042-SLLR-SLLR-1986-V-1-SITHAMPARANATHAN-v.-PEOPLE’S-BANK.pdf
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Fernando v. Bernie De Silva (L. H. De Alwis, J.)
411
SITHAMPARANATHAN
v.PEOPLE'S BANK
COURT OF APPEAL.
SIVA SELLIAH, J. AND JAMEEL. J.,
C.A. No. 34/80.
L.T. No. 1/11038/74.
JANUARY 27 AND 29. 1986.
Industrial Dispute-Bank employee-Standard of proof of misconduct or moralturpitude-Finding of dishonest participation and negligence but no finding of direct guiltof fraud or fraudulent transaction-Conduct not above board-Can dismissal be said tobe for good cause?.■
Allegations involving misconduct or moral turpitude in proceedings before a LabourTribunal must be proved by a balance of probabilities. It is not necessary to call for proofbeyond reasonable doubt.
Where an officer employed in a Bank though not directly guilty of fraud or fraudulenttransaction has been found to have been negligent and. to have dishonestly participatedin withdrawals of money from the Bank, his conduct not being absolutely above board,he is not a fit and proper person to be employed by a Bank.
Per Siva Selliah. J.:
"It is needless to emphasise that the utmost confidence is expected of any officeremployed in a bank. Not only has he to transact business with the public but also he hasto deal with money belonging to customers in the safe custody of the Bank. As such heowes a duty both to the Bank to preserve its fair name and integrity and to the customerwhpse money lies in deposit with the Bank. Integrity and confidence thus areindispensable and where an officer has forfeited such confidence and has been shownup as being involved in any fraudulent or questionable transaction, both public interestand the interest of the Bank demand that he should be removed from such confidence.”
The Ceylon University Clerical and Technical Association, Peradeniya v. The Universityof Ceylon, Peradeniya (1968) 72 NLR 84 not followed.
412
Sri Lanka Law Reports
{1986) 1 ShL.R.
Cases referred to:
Caledonia (Ceylon) Tea & Rubber Estate Ltd. v. Hillman (1977) 79 N.L.R. (1)421.
The Ceylon University Clerical and Technical Association. Peradeniya v. TheUniversity of Ceylon. Peradeniya (1968) 72 N.L.R. 84.
Associated Battery Manufacturers (Ceylon) Ltd. v. United Engineering Workers'Union (1975) 77 N.L.R. 541.
APPEAL from order of Labour Tribunal.
M. S. M. Nazeem. P.C. with S. Sivanathan for appellant.
H. L. de Silva. P.C. with Shirley Fernando for respondent!'
Cur. adwvult.
March 7, 1986.
SIVA SELLIAH, J.
The applicant was a grade IV officer of the People's Bank. He was aledger officer. He made application to the Labour Tribunal on 23.7.74complaining of wrongful dismissal and termination of his services on5.6.74 with effect from 5.6.71. After inquiry which was concluded on22.2,79 the Labour Tribunal made order on 7.1. 80 that thetermination.of applicant's services was for good cause. The applicantthereupon filed this petition of appeal from that order and the appealcomplains .of the long delay between the conclusion of evidence andthe order and that in consequence the conclusions cannot have anyweight. Although thiq ground was not urged at the hearing before thiscourt, I find it regrettable that a period of 10 months has elapsedbefore the Order was pronounced. It is desirable that there should beno room for complaints of this kind. Whatever the congestion of workmay be before the Labour Tribunals, orders must be delivered withreasonable expedition after the reception of evidence. The presentcase where the applicant filed this application for relief on 23.7.74,obtained order thereon 7.1.8G, appealed from that order soon afterand has the appeal determined only in 1986 demonstrates to whatexasperation a litigant seeking relief can be subject.
The applicant was on 24.5.72 served a charge sheet A4 setting outthe 7 charges-these charges related to authorised payment of thefraudulent withdrawal of Rs. 4,500 from Savings Deposit A/c No.9702 on 27.5.71, jointly or severally committing fraud in the saidsum, having unauthorized'possession of savings account pass book
CASithamparanathan v. People's Bank (Siva Selliah. J.)413
belonging to Sydney Amerasinghe. having authorized payment of Rs.995 on savings account No. 10037 on 4. 5. 71 in the absence ofnecessary entries in the relevant pass book, having used an unusedpass book bearing number 10237 subsequently altered to 10043 towithdraw Rs. 4,000 inducing one Gilbert to keep away from work onthe day Rs. 4,500 was fraudulently withdrawn on Account No.10043 and acting jointly or severally in committing the fraudulentwithdrawal of Rs. 4.500 on 25.5.71 on Savings Account No.10043; he was in consequence charged with having committed orattempted to commit fraud,, acted negligently or dishonestly and alsowi{h having conducted himself in a manner not in keeping with hisresponsibility as an officer of the bank.
•
It is in evidence that these matters were referred to the CID but theywere unable to trace the culprit and that at the domestic inquiry held,the applicant was exonerated of the charges. On 5.6.74 his serviceswere terminated. At the inquiry before the Labour Tribunal muchevidence has been led which the learned President has proceeded toanalyse. He has referred to the various charges, discussed theevidence and the procedures involved and come to certain findings offact; he has stated that as far as negligence is concerned in theabsence of the voucher he was unable to come to a finding ofnegligence against the accused regarding the withdrawal of Rs. 4,500on 27.5.71 from Savings Deposit A/c No. 9702; however §fjerexamination of the evidence he concludes that there has beendishonest participation by the applicant in respect of the withdrawal ofthis sum of money; he comes to a similar finding on the evidencepertaining to withdrawal of Rs. 4,000 on 6.6.71 on Pass Book 10043which had the original number 10237. He has also found himnegligent regarding the withdrawal of a sum of Rs. 995 on 4.5.71without the accompanying pass book. The learned counsel forapplicant has contested these findings of fact. In Caledonia (Ceylon)Tea and Rubber Estate Ltd. v. Hillman (1) Sharvananda, J. (as he thenwas) held that-
"Inasmuch as an appeal lies from an order of a Labour Tribunalonly on a question of law an appellant who seeks to have adetermination of fact by the Tribunal set aside, must satisfy theAppellate Court that there was no legal evidence to support theconclusion of facts reached by the Tribunal, or that the finding is notrationally possible and is perverse even with regard to the evidenceon record."
4 74
Sri Lanka Law Reports
11986) 1 SriL.R.
am of the view that the evidence on record substantiates thefinding and conclusions of the Labour Tribunal and that this court willaccordingly not interfere with his findings on the facts.
The learned counsel for applicant has also contended on theauthority of Wijetillake, J's judgment in The Ceylon University Clericaland Technical Association, Peradeniya v. The University of Ceylon,Peradeniya (2) that moral turpitude must be proved as in a criminalcase beyond reasonable doubt. This view has been expresslydissented from both by Vaitilingam. J. in The Associated BatteryManufacturers (Ceylon) Ltd. v. United Enginearing Workers' Union (3)and by Sharvananda, J. in Hillman's case quoted above, both of whomheld that in an allegation involving misconduct or moral turpitudfe inproceedings before a Labour Tribunal, it is not necessary to aall forproof beyond reasonable doubt as in a criminal case but that suchallegation has to be decided on a balance of probabilities Vaitilingam,
J.added that—
"the very elements of the gravity of the charges becoming a partof the whole range of circumstances which are weighed in thebalance, as in every other civil proceeding." (p. 553).
Thus in this case the learned President has acted on correct principles.He has concluded by saying-
"Summing up therefore the evidence led before the Tribunal, I findthat the conduct of the applicant was such that though he has notbeen directly guilty of fraud or fraudulent transaction his conducthas certainly not been absolutely above board. It is my view that theconduct of the applicant has been such that he is not a fit and •proper person to be employed in an establishment of the nature of aBank where large sums of public money are transacted in its day today activities^ In the circumstances I hold that the termination of theapplicant's services were for good cause."
Much exception was taken to this finding by learned counsel for theapplicant on the ground that although there was no finding of guiltagainst the applicant, still he had been found unfit for continuedemployment at the Bank.
It is needless to emphasize that the utmost confidence is expectedof any officer employed in a bank. Not only has he to transact businesswith the public but also he has to deal with money belonging tocustomers in the safe custody of the Bank. As such he owes a dutyboth to the Bank to preserve its fair name and integrity and to thecustomer whose money lies in deposit with the Bank. Integrity and
CASithamparanathan v. People's Bank (Siva Selliah. J.)415
confidence tfjus are indispensable and where an officer has forfeitedsuch confidence as has been shown up as being involved in anyfraudulent or questionable transaction, both public interest and theinterest of the Bank demand that he should be removed from suchconfidence. Thus in the instant case once the learned President hasfound on the evidence that "His conduct has certainly been notabsolutely above board" in respect of the fraudulent transactionreferred to. the continued employment of the applicant is inimical tothe interest of the customers of the Bank and to any confidence thatcansbe reposed in him; nor can the Bank with any sense ofresponsibility continue to employ him and jeopardize its ownreputation and the interest of its customers to whom it is responsible.The learned President was therefore right in holding that he was "not afit and proper person to be employed in an establishment of the natureof a Bank" and in holding that, "the termination of the applicant'sservices was for a good cause."
This appeal is accordingly dismissed. No costs.
JAMEEL, J. – I agree.
Appeal dismissed.