have sufficient opportunity to assess the work andcapability of the applicant. The applicant denies paragraph 5a,b,c,d,f,g,h,j of the appellant's pleading answering paragraph 5(e). Theapplicant's position was that she gave her full cooperation to themanagement of the University and even brought in commendablemeasures to improve discipline of the hostel. Answering para 5(1),the applicant admitted that she reported for duty on the 1st February1973 at 3 p. m. She averred that the appellant failed to stipulateconditions of leave in spite of several requests on her part. Theappellant failed to make satisfactory acting arrangements wheneverthe applicant had to take leave. The appellant failed to make availablesatisfactory living quarters. The failure and negligence on the partof the appellant compelled the applicant to raise the issues constantlywith the employer which affected the employer-employee relationshipadversely.
It was common ground that the applicant was subject to a threeyear period of probation and that her services were discontinuedwithin the said period. There was no allegation in the Application
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University of Sri Lanka (Now The University of Ketaniya) v. Ginige
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or in the replication that the action of the appellant was done malafide or that it was an act of victimisation.
The learned counsel for the appellant submitted, the award ofcompensation to the applicant was an error in law as the applicantwas a probationer. He submitted further, the applicant in her appli-cation R1 had stated that she was a sub-warden which was foundto be factually incorrect and she made baseless allegations againstthe management and published them among the members includingthe President of the Students, Council. He submitted the learnedPresident had referred to the document R32 and the relevant para-graphs of R32 written by the applicant on 15.1.73. “ The applicantattempted to justify the remarks made, stating that the AssistantRegistrar (Student Welfare) once served in the Ceylon TransportBoard as a Bus Inspector and that he had an Island wide reputationas a comedian. I think these remarks made by the respondent markedas R32 are absolutely unbecoming of a subordinate officer to makein regard to her immediate superior. I also find that the letter R32runs into 4 pages. As for the matters mentioned in the body of thisletter the applicant certainly was in error in going into matters whichat the time that she addressed this letter did not seem to be relevant.As such the action of the applicant in referring to these matters wasabsolutely uncalled for. I also would like to refer in particular to theremarks made at R32b which I consider impertinent on the part ofa subordinate and almost bordering on insubordination.
The learned counsel referring to the said passage as assessedin the order of the learned President submitted, one cannot expecta subordinate officer who is also on probation to write official lettersin this manner. In my view there is force in his argument and I agreewith his submission. In my view the learned President had erred inconstruing the language in the document R32 (a) to be borderingonly on the verge of insubordination ; thereby he had erred in law.This document clearly shows that the applicant was not at all suitableto hold the responsible post of a Warden of a University. In R1athe applicant has stated that she worked like a sub-warden in theHilda Obeysekera Hall, whereas she has admitted that there was nosub-warden in Hilda Obeysekera Hall. She has admitted in evidencethat there was no sub-warden in Hilda Obeysekara Hall. She hadincorrectly stated facts in Rla with a deliberate intention of misleadingthe appellant. If she was assisting the warden she could without any
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hesitation have stated that she assisted the warden in her application.The learned President in my view has construed the document mostcharitably in favour of the applicant ; in so construing the documenthe has erred. The applicant deliberately has misrepresented factswhen she stated as a fact what was not factually correct. TheSinhalese language should not be distorted for one's own advantage.When she should have done regarding the work she was performingwas to give a true picture. I am of the view that the learned Presidenthad erred in law in construing the document R1 without referenceto the evidence in the case.
The learned President failed to consider that the applicant wasa Probationer. Probation in the Concise Oxford Dictionary has beenexplained to mean " testing of conduct, character of person " anda " Probationer is one who is on trial or in a state to give proofof certain qualifications for a place or state *.
In the words of the Supreme Court of India in the case of AjitSingh v. State of Punjab <1). * To guard against human error ofjudgment in selecting suitable personnel for service, the new recruitwas put on test for a period before he is absorbed in service or getsa right to the post. A period of probation gave a locus poenitentiaeto the employer to observe the work, ability, efficiency, sincerity andcompetence of the servant and if he is found not suitable for thepost the master reserved a right to dispense with his services withoutanything more at the end of the period which is styled as a periodof probation. A period of probation may vary from post to postor from master to master, and it is not always obligatory on the masterto prescribe a period of probation. It is always open to the employerto employ a person without putting him on probation. The power toput the employee on probation for watching his performance and theperiod during which the performance is to be observed are theprerogative of the employer." I
I am of the view that the employer, if he is dissatisfied with theemployee regarding her conduct and her performance has the rightto terminate the services of the probationer. The applicant in hercorrespondence with the superior officers had resorted to languageunbecoming of a subordinate office working in one of the premiereducational institutions. In official correspondence one does not expectlanguage used in folk lore and folk culture.
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University of Sri Lanka (Now The University ofKeianiya) v. Ginige
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The learned Counsel for the appellant submitted that the applicantin R1 had declared that if she had given any false or incorrect factsin her application, she was liable to be discontinued from servicewithout any compensation. The document R3, the volantary statementmade by her on 27.10.72 was a long statement in Sinhala and inR3a she had admitted that she had not worked as a Sub-Wardenat any stage but only assisted the warden. In my view she couldhave used the same terminology in R1, without being semantic. Iam of the view the learned President not only misconstrued the entryin R1a but also gave an interpretation which was incorrect; therebyhe had erred in law in construing the document R1a. In my viewthe applicant deliberately had made the entry R1a knowing that thesaid entry was not factually correct with the intention of misleadingthe appellant.
The learned Counsel submitted that the award of compensationby the tribunal to a probationer was bad in law. In Pilliyandala-Polgasowita Multi-Purpose Co-operative Society v. Uyanage ® theapplicant was appointed to a post on 15.2.68 on condition that if duringa probationary period of one year the employer was not satisfied withhim, his services were liable to be discontinued. About five monthsafterwards his services were terminated because the employer foundthat the applicant had been charged in 1946 in a Magistrate's Courtfor an offence involving dishonesty and dealt with under section 325of the Criminal Procedure Code. The Supreme Court held that thetermination of the applicant's services was justified. In such a casethe employee is not entitled to an alternative order of compensation.
In Richard Pieris & Co. Ltd. v. Jayatunge (3> Abdul Cader J.observed” If the employer could terminate the services of the workmanat the end of the term of probation without good cause, there is noreason why the same principle should not apply when his servicesare terminated during the period of probation. There is no requirementunder the law that an employee should be forewarned orally or inwriting so that he may adjust himself to the requirements of hisservice. The very word probation implies that he is on trial”.
In Ceylon Ceramics Corporation v. G. G. Premadasa the Courtof Appeal held “ The services of a probationer can be terminatedduring the period of his probation if the services are not considered
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satisfactory. Such termination is not unlawful or unjustifiable providedit is bona fide ".
I am of the view the appellant acted bona fide in terminating theservices of the applicant for not representing facts correctly in theapplication R1 and specifically the entry R1a. There was an inves-tigation and the document R3 establishes that her entry in Rtawas not factually correct. The appellant was within his legal rightsin summarily terminating her services.
The learned counsel for the applicant respondent cited and reliedon the unreported Supreme Court case M/S Elsteyel Ltd. vs. W.Jayasena (S) where the Supreme Court affirmed the award ofcompensation to the applicant who was a probationer on the faceof the appeal. Fernando J. observed " In this case, the parties haveagreed to two specific conditions :
" that if the respondent's services were found to be satisfac-tory, the Appellant was obliged to confirm him at the end ofthe probationary period.
If the respondent's services were found to be unsatisfactoryat the end of that period the appellant had the right to extendthe probationary period, and if during such extended periodthe respondent's services were found to be unsatisfactory, theappellant had the right to terminate his services.
Thus he could not be dismissed without a reason being assigned.It is not clear from the document whether the parties contemplatedthat the appellant should have the right to terminate the respondent'sservices at the end of the initial probationary period if his serviceswere found to be unsatisfactory, or that by expressly so providing,the right to terminate during or at the initial period was impliedlyexcluded. Having regard to the antecedent contract of permanentemployment, and the principle of interpretation Contra profererrterrf,
I am satisfied that the second construction should be preferred.Termination during the initial period of probation is thus not a mattersolely in the appellant's discretion, but had to be justified. Theprobation clause thus excluded the right to terminate without cause.
It was alleged that the respondent had made improper financial leviesfrom his subordinates, but the labour tribunal has held that this was
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not established. That finding is consistent with the certificate issuedafter termination which does not suggest that the respondent wasfound wanting in any way."
It is clear from the observations that the facts of that case haveno relevance to the facts of the instant case. The affirmation of theorder of compensation was on a distinct concept of interpretation ofthe terms of probation and also on the certificate given by therespondent that the applicant's services were satisfactory during the7 months. It is my view the facts and the observations have norelevance to a normal case of probation as in the instant case.
The counsel for the applicant – respondent relied on anotherunreported case of the Court of Appeal H. N. Gunatillake v. The LandReform Commission(6). The facts are not relevant to the instant case.That was a case where the applicant appellant was employed asSuperintendent cum Director Training and was in fact on probationfor a period of two years. His services were terminated for allegedunlawful financial transactions and his services were terminated aftera domestic inquiry where the applicant was found to be guilty butthe learned President had come to a strong finding of fact that thecharges have not been established. Gunasekera, J. observed “ WhilstI am in agreement with the general principle laid down in cases ofRichard Peiris & Co. Ltd. v. Jayatunge (3> and Ceylon CeramicsCorporation v. Premadasa(4) and Ceylon Trading Co. Ltd. v. UnitedTea Rubber and Local Producers Workers Union m. I am of the viewthat these principles have no application to the facts of the instantcase. In my view the right of an Employer to terminate the servicesof an employee during the pendency of the probationary perioddoes not extend to the right to make allegations of a serious natureinvolving moral turpitude and slur on the character and the reputationof an employee and upon failure to establish the allegations to haverecourse to the probationary clause to justify termination. If such asituation is permitted it would be unjust and inequitable in so faras the employee is concerned and for this reason I am unable toagree with the contention of the learned counsel for the employerrespondent." Whilst I am in agreement with the general principleslaid down in these cases it may be observed that they also recognisedthe right of a probationer to be awarded relief if mala tides was provedas against the employer."
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I am in agreement with the above observation but the facts ofthe instant case are based on the false misrepresentation made bythe applicant-respondent. There was also no basis as to how thePresident computed compensation ; there was no reasonable basisin his award. I am of the view that the termination of the applicantwas justifiable for misrepresentation of facts and also for misconductin writing letters to superior officers in unbecoming language as anemployee of the University. The applicant had no absolute orunrestricted lights ; they do not exist and cannot exist in modernsociety. They are subject to such reasonable limitations andregulations as an employee of the University.
I am of the view the order must be just and equitable. The intentionof social legislation is not to keep only one section in clover but tosee that the Employer and Employee would be content and live inIndustrial peace. That does not mean the employee is to be treatedfrom a position of advantage. I am of the view that during the timeof probation the employer has a right to terminate the services if heis not satisfied with the work and conduct. Otherwise the conceptof probation has no application to Industrial law. In such circumstancesthe employee will not be entitled to any relief under the IndustrialDisputes Act. If the employer has acted mala fide the right to getrelief is a recognised concept in our law.
In view of the above reasons I hold the termination of theapplicant's services to be justified. I set aside the order of the learnedPresident and allow the appeal with costs fixed at Rs. 1050.
Appeal allowed.