074-NLR-NLR-V-73-VIJAYA-TEXTILES-LTD-.-Appellant-and-GENERAL-SECRETARY-NATIONAL-EMPOLYEES-UN.pdf
WlJAYATrLAKE, j.— Vijaya Textiles Ltd. v. General Secretary, 403
National Employees Union
1970Present : V.'ijayatilake, J.VI JAY A TEXTILES LTD., Appellant, and GENERAL SECRETARY,NATIONAL EMPLOYEES UNION, Respondent
S. O. 30166-—Labour Tribunal Case Ko. 7{20776
Industrial dispute—Dismissal oj workman—Charge that he assaulted superior officer—Proof—Effect of absence of moral turpitude—Evidence Ordinance (Cap. 14).s. 3—“ Just and equitable order ”.
Whero tho question for decision boforo a Labour Tribunal was xvhothcr aworkman was guilty of misconduct and insubordination in assaulting asuporior officer-—
Held, that a criminal offence not involving moral turpitudo need not boproved boyond reasonable doubt. It may bo provod in torms of tho definitionof “ proved " in section 3 of the Evidence Ordinance.
A PPEAL against an order of a Labour Tribunal.D. Sena ]Vijeicardene, for the e m pi oyer- appellant.
A. Amarasinghe, for the applicant-respondent.
Cur. adv. vult.
January 27, 1970. Wijayatilatcf:, J.—
This is an appeal by the employer, Vijaya Textiles Ltd., from the Orderof the learned President of the Labour Tribunal wherein he has held thatthe dismissal of the workman R. A. Scemon was wrongful and unjusti-fied ; and lie has directed that this workman be reinstated and his backwages be paid for a period of 6 months.
The employer sought to justify the dismissal on the ground that theworkman was guilty of gross misconduct and insubordination in assaultingone Selvanayagam, a Staff Officer, on 3.4.G4. The dismissal had beenmade after a domestic inquiry held by the Managing Director. Thelearned President has held that the burden of proving the assault or otherconduct warranting the dismissal was on the employ er and that on theevidence it could not be said that the employer has discharged thisburden.
It is common ground that there was an incident on 3.4.64 within thepremises of this factory in regard to a dispute over the Sinhalese NewYear festival advance. In December 1903 one Vincent had joined thisCompany and he had made an application for n festival advance of Rs. 40.The workman Seemon had signed tho application as guarantor orsurety. It would appear that this application had been submitted to
<00WIJAYATrLAKE, J.— Vi jay a Textiles Ltd. u. General Secretary,
Rational Employees Union
Sc-lvanayagam who had pointed out that an advance could not be paid tohim as he joined recently. Advances had been paid to other workmen on3.4.G4. Vincent had come to know that one Wimalascna a newer entrant,had been paid this advance and he had requested his guarantor Scemonto inquire from Krishana&wamy, the Works Manager. Therefore on -1thApril both Vincent and Scemon had gone to see Krishnaswamy and at'this stage Sccir.on would appear to have mado some remark toSclvanayagam which he resented and there had been a seuflle. Therearc different versions of what really happened in the course of it. Aswould appear from a reference to the proceedings at the domestic inquiryScemon had sought to give a more colourful version subsequently beforethe President. He has referred to a slap for the first time before thePresident; Learned Counsel for t he appellant had addressed me at lengthon this “addition” to show that .this workman Scemon is utterlyunworthy of credit and the learned President has failed to appreciate thisin his assessment of the evidence. I agree with Counsel that a slap inthe context of our society is most degrading unlike a mere “push ” or a.“pull” in the course of a scutHe and it is not a matter Scemon wouldhave easily forgotton. There can be little doubt that this is anexaggeration to add weight to his version ; but at the same time it isdifficult to believe that Selvanajagam plajed a passive part in thistransaction when Seemon dared to question him why ho was seeking todeprive Vincent of the festival advance when a newer entrant had beenpaid this advance. One can well conceive of Selvanayngam’s reaction tothis query. Industrial peace jiannot be maintained when there is partia-lity shown to workmen. In the instant case it would appear that a newerentrant has in fact been paid the festival advance. The question is whetherit was by “error ” or by “favour One has to assess the reactions ofworkmen in the environment of a factory—particularly on the eve of afestival like the Sinhalese New Year when there are so many items ofexpenditure to meet. I should think taking these circumstances intoconsideration the learned President has adopted a mature and practicalapproach to the facts beforehim and arrived at a conclusion which I amunable to say is erroneous. It is noteworthy that Scemon has been inthis Company since 1942. He had started on a salary of sixteen centsa day when he was only about 12 years of age and at the time of dismissalhe had served for nearly 22 years. Considering his long service one canappreciate that he was something more than a mere cog in the machine.In his own sphere he must have wielded influence among his colleagues.He would have sponsored the cause of Vincent in this context and whenho found that a newer entrant of this Factory had been given specialtreatment he would have felt that this was flagrant injustice and seriouslyprovoked to acting in the manner he did. As foe Selvanayogam’sversion one must not forget the fact that he was comparatively a new hand,having joined the Firm in February 19G1 and Krishnaswamy, the WorksManager, had joined the Firm only three months before the incident andthe workman Wiinalasena to whom the Festival advance had been paid
WIJAYATILAKE. J.— Vijnya Textiles Ltd. v. General Secretary,407
National Employees Union
said to be by an oversight had joined the Firm after Vincent a fewmonths before this incident. These circumstances create certain adversepresumptions against the officers concerned and one can visualise how theworkers who were deprived of this Festival advance would have reactedto thia state of affairs shortly beforo the Sinhalese New Year.
Another feature in this case is that a complaint had been made to thePolice in regard to the alleged assault on Selvanayagam but the Police,despite an investigation, had not filed plaint. One can safely presumethat the Police had good reason not to pursue this matter. On the Policefailing to file plaint why Selvanayagam who complains of obscenelanguage and a violent assault on him did not file a private plaint isa further question.
The relations between Selvanayagam and Seemon too were admittedlystrained. Selvanayagam alleged that Seemon was ill disposed towardshim as he had not helped him (Seemon) to take in one of his friends for ajob in the Company. On the other hand Seemon alleged that Selvana-yagam was angry with him as he (Seemon) had reported him for theftof petrol and also in connection with an incident which led to the dismissalof one Puncliisingho.
It would appear that the learned President has held in favour of theworkman on the balance of evidence as in a Civil proceeding. Mr.Amerasinghe, learned Counsel for the respondent union, submits that in acase before the Labour Tribunal where the charge is one of assault whichis a criminal offence which could be the subject of prosecution it hasto bo proved beyond reasonable doubt like in a criminal proceeding, iresubmits that in the instant case even adopting a lower standard of proofthe learned President has held that the emploj'ef has failed to prove thecharge. Mr. Amarasinghe, submits that thcprinciplo upheld by me thata charge such as misappropriation involving moral turpitudo should beestablished beyond reasonable doubt should bo extended to offencesof a criminal character such as in this case even though there is no elementof moral turpitude. Ceylon University Clerical .fc Technical Associationv. University of Ceylon.1 Mr. Wijcwardcnc, learned Counsel for the appel-lant, whilonot questioning the p-inciplc set out by me in the Universitycase submits that- proceedings before the Labour Tribunal arc of a civilnature and therefore the burden of proof would be as in a civil cass—an a balance of probabilities. I am inclined to agree with him that arhargo tantamount to a criminal offence not involving moral turpitudoaccd not be proved be3'ond reasonable doubt. However, the Presidentms to make, a just and equitable order. In making such order he has tomep in mind the facts of each case—for instance in this caso the longervico of the workman, the strained relations botween tho parties andho failure of tho Police to launch a prosecution against the workman.
(LOSS) 1ZN. L.R. 84*
403
WIJAYATIX.AKE, J.— Vijayn Textiles Ltd. v. General Secretary,
National Employees Union
I should think that in tho circumstances although a Labour Tribunal isnot bound by the Evidence Ordinance, Section 3 of this Ordinance wouldbo a safo guide to cnablo it to make a just and equitable order. What isessential is to exercise the wisdom of a prudent man and Section 3 providesfor this. I am inclined to tho view that whero tlicro is no element ofmoral turpitude, an offenco of a criminal nature has to be proved interms of this section. As I have already observed I see no reason todisagree with the conclusions arrived at by tho learned President.
The question docs arise whether the workman should bo reinstated—particularly in view of the long time he has been under dismissal. Un-fortunately, since this Inquiry was'concludcd before the Labour Tribunalon 3.10.05, the question in regard to tho regularity of tho appointmentof the President was raised and ultimately tho order was deliveredby the President only on 10.0.GO. Although tho Appeal was filed on -2.10.00, it came up for hearing on 21.11.OS and the-adjourned hearingcould not be continued till 25.-11.69, as it was not possible to get a dateconvenient to both Counsel.
In all tho circumstances I order that the workman R. A. Seemon boreinstated with effect from 1.2.1970 with back wages as fixed by Iholearned President upto 1.10.G0, and thereafter at the rate of one week’swages for every month during period 1.10.06 to 31.1.70 at the rate ofRs. 107 per month, or in the alternative it shall be open to the appellantCompany to discontinue him with effect from 1.2.70 subject to thoCompany paying him compensation and other benefits lie may be entitledto taking into consideration his long period of service and the period of hiswrongful dismissal.
f have given my anxious consideration os to whether I-should send thiscase back to the Labour Tribunal to fix the compensation but I thinkto avoid further delay it would be satisfactory if I fix the quantum to bepaid for tho period of this dismissal. I accordingly fix it at a two week’swages for every month at the rate of Rs. 167 per month from the date ofdismissal 27.4.G4, till 31.1.1970. In regard to th.s other benefits, if any,which he may be entitled to it would bo open to him to pursue tho samebefore the Labour Tribunal.
I confirm th9 Order for costs made by the learned President. Thoappellant shall bo entitled to the costs of this Appeal which I fix atRs. 300.
Order varied.