100-NLR-NLR-V-63-THE-CEYLON-WORKERS’-CONGRESS-on-behalf-of-K.-Ramaswamy-Appellant-and-THE-SUP.pdf
630 The Ceylon Workers' Congress v. Superintendent, KallebokJca Estate
1962Present : Tambiah, J.THE CEYLON WORKERS’ CONGRESS (on behalf of K. Ramasamy),Appellant, and THE SUPERINTENDENT, KALLEBOKKA ESTATE,RespondentS. O. 3 j 1961—Labour Tribunal, 2351
Industrial Disputes Act (Cap. 131 of Legislative Enactments, 1956 Edn.), as amendedby Act No. 62 of 1957—Sections 31B (1) (a), 31 C (/)—Termination ofa workman'8 services by his employer—Inquiry by Labour Tribunal—Scope ofthe functions and jurisdiction of a Labour Tribunal—Duty of Tribunal tofollow principles of natural justice.
In an inquiry held under section 31 C (1) of the Industrial Disputes Act,as amended by Act No. 62 of 1957, it is incumbent upon the Labour Tribunal tofollow principles of natural justice.
Although a bona fide inquiry may have been held by the employer before hedismissed a workman, the Labour Tribunal cannot refuse to hear evidencetendered by the workman, if the workman wishes to prove that the terminationof his services was not just and equitable.
The Labour Tribunal is given a wider jurisdiction than Courts of Law andcan order the re-instatement of workmen even if their services have been law-fully terminated.
The services of R, who was a worker employed by the respondent on Kallo-bokka Estate, were terminated on the 4th April 1960. Before R was dismissedan inquiry was held by the Assistant Superintendent of Rallebokka Estateon the 27th February 1960 in regard to the question whether R had attemptedto incite a labourer or labourers to violence. At that inquiry, which commenced
537
TAMBIAH, J.—The Ceylon Workers' Congress v. Superintendent,
KcUlebokka Estate
at 2.30 p.m., R, when he was asked at 7 p.m. to make a statement, refused todo so on the ground that his child was ill and that he had to trudge a longdistance to reach his place of residence. It’s services were thereafter terminatedon the 4th April 1960 on the grounds that he (a) attempted to incite a laboureror labourers to violence, (b) failed to remain till the conclusion of the inquiryheld on the 27th February.
At the inquiry held by the President of the Labour Tribunal in regard to thequestion whether It incited labourers to violence, Counsel for the respondentproduced tbe record of the evidence led before the Assistant Superintendenton the 27th February and invited the Labour Tribunal to act on the evidenceof five women who were called before the Assistant Superintendent. TheLabour Tribunal accepted and acted on the contents of the inquiry notes of theAssistant Superintendent although the five women were neither called to giveevidence before the Labour Tribunal nor tendered to be cross-examined on behalfof R.
Held, that a workman is liable to be dismissed if he incites a labourer againsthis employer. However, in accepting tbe contents of the Assistant Superin-tendent’s inquiry notes, which contained the testimony of the five women, whowere not called before the Labour Tribunal, the President of the LabourTribunal had grossly misdirected himself. The Labour Tribunal erred in notfollowing the audi alteram partem rule, one of the fundamental principles ofnatural justice, and, for this reason alone, the order of the Labour- Tribunalshould be set aside.
Held further, that there was no act of indiscipline on the part of R when, on the27th February, he left the inquiry after 7 p.m. without making a statement.
.A.PPEAL from an order of a Labour Tribunal,
Colvin R. de Silva, with S. C. Crossette-Thambiah, for the appellant.
V. Perera, Q.C., with L. Kadirgamar, for the employer-respondent.
Cur. adv. wit.
January 15, 1962. Tambiah, J.—
This is an appeal from the order of the Industrial Tribunal dismissingtbe application of the appellant Union who claimed that the services ofone Ramasamy, a worker employed by the respondent, were wrongfullyterminated on the 4th of April 1960, on the grounds that he had attemptedto incite a labourer or labourers to violence and also that he had refusedto remain till the conclusion of the inquiry held into this matter onthe 27th of February 1960. The appellant Union, on behalf of its memberRamasamy, prayed for the re-instatement of Ramasamy on the groundthat his dismissal was wrongful and unjustified'. The respondent,however, maintained that the dismissal was justified for reasons set outin the notice of discontinuance.
At the inquiry held by the President of the Labour Tribunal, Mr. G.Rath watte, the Assistant Superintendent of Kalebokke Estate, and someother witnesses were summoned to prove that an inquiry was in fact
538 TAMBIAH, J.—The Gey Ion Workers' Congress v. Superintendent,
KcUlebokka Estate
held by Mr. Rathwatte before Eamasamy’s services were terminated.Mr. Rathwatte, in his evidence, stated that the inquiry had commencedat 2.30 p.m. and at 7 p.m. when he asked Ramasamy to make a state-ment, the latter refused to do so on the ground that his child was illand that he had to trudge a long distance to reach his place of residence.Ramasamy gave evidence denying the charges framed against him.
The President of the Labour Tribunal, in the course of his order, statedthat the questions for determination before him were whether Ramasamywas guilty of the charges that he : (a) attempted to incite a labourer orlabourers to violence ; (6) failed to remain till the conclusion of the inquiryheld on the 27th of February 1960.
On the issue whether Ramasamy incited a labourer or labourers, therespondent called no witnesses who testified that they saw or heardRamasamy inciting a labourer or labourers. In the course of the inquiry,counsel for the respondent produced the record of the evidence led beforeMr. Rathwatte, held on 27.2.1960, marked R3, and invited the Tribunalto act on the evidence of five women who were called before Mr. Rath-watte. These five women had stated before Mr. Rathwatte that theysaw Ramasamy saying something to a labourer. The interpretation ofthe words alleged to have been used by Ramasamy was a matter of con-troversy before the Tribunal. The President of the Labour Tribunalacceded to the request of the counsel for the respondent by perusingthe evidence of these five women and acting upon it.
In the course of his order, the President of the Labour Tribunal statedas follows :
“ I have perused the inquiry notes wherein the statements of the5 women workers had been recorded. I must say the common deno-minator in these statements is that Ramasamy did use the words“ why did you not cut or slipper I regret that I cannot accept thedefence that there has been any misconstruction placed on the word“ vettu ”. Furthermore, all 5 workers whose statements had beenrecorded had been subject to a lengthy cross-examination of Ramasamy.No suggestion of any misunderstanding of the word “ vettu ” has beenmade. It was also submitted by the Legal Secretary of the applicantUnion that these remarks of Ramasamy had been exaggerated by theEstate Committee. I regret I cannot accept these defences. I acceptthe inquiry notes as a correct record of the proceedings and hold thatRamasamy did use the words complained and thereby did attempt toincite a labourer or labourers to violence on the 18th of January 1960.’^
In accepting the contents of the inquiry notes, which contained thetestimony of the five women who were not called before him, the Presi-dent of the Labour Tribunal bad grossly misdirected himself. Thesewomen were neither called to give evidence before the Labour Tribunalnor was any opportunity given to the appellant to cross-examine them onbehalf of Ramasamy. The Labour Tribunal has erred in not followingthe avdi alteram partem rule, one of the fundamental principles of natural
TAMBIAH, J.—The Ceylon Workers' Congress v. Superintendent,
Kallebokka Estate
539
justice, at the inquiry and, for this reason alone, the order of the LabourTribunal should be set aside and the application of the appellant Unionshould be sent for a proper inquiry before another Labour Tribunal.
At an inquiry, the Labour Tribunal is under a duty to make all such,inquiries into an application as the Tribunal “ may consider necessary,hear such evidence as may be tendered by the applicant and anyperson affected by the application, and thereafter make such order asmay appear to the Tribunal to be just and equitable ” (vide section 31C (1)of the. Industrial Disputes Act (Cap. 131 of the Revised LegislativeEnactments (1956 Ed.), as amended by Act No. 62 of 1957). Althoughthe provisions of the Evidence Ordinance (Cap. 14 of the Revised Legis-lative Enactments (1956 Ed) ), are not applicable at such inquiries, it isincumbent upon the Tribunal to follow principles of natural justice.
The President of the Labour Tribunal further misdirected himselfwhen he said “ I must say that this Tribunal was the forum whereevidence of Ramasamy’s innocence could have been led. No evidence hasbeen led and I have only the uncorroborated bald denial of Ramasamy ”.There was no Tribunal envisaged by the law before winch Ramasamyhas failed to establish his innocence and, even if one assumes that theinquiry held by Mr. Rathwatte could be considered to be a DomesticTribunal, nevertheless the decision of Mr. Rathwatte was greatlyinfluenced by the Superintendent of Kallebokke Estate. Indeed, it isdifficult to find out whether the decision to discontinue Ramasamy’sservices was that of Mr. Rathwatte or of the Superintendent of Kalle-bokke Estate.
The counsel for the appellant contended that there is no requirementof our law that there should be an inquiry by an employer before theservices of a labourer are terminated, although it is one of the circumstanceswhich Should be taken into account in deciding the issue whether anemployer acted bona fide. He pointed out that in India it is obligatoryon some business establishments, which have adopted certain schedulesof the Indian Industrial Employment (Standing Orders) Act, XX of1946, to hold an inquiry before dismissing a labourer and that, in Ceylon,there is no such statutory requirement but it is a factor which may wellbe taken into account in considering the bona fides of an employer whodismisses an employee. The counsel for the appellant also urged that theframework of the Industrial Disputes Act (Cap. 131 as amended byAct No. 62 of 1957) does not envisage the holding of a domestic inquiryobligator}7 and, therefore, the President of the Labour Tribunal hasmisdirected himself in law by holding that the proper tribunal, beforewhich the innocence of Ramasamy should be established, was the inquiryheld by Mr. Rathwatte.
The counsel for the respondent, however, contended that if an employerhas held an inquiry and he has made a bona fide decision to discontinuethe services of an emplo}Ter, the Labour Tribunal cannot go into themerits of the issues which were tried at the inquiry. The counsel for the
54:0
TAM BI AH, J.—The Ceylon Workers' Congress v. Superintendent,
Kallebokka Estate
respondent also submitted that an Industrial Tribunal, in making any, order which is just and equitable, cannot canvass the findings of a domes-tic inquiry if they were made bona fide. In support of this contention,he cited the case of Indian Iron and Steel Company, Limited, and Anotherand their workmen1. In that case, the question as to when a Court willinterfere with the order of dismissal made by an employer after a mana-gerial or domestic inquiry, was considered by three judges of the SupremeCourt of India, who, in the course of their judgment, made the followingobservations :
“ Undoubtedly, the management of a concern has power to directits own internal administration and discipline, but the power is notunlimited and when a dispute arises, industrial tribunals have beengiven power to see whether the termination of service of a workmanis justified and to give appropriate relief. In cases of dismissal onmisconduct the Tribunal does not however act as a Court of Appealand substitute its own judgment for that of the management.
It will interfere :—
(i) when there is a want of faith,
{ii) when there is victimisation or unfair labour practice,
when the management has been guilty of a basic error or violation
of the principles of natural justice, and
when on the materials the finding is completely baseless or
perverse ”.
The ratio decidendi in the above case has been followed in other casesin India (vide Doom Dooma Tea Co., Ltd. v. Assam Chah KarmachariSangha and another 2 ; Woodbrair arid Sussex Estates v. their workmen(Tamilnad Plantations Workers’ Union)3; Hendricks & Sons v. IndustrialTribunal, Andra Pradesh, and others (Automobile Workers Union, Secun-derabad) 4.
In order to appreciate the rule laid down by the Supreme Court ofIndia in Indian Iron and Steel Company, Limited, and Another v. theirworkmen (supra), it is necessary to consider briefly the framework of theIndian legislation and the practice and procedure pertaining to thesematters adopted in India. The Indian Industrial Employment (StandingOrders) Act (XX of 1946), as amended by the subsequent Acts, requiresemployers in industrial establishments, which employ one hundred ormore workmen, to define formally the conditions of employment. Item10 in the Schedule of this Act states that one of the matters to be providedfor in the Standing Orders under the Act is the “ Suspension or dis-missal for misconduct, and acts or omissions which constitute misconduct”.Under the Act, notice of such Standing Orders has to be forwarded
1 (1958) I. E. L. J. 260.
8 (1260) 2 Indian Labour Law Journal, p. 56.
(I960) 2 Indian Labour Law Journal, p. 673.
(1960) 2 Indian Labour Law Journal, p. 484.
541
TAMBIAH, J.—The Ceylon Workers' Congress v. Superintendent,
KaUebokka Estate
by the employer to a “ certifying authority ” within six months of thedate of the Act. The “ certifying authority ”, on the receipt of suchdraft, has to forward a copy of the same to the workmen or trade unionconcerned, and after hearing both the employer and the workmen, certifythe draft standing orders, after making the necessary modifications (ifany). (Vide sections 3 and 5 of the Industrial Employment (StandingOrders) Act XX of 1946). Section 3 (2) of this Act lays down thatwhere model Standing Orders have been prescribed, the proposedStanding Orders shall be, so far as is practicable, in conformity withsuch model. In exercise of the powers conferred by-section 15, read withclause (b) of section 2, of the Industrial Employment (Standing Orders)Act, 1946, the Central Government made certain rules called the IndustrialEmployment (Standing Orders) Central Rules of 1946. Schedule 1 ofthese rules provides a set of “ Model Standing Orders Item 14 ofthese model Standing Orders provides that “no order of dismissal shallbe made unless the workman concerned is informed in writing of thealleged misconduct and is given an opportunity to explain the circum-stances alleged against him The approval of the Manager of theestablishment or where there is no Manager, of the employer is requiredin every case of dismissal (Ibid.). In awarding punishment under thisStanding Order, the Manager has to take into account the gravity of themisconduct, the previous record, if any, of the workman and any otherextenuating or aggravating circumstances, that may exist (vide 14 (6) ofthe Schedule 1 of the Industrial Employment (Standing Orders) CentralRules, 1946).
The Industrial Disputes Act (XIV of 1947), as amended by the laterActs, provides for the settling of labour disputes by tribunals and, undersection 7A of this Act, Industrial Tribunals could be created by theappropriate (provisional) government for the adjudication of industrialdisputes in matters set out in schedules 2 and 3 of the said Act. One ofthe matters dealt with in schedule 2 is “ the discharge or dismissal ofworkmen, including re-instatement ”. When an industrial dispute isreferred to a Labour Tribunal, it has to hold an inquiry and send itsaward to the appropriate Government (vide section 15) which award, aftera certain number of days, becomes enforceable (vide section 17A).
Hence, in India, there is a legal obligation cast on the employer, whoemploys a hundred or more workers, to hold an inquiry before he dismissesthe employee and, under the Standing Orders, a workman has to appearat such an inquiry. The statutory provisions of India require the holdingof a domestic inquiry and the Indian courts have taken the view that thefindings of a domestic tribunal would be canvassed by the courts only inthe circumstances set out by the Supreme Court in Indian Iron and SteelCompany, Limited, and Another v. their workmen (supra).
In Ceylon, however, there is no statutory provision similar to theIndustrial Employment (Standing Orders) Act (supra) as found in India,and consequently there is no statutory obligation to hold inquiries in the
642
TAMBIAH, J.—The Ceylon Workers' Congress v. Superintendent,
Kallebokka Estate
manner prescribed by the Indian statute. The amended IndustrialDisputes Act {Cap. 131 of the Legislative Enactments of Ceylon (1956 Ed),as amended by Act No. 62 of 1957), empowers the Industrial Court togrant relief or redress to a workman in respect of “ the termination of hisservices by his employer ”—(vide section 31B (1) (a) Ibid.). When anapplication is made to a Labour Tribunal it is the duty of the Tribunalto make all inquiries and hear such evidence as may be tendered by theapplicant and any person affected by the application and thereafter makesuch order as may appear to the Tribunal to be just and equitable (videsection 31C Ibid.).
Therefore, although an inquiry may be held by an employer, who actsbona fide in dismissing a workman, the Labour Tribunal cannot refuseto hear evidence tendered by the worker concerned, who might wishto prove that the termination of his services was not just and equitable.Although, by subjective standards of an employer, a dismissal may bebona fide and just and equitable, nevertheless when looked at objectively,it may be unjust and inequitable. In making an order of dismissal, anemployer should not act capriciously ; lack of bona fides, victimisation,unfair labour practices or a perverse finding of an employer at an inquiryheld by him, are all circumstances which may be taken into considerationby the Labour Tribunal in reversing the order of an employer, but theyare by no means exhaustive.
In Horner v. Franklin1 the Court of Appeal of England construed themeaning of the phrase “ just and equitable ” as may appear to the CountyCourt appearing in Sect. 2, sub-sect. 2, of the Factory and Workshop Actof 1891. This section casts the burden of providing fire escapes on theowner of a building where the factory is situated. If the owner allegesthat it is the duty of the occupier to comply with this requirement, hecould apply to the County Court which, after hearing the application,is empowered to make such orders as appear to the Court just andequitable in the circumstances. Referring to the jurisdiction of theHigh Court to enforce the terms of the contract, Romer J. said ((1905)1 K. B. at p. 489) : “ If the jurisdiction of the High Court in such acase as this was not ousted, there would be two different jurisdictionsdealing with the same question between the same parties on differentfootings, the one bound to decide the point strictly according to theterms of the tenancy, the other, according to the very words of the Act,having a large discretion, and being entitled to do what is * just andequitable under all the circumstances of the case ’ Whenever a Tribu-nal is given the power to decide a matter justly and equitably, it is given adiscretion (vide Daniel v. Rickett Cockerell & Co., and Raymond1 2). There-fore, the Industrial Disputes Act, as amended, gives a discretion to theLabour Tribunal to make an order which may appear just and equitableand such a jurisdiction cannot be whittled away by artificial restrictions.
1{1905) 1 K. B. 479.
2{1938) 2 K. B. 325 per Hilbery J., at page 326.
TAMBIAH, J.—The Ceylon Workers' Congress v. Superintendent,
Kallebokka Estate
643
It was also urged on behalf of the respondent that the term “ termi-nation ” in section 31 (c) of the amended Industrial Disputes Act (supra)means unlawful termination and, therefore, the Industrial Tribunal canonly deal with cases of unlawful termination of services. There is nonecessity to read into an enactment words which do not occur in it unless,in the context, it is necessary to import such words. The IndustrialTribunal is given a wider jurisdiction than Courts of Law and could orderthe re-instatement of workmen whose services have been even lawfullyterminated. Section 31B of the amended Industrial Disputes Act (supra)gives the power to a Labour tribunal to grant any relief or redress to aworkman upon an application made under the said section, notwith-standing anything to the contrary in any contract of service betweenhim and his employers. The purpose of the amended Industrial DisputesAct is not merely to enforce legal obligations but to do social justice andpreserve “ industrial peace ”.
The observations of the Supreme Court of India in Punjab NationalBank, Ltd. v. Sri Bam Kunwar, Industrial Tribunal, Delhi, and others1are helpful in understanding the functions of a Labour Tribunal. TheCourt said " It may be conceded that the jurisdiction of an IndustrialTribunal is not invoked for the enforcement of mere contractual rightsand liabilities of the parties to the dispute referred to the Tribunal foradjudication ; its jurisdiction in the matter of adjudication of an indus-trial dispute is wider and more flexible. All the same it is not an arbitraryjurisdiction ; it may be readily conceded that an employee is as muchentitled to a fair deal as an employer and he must be protected fromvictimisation and unfair labour practice, but “ social justice ” does notmean that reason and fairness must always yield to the convenience of aparty—convenience of the employee at the cost of the employer as inthis case—in an adjudication proceeding. Such one-sided or partialview is really next of kin to caprice or humour
In the instant case, the President of the Labour Tribunal has correctlyaddressed his mind in stating that one of the issues is whether Kamasamyincited a labourer or labourers. Inciting a labourer against his employeris a serious matter and entitles an employer to terminate his services.However, as the Labour Tribunal has not considered the evidence ofRamasamy and has misdirected itself by acting on the statement of thefive women who were not called before the Tribunal, I have to setaside its order and remit this matter for a fresh inquiry before anotherLabour Tribunal.
In my view, the President of the Labour Tribunal Jaas erred in holdingagainst Ramasamy on the second issue before him, namely whetherRamasamy had failed to remain till the conclusion of the inquiry held on26.2.1960. There is no act of indiscipline on the part of Ramasamy whenhe left the inquiry at that late hour on the inquiry date. There is no
1 Supreme Court Digest of Labour Law Cases by Kher (Thacker db Company,Ltd., Bombay) p. 1 db 2.
■644
Tenne v. Ekanayake
legal obligation for Eamasamy to have remained after 7 p.m. and make astatement in the course of a protracted inquiry which lasted about fourand a half hours. Mr. Rathwatte should have allowed the reasonableapplication of Ramasamy for a postponement of the inquiry.
I set aside the order of the President of the Labour Tribunal and sendthe case for a fresh inquiry before another Labour Tribunal on the issuewhether Ramasamy incited a labourer or labourers as alleged by therespondent. At the fresh inquiry, the Labour Tribunal will hear anyevidence which will be tendered by either side on this matter and maymake such inquiries as are necessary before making an order which isjust and equitable. The appellant is entitled to costs fixed at Rs. 105.
Case sent back for a fresh inquiry.