ASSOCIATED BATTERY MANUFACTURERS (Ceylon) LTD., Appellant, and UNITED ENGINEERIN

093-NLR-NLR-V-77-ASSOCIATED-BATTERY-MANUFACTURERS-Ceylon-LTD.-Appellant-and-UNITED-ENGINEERIN.pdf


VYTHIALINGAM, .J —Associated Battery Manufacturers (Ceylon) Ltd. v. 541
United Engineering Workers' Union
Present: Perera, J. and Vythialingam, J.
ASSOCIATED BATTERY MANUFACTURERS (Ceylon) LTD.:Appellant, and UNITED ENGINEERING WORKERS UNION,
Respondent
S. C. 253/73—Labour Tribunal No. 16/868/71
Labour Tribunal—Inquiry into a criminal act involving moral turpitude—Standard of proof required—Industrial Disputes Act sections31 (B) (1), 31 (B) (3), 31 (c) (1), 36 (4), 39 (1) (ff).
Where in an inquiry before a Labour Tribunal it was allegedthat the reason for the termination of employment was that theworkman was guilty of a criminal act involving moral turpitude,the allegation need not be established by proof beyond reasonabledoubt as in a criminal case. Such an allegation has to be decidedon a balance 9f probability, the very elements of the gravity of thecharge becoming a part of the whole range of circumstances whichare weighed in the balance, as in every other civil proceeding.
The Ceylon University Clerical and Technical Association,Peradeniya v. University of Ceylon, Peradeniya, 72 N.L.R. 84 notfollowed.
A. PPEAL from an Order of a Labour Tribunal.
N.Satyendra, for the Respondent-Appellant.
R. I. Obeysekera, with A. W. Yusuf for the Applicant-kespondent.
Cur. adv. vult.
February 27, 1975. Vythialingam, J.—
This is an appeal by the employer from an order of the Presi-# dent of the Labour Tribunal directing the reinstatement of theworkman together with the payment of one year’s full backwages, and if for any reason the employer was not disposed toreinstate the workman, for the payment of three years’ salarywith a further additional six month’s wages as compensation forloss of employment. The employment of the workman wasterminated because, after a domestic inquiry he was found guiltyof having committed theft'of one pair of ankle boots which wasthe property of the company.
After, inquiry the President of the Tribunal said that it wasnot possible to hold on the “ meagre evidence that has been led ”either tl^at the workman concerned was guilty of the charge
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542 VYTHIAIiINQAJt, J. —Associated Battery Manufacturers (Ceylon) Ltd. v.
United Engineering Workers Union
preferred against him or that his dismissal was justified. Hearrived at this finding on the basis that “ the charge against theworkman in this case is a serious one involving moral turpitude.The standard of proof should therefore be as in a criminal case.”Although he did not say so in his order the President obviouslyfollowed the decision in the case of The Ceylon UniversityClerical and Technical Association vs. The University of Ceylon(72 N.L.R. 84) which was cited before him by the Counsel appear-ing for the workman. In this appeal Mr. Satyendra for theappellant employer complains that the President has erred inlaw in requiring the wrong standard of proof in respect of theallegation of misconduct.
•
In the University case the services of a dental nurse wereterminated on the ground that she had made false entries andmis-appropriated Rs. 80 odd belonging to the University. ThePresident had dismissed her application for relief stating thatalthough the evidence might not have been sufficient enough toobtain a conviction in a criminal court yet he had to be satis-fied only on a balance of evidence that the University wasjustified in acting on the basis that there had been dishonestconduct.
In setting aside the order of the President, Wijayatilake, J.said at page 89 “ On a careful consideration of these submissionsI am inclined to agree with learned Counsel for the appellantthat in a case such as the instant one where there is an allegationof falsification of accounts with intent to defraud, the standardof proof should be as in a criminal case and if there is a reasonabledoubt the benefit of such doubt should be given to the personaccused. ” The learned Judge ,was considerably influenced by thefact that “ this rule has been extended to our civil Courts whenthe issue pertains to an allegation of moral turpitude, for instancean allegation of adultery in a matrimonial action or allegation offraud in a civil dispute. This rule has also been adopted in theElection Court. ”
•
In regard to proof of adultery it is true that in the case ofJayasinghe vs. Jayasinghe (55 N.L.R. 410) it was held followingthe decision of the House of Lords in Preston Jones vs. PrestonJones, 1951, 1 All E.R. 124 that the matrimonial offence of adul-tery must be proved beyond reasonable doubt and quite reoentlyH. N. G. Fernando, C.J. said in the case of A. Dharmasena vs. B.
K.Navaratne (76 N.L.R. *419) “Had the trial Judge reminded
himself of the principle that the general standard of
proof beyond reasonable 'doubt applies for proof of adultery.{Jayasinghe vs. Jayasinghe) I do not see how he could havefound the charge prefved against the 2nd defendant on suclftenuous material. ” (421).
ERRATA
(1) Delete tie i line from the bottom at page 517 of
Volume LXXV1I and in its place substitute:
statement of eta rad ice that order turn modeon 13,21 the
(2) In the first line of the headnote at page 522 of VolumeLOT the word1 impose1 should read' imposes'
VYTHIALINQAM, J.—Associated Battery Manufacturers [Ceylon) Ltd. v. 543
United Engineering Workers Union
But this is no longer the law in England since the decision ofthe House of Lords in the case of Blyth vs. Blyth 1966 (All E. R.524) where it was held that the standard of proof required bythe words “ is satisfied ” in section 1 of the Matrimonial CausesAct 1963 is not in all cases proof beyond reasonable doubt butmight vary according to the gravity of the subject matter. Thisquestion was referred to but not decided in the Court of Appealin the case of Alaramalammal vs. Nadarajah (76 N.L.R. 56)because the plaintiff who sued for a declaration that the marriagewas null and void on the grounds of insanity at the time ofmarriage was not seeking to establish a matrimonial offence.
But tha Court of Appeal did say in that case “ We are free topcfint out however that, even if that had been the case it isquestionable having regard to the decision of the House of Lordsin Blyth vs. Blyth whether the local case of Jayasinghe vs. Jaya-singhe upon which the learned Counsel for the applicant heavilyrelied is any longer good law. ” No support therefore can bederived from a consideration of these decisions for theproposition contended for in the instant case.
The principles involved in election petition cases are alsoentirely different and are inapplicable to cases involving thetermination of the employment of a workman. The reason whythe standard of proof beyond reasonable doubt is required inelection cases was set out thus by Baron Martin in the Warring-ton case, 1 O’Mally and Hardcastle, 42 at 44 “ I adhere to whatMr. Justice Willes said at Lichfield that a Judge, to upset an elec-tion, ought to be satisfied beyond all doubt that the election wasvoid, and that the return of a member is a serious matter andnot to be lightly set aside In the Londonderry case 1 O’Mallyand Hard Castle, 274 at 278, Mr. Justice O’brien said “ The chargeof bribery whether by a candidate or his agent, is one whichshould be established by clear and satisfactory evidence. Theconsequences resulting from such a charge being establishedare very serious. In the first place it avoids the election …. Inthe jiext place the 43rd and 45th sections of the ParliamentaryElections Act, 1868 impose further and severe penalties for theoffence, whether committed by the candidate or his agent. ”
In the case P. K. Premasinghe vs. Bandara (69 N.L.R. 155)G. P. A. Silva, J. after reviewing the earlier authorities statedthe reasons thus at page 161 “ It would thus appear that a personcan be visited with the severe penalties of certain civic disabili-ties in respect of the same act namely a corrupt or illegal practiceip one of two ways, one by a prosecution in a court of law and
the other by a finding of an Election Judge If the law
should be tliat the standard of proof for e’stablishing charges inan election petition is lower than that required in a criminal
544 VYTHIALINGAM, J.—Associated Battery Manufacturers (Ceylon) Ltd. v.
United Engineering Workers Union
trial and that such charges can be proved by a balance ofprobability, the resulting position will be that the same graveconsequences of losing certain civic rights can befall the sameperson by being found guilty of the same charges by a prepon-derance of probability in one court and by proof beyondreasonable doubt in another The only course which com-
mends itself to a court of law therefore is to require thesame standard of proof, whether the result is reached via aprosecution or via an election petition. ”
In regard to the standard of proof required there can there-fore be no analogy between Labour Tribunal cases in which thesimple issue is whether the termination of the workman’s servicesby the employer is justified or not and election petition case* •which involve the setting aside of the election of a member ofParliament elected by the free votes of the majority of votersin the electorate and the decision in which involves the severepenalties being imposed on the persons found guilty of electionoffences.
Wijayatilake, J. also referred to a number of cases in which itwas held that an allegation of fraud in a civil dispute has to beproved beyond reasonable doubt. Recently in the case of Yusoojvs. Rajaratnam, 74 N.L.R. 9 G. P. A. Silva, A. C. J. said at page 13“ Both principle and precedent would support the view that whena transfer is effected for valuable consideration the burden ofproving that it was fraudulent rests on the plaintiff in thesecircumstances. It is an accepted rule that such a burden even in acivil proceeding must be discharged to the satisfaction of a court.For that degree of satisfaction to be reached the standard of proofthat is required is the equivalent of proof beyond reasonabledoubt. ” This is because the consequences of fraud are serious asDenning, L. J. pointed out in Lazarus Estates Ltd. vs. Bearly 19561 All E. R. 341 at 345 “ No judgement of a court or order of aminister can be allowed to stand if it had been obtained by fraud.Fraud unravels everything. The court is careful not to find unlessit is specially pleaded and proved. But once it is proved it vitiatesjudgments, contracts and all transactions whatsoever. ”
But even here the more modern and better view is that themore serious the imputation the stricter is the proof which isrequired. Wijayatilake, J. referred to the decision of the PrivyCouncil in Narayanan Chetty Vs. Official Assignee (1941A.I.R.P.C. 93). Referring to this case in Hocking Vs. Bell 1945,71 C.L.R. 430, Dixon, J. said at page 464 “ The solid body ofauthority against introducing the criminal standard of persuasioninto civil causes cannot be shaken by the unconsidered statement*of Lord Atkin in the case from Allahabad Narayanan Chettiar,vs. Official Assignee. ”
V YTI l TALING AM, J.—Associated Battery Manufacturers (Ceylon) Ltd. v. 545
United Engineering WorkerUnion
The view of Dixon, J. was approved and followed in the Houseof Lords by Lord Denning in Blyth vs. Blyth where he said “ Sofar as the standard of proof is concerned, I would follow the wordsof Dixon, J. which I have quoted and which I elaborated in BaterVs. Bater (1950, 2 All E.R. 458) with the approval of the Courtof Appeal in Hornal Vs. Neuberger Products Ltd. 1957, 1 Q.B. 247,In short it comes to this : so far as the grounds of divorce areconcerned, the case like any civil case may be proved by a pre-ponderance of probability, but the degree of probability dependson the subject matter. In proportion as the offence is grave, soought the proof to be clear. ”
• In the case of Hornal Vs. Neuberger (1957) 1 Q.B. 247, Morris,
J. observed at 266 “ there may be degrees of probabilitywithin that standard. The degree depends on the subject matter.A civil court when considering a charge of fraud will naturallyrequire for itself a higher degree of probability than that which
it would require when asking if negligence is established
Though no court and no jury would give less careful attentionto issues lacking gravity than to those marked by it, the veryelements of gravity become a part of the whole range or circums-tances which have to be weighed in the scale when deciding asto the balance of probabilities. ”
Even in a civil case where the issue as to whether acapital offence has been committed arises, the standard of proofis the same. In the case of Dellows Will Trustee 1964, 1 All E.R.771 a husband and the wife who was the general legatee underthe will of her deceased husband, died on the same occasion, butit was deemed that the wife was the survivor under 184 of theLaw of Property Act, 1925. The question arose whether the wifehad feloniously killed her husband so as to disentitle her fromsucceeding to his estate. Dealing with the standard of proofUngoed Thomas, J. said at page 773 “ It is conceded that, in acase of this kind before me in the Chancery Division dealing withthe devolution of property, the standard of proof required is notso severe a standard as that required by the criminal law. ” Afterquoting the passage from Morris, L. J. already quoted by me hewent on to say, “ It seems to me that in civil cases it is not somuch that a different standard of proof is required in differentcircumstances varying accoitling to the gravity of the issue butas Morris L. J. says that the gravity of the issues becomes partof the circumstances which the Court has to take into conside-ration in deciding whether or not the burden of proof has been.dischargecl. ” Having considered the facts the learned Judge said“ I do not think that it is reasonably possible to come to an]•other conclusion on this evidence than that the wife feloniousl]killed the husband. ”
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546 VYTHIALINGAM, J.—Associated Battery Manufacturers (Ceylon) Ltd. v.
United . Engineering Workers Union
Reference was also made to the decision of the Privy Councilin the case of M.K.B. Vs. Advocates Committee 1956, I W.L.R.1442 wrongly referred to as a case from India. It was held inthat case that on a charge of professional misconduct involvingan element of deceit or moral turpitude a high standard of proofis required and that there should not be condemnation on amere balance of probabilities. It is hardly proper to adopt thestandards applied, by a profesional body of men which alwaysinsists on a high standard of conduct and behaviour by itsmembers, for the determination of the question whether anyparticular member of such a body is guilty of professional mis-conduct with a view to taking disciplinary measures against him,to conduct in regard to employer—employee relations.
So that a consideration of the law and a careful examinationof the cases relied on by Wijayatilake, J. shows that “ the stan-dard of proof beyond reasonable doubt required in criminal caseshas not been extended to our civil courts when the issue pertainsto an allegation of moral turpitude. ”
Even in criminal cases while the standard of proof neverchanges and remains the same namely proof beyond reasonabledoubt, nevertheless there may be degrees of proof within thatstandard. Lord Denning points out in Bater Vs. Bater (supra)
“ It is true that by our law there is a higher standard of proofin criminal cases, but this is subject to the qualification thatthere is no absolute standard in either case. In criminal casesthe charge must be proved beyond reasonable doubt, but theremay be degrees of proof within that standard. Many great jud-ges have said that, in proportion as the crime is enormous, soought the proof to be clear. ”
“ What is a real and substantial doubt ? ” he continued. “ Itis only another way of saying a reasonable doubt and a‘ reasonable doubt ’ is simply that degree of doubt which wouldprevent a reasonable and just man from coming to a conclusion.So the phrase reasonable doubt gets one no further. It does notsay that the degree of probability must be as high as ninety-nine per cent or as low as fifty-one percent. The degree requiredmust depend on the mind of the reasonable and just man whois considering the particular subject matter. In some casesfifty-one percent would be enough, but not in others. ”
Every trial Judge in the original criminal courts knows thisand applies it daily, consciously or unconsciously in the casesthat come up for trial which may range from trivial offenceslike criminal insult, criminal intimidation and simple hurt togrievous hurt and even murder and culpable homicide not.amounting to murder. These principles were applied bySamarawickreme, J. in the case of M. C. Hamza Lebbe Vs. Food
VYTH1 ALINGAM, JAssociated Battery Manufacturers {Ceylon) Ltd. v. 547
United Engineering Workers Union
and Price Control Inspector•, Puttalam (73 N. L. R. 475). In acharge under the Price Control Ordinance the question waswhether the article sold was the article referred to in the PriceOrder, and the quantum of evidence required to prove it.
Samarawickreme, J. said “ The evidence might not have beensufficient if the offence related to opium, ganja, or unlawfullymanufactured spirits for the reason that such things are per seeither injurious and harmful or prohibited by law. CondensedMilk on the other hand, is not only not harmful but is an usefularticle of food and its sale is an offence only when it is sold ata price in excess of the controlled price. It is true that in casesof offences in respect of opium, ganja or unlawfully manufac-tured spirits as well as offences in respect of condensed milkthe standard of proof is that of proof beyond reasonable doubtbut in the case of the latter proof need not be as strict as in thecase of the former. ”
The whole object of an inquiry before a Labour Tribunal andits scope and nature are entirely different from a trial on acriminal charge in an ordinary court of law and standards ofproof applied in the latter are wholly inappropriate to theformer. The Industrial Disputes Act (Cap. 131) as amended byAct No. 62 of 1957 provided inter alia a simple way of remedyinga grievance which an individual workman might have againsthis employer. Section 31. B (1) sets out that “ A workman or atrade Union on behalf of a workman who is a member of thatUnion may make an application in writing to a labour Tribunalfor relief or redress in respect of any of the followingmatters : —
“ (a) the termination of his services by his- employer”
When such an application is made “ It shall be the duty of thetribunal to make pll such inquiries into that application andhear all such evidence as the tribunal may consider necessary,and thereafter make such order as may appear to the tribunalto be just and equitable. ” (Section 31. (c) (1)). In conductingthe inquiry, subject to such regulations as may be made by theMinister under section 39 (i) (if), the tribunal may lay downthe procedure to be observed by it. It is also not bound by anyof the provisions of the Evidence Ordinance (Section 36 (4)The discretion vested in .the tribunal is very wide.
In the instant case the Union tq which the workman belongsmade the application for the reinstatement of the workman withback Tyages on the ground that t^e termination of his employ-ment was without any justifiable cause of reason. In section31 B (J) (a) the word “ termination ” is not qualified by thewords “ wrongful ” or “ unjustified flut as Lord Devlin pointed
548 VYTHIAXiHSTGAM, J.—Associated Battery Manufacturers (Ceylon) Ltd. v.
United Engineering Workers Union
out in Devanayagam’s case (69 N.L.R. 289 at 303) in his dis-senting judgment “ It is commonplace that with respect toindustrial relations the common law of master and servant hasfallen into disuse, ” and it is now universally recognised that“ termination of employment should not take place unless thereis a valid reason for such termination connected with the capacityor conduct of the workman or based on the operational require-ments of the undertaking establishment or service. ” (Section 2(1) of the Termination of Employment Recommendation No. 119(1963) adopted at the International Labour Conference 1963).
The employers’ position in this case was that the terminationof the services of the workman was justified for the reason thatat a domestic inquiry he had been found guilty of thfeft ofproperty belonging to the Company. In other words, the reasonfor the termination was connected with the conduct of theworkman. The issue before the Tribunal in this case was whetherhaving regard to all the facts and circumstances of the case thetermination of the employment of the workman was justifiedor not, and not simply whether the workman was guilty of theftof the boots or not.
It was undoubtedly the duty of the Tribunal to ascertain the-facts. As Weeramantry, J. said in Ceylon Transport Board Vs.Gunasinghe (72 N. L. R. 76 at 83) “ Proper findings of fact are anecessary basis for the exercise by Labour Tribunals of thatwide jurisdiction given to them by statute of making such ordersas they consider to be just and equitable. Where there is no suchproper finding of fact the order that ensues would not be onewhich is just and equitable upon the evidence placed beforethe Tribunal, for justice and equity cannot be administered ina particular case apart from its own particular facts.”
In the instant case the Tribunal had to find as a fact whether
the workman did commit theft of the boots or not, but this was
only incidental to the decision as to whether the termination of
the employment was justified or not and not for the purpose
of punishing him for a criminal offence. It has been emphasised
in a number of cases that the proceedings before a Labour
Tribunal are not criminal in nature and therefore the standards
of proof required to establish a criminal charge are wholly
inappropriate where the Tribunal has merely to ascertain the
facts and make an order which in all the circumstances of the
case is just and equitable. In doing so*the Tribunal is not bound
by the rules of evidence contained in the Evidence Ordinance
and may base its decisions on evidence which would be shut out
from the ordinary courts of law.
• •
In the case of the Ceylon Transport Board Vs. Ceylon TransportWorkers’ Union (71 N. L. R. 158) the workman’s services wereterminated on the ground that he had collaborated with another
VYTHIAIjINGAil, J.—Associated Battery Manufacturers (Ceylon) Ltd. v. 549
United Engineering Workers Union
or others in the dishonest removal of a timing chain from thestores. In a statement R1 made by the workman to the security-officer he had admitted complicity in the theft. The Presidentsaid that his statement would probably not have been admissiblein a criminal case and that although the Tribunal was not boundby the rules of evidence such a statement must be received withcaution. He accordingly held that the charge was not provedwith such degree of probability as would justify the conclusionthat the workman was guilty of the charges preferred and•ordered that the workman should be reinstated.
In setting aside the order, Tennekoon, J., as he then was, said,“ Section 36 (4) must not be regarded as a provision which•enables a Tribunal to apply exclusionary rules more rigorousthan those contained in the Evidence Ordinance. A proceedingbefore a' Labour Tribunal is not a criminal case and even if thePresident was inclined to guide himself by the rules of relevancycontained in the Evidence Ordinance section 24 thereof (whichis obviously the only section he could have had in view) could-not have been availed of, since that applies only to criminalcases. ” There was no reference in the case to any requirementof a standard of proof beyond reasonable doubt although thecharge was one of theft.
In the Ceylon Transport Board vs. W. A. D. Gunasinghe(72 N. L. R. 76) Weeramantry, J. in a similar case said, “ It wasnot open to the President to disregard that admission, for anadmission by a party, no less than evidence offered against himby his adversary is evidence before the Tribunal, which theTribunal is under a duty to consider. It was wrong, therefore,for the President .to take the view that there was no evidencebefore him in support of the charges, nor was it correct for himto rest his order on the technicality that there had been noadmission cf the charges before him. Such an attitude, whichmay perhaps have been appropriate in a criminal trial, was, as•Tennekoon, J. has observed, wholly inappropriate to an inquirybefore a Tribunal. ” (Page 80).
Mackwoods Ltd. vs. Tea, Rubber, Coconut and General ProduceWorkers’ Union (74 N.L.R. 183) was a case in which the relevantevidence was a confession made to a Police officer. In making hisorder the President had either overlooked the statement or elsethought that statement to be inadmissible as being a confessionmade to a Police officer. In setting aside the order, H. N. G. Fern-ando, C.J. said “ such a confession is not inadmissible in a civilproceeding. ” The charge in that casfe was one of theft or aidingand abetting the theft. In all the three cases it would have beenimpossible to obtain a conviction in a Court of law based on theseadmissions alone and yet the termination of the employment was
550 VYTIJ LAXiESrGAM, JAssociated Battery Manufacturers (Ceylon) Ltd. v.
United Engineering Workers Union
held to be justified. In all three cases it was emphasised thatproceedings before a Labour Tribunal was not a criminal trialand there was no reference to the fact that the charges shouldhave been proved beyond reasonable doubt although in each casethe offence was one involving moral turpitude.
Akbar vs. Air Ceylon Ltd. (76 N.L.R. 398) was a case in whichthe workman’s services were terminated on the ground that hehad solicited a bribe from a passenger. The President of theTribunal held that the charge had been proved beyond reasonabledoubt and that the termination of the employment was justified.In appeal Rajaratnam, J. said that in his view it had not beenso proved. In regard to the standard of proof after consideringthe judgment in the University case with which he did notexpressly disagree and other cases, Rajaratnam, J. said atpage 406 and 407 “ I have considered the question of standard ofproof necessary to prove an allegation against an employer(employee ?) and with the assistance of all the decisions andobservations made by very learned Judges I am of the view thatthere is a standard of fairness that has to be applied—-whetherit is a case of misconduct involving moral turpitude or not.Because it is only if a yardstick of fairness is used that theTribunal can ultimately arrive at a conclusion that leads to a justand equitable order. ”
It would appear therefore that although he did not expresslydisagree with the decision in the University case yet Rajaratnam,J. was of the view that the same standard of proof namely, “ astandard of fairness ” has to be applied whether it is a case ofmisconduct involving moral turpitude or not. I take it that whatis meant by “ the standard of fairness ” or “ the yardstick offairness ” is nothing more than the degree of proof required inthe “ mind of the reasonable and just man who is considering theparticular subject matter. ”
Lest a new terror be added to the determination of standardsof proof it is necessary to add that there is no “ fairness ” abouta fact. As Tennekoon, J. as he then was pointed out in CeylonTransport Board vs. Ceylon Transport Workers’ Union (71 N.L.R.158 at 163 and 164.) “ There is no equity about a fact. The tribunalmust decide all questions of fact solely on the facts of the parti-cular case, solely on the evidence before him and apart from anyextraneous considerations. Ih short in his approach to the evi-dence he must act judicially. It is only after he has so ascertainedthe facts that he enters upon the next stage of his functionswhich is to make an order that is fair and equitable, havingregard to the facts so fownd. To say* of one party’s case that itwould not be equitable to reach a conclusion against the other
VYTHIAX.ESTGAM, JAssociated Battery Manufacturers (Ceylon) Ltd- v. 551
United Engineering Workers Union
on the evidence produced by the former is to apply an undis-closed and unreasonable standard of proof to that party’s caseand indeed to act arbitrarily and not judicially. ”
In the case of Vijaya Textiles Ltd. vs. The General SecretaryNational Employees’ Union 73 N.L. R. 405 the workman’s serviceswere terminated on the ground of his misconduct in assaulting asuperior officer. Wijayatilake J. who also decided that case heldthat a charge tantamount to a criminal offence not involvingmoral turpitude need not be proved beyond reasonable doubt. Inthe field of employer-employee relations, maintenance of discip-line and industrial peace, contumacious abuse and assault of asuperior officer can be more serious than theft of a paltry sum.
As Sirimane, J. pointed out at page 384 in the case Heath & Co.(Ceylon) Ltd. vs. Kariyawasam (71 N.L.R. 382) “ Though thepoint of view of a workman in a labour dispute must always begiven the highest consideration and his conduct judged withtolerance and understanding, yet, the use of obscene languagewhen addressing the employer’s representative, a contemptuousdisregard for any form of discipline, coupled with threats ofviolence should not be condoned in the name of industrial peace.Such a course can only lead to industrial chaos A dismissal forthis reason can also have the serious consequence of rendering itimpossible for a workman found guilty of such conduct to secureother employment. Yet if the views set out in the Universitycase and in the Vijaya Textiles case are to prevail the one hasto be proved beyond reasonable doubt while in the case of theother a mere balance of probabilities is enough. There is nowarrant for such a dual standard either in the Act or on principleand precedent.
In the case of Hemas (Estates) Ltd. et al vs. The CeylonWorkers’ Congress (76 N.L.R. 59) the question was whether theworkman a labourer on an estate had handed over the line room•allotted to him to another labourer and had gone to reside else-where. Sirimane, J. said “ I agree with the submission of thelebrned Counsel for the employees appellants that in a case likethis, there is no burden placed on the employer to prove hisallegations ‘ beyond all reasonable doubt ’ as in a criminal case ”.Although it was not a case of an offence involving moral turpi-tude nevertheless there waj no distinction drawn between thetypes of cases.
•
Wijayatilake J. was of the view that Rule 54 of the PublicService Commission Rules which provides that even when aPublic Servant is acquitted in any criminal proceeding he cannotby reason of such acquittal claim to be reinstated or re-employed“ a serious affront on the Courts’ ’. If I may say so with great
552 VYTJ LIALINGAM, J.-—Associated Battery Manufacturers (Ceylon) Ltd. v.
United Engineering Workers Union
respect to the learned Judge this is to overlook completely theobject, scope and consequences of a trial on a criminal charge in acourt of law and an inquiry before a Labour Tribunal chargedwith a duty of ascertaining all the facts and making orders whichaxe just and equitable.
Indeed the Industrial Disputes Act provides in Section 31 (B)<3) that “ where an application under subsection (1) relates—
•(b) To any matter the facts affecting which are in the opinionof the tribunal, facts affecting any proceedings under any otherlaw, the tribunal shall make order suspending its proceedingsupon that application until the conclusion of the said inquiry orthe said proceedings under any other law and upon such conclu-sion the tribunal shall resume the proceedings upon that appli-cation and shall in making an order upon that application haveregard to the award or decision in the said inquiry or the proceed-ings under any other law. ”
For this purpose an investigation under Chapter XII of theCriminal Procedure Code is not a proceeding contemplated in theSection (Vide The Ceylon Insurance Co. Ltd. vs. E. V. Perera<74 N.L.R. 553). In that case H. N. G. Fernando, C.J. withSamerawickrema J. agreeing said at page 560 “ For these reasonsI reach the conclusion that Section 31B (3) of the IndustrialDisputes Act, contemplates that proceedings before a LabourTribunal must be suspended only if there are pending some otherproceedings in which an award or decision having legal effectwill or can be made, and that an investigation under Chapter XIIof the Criminal Procedure Code is not a proceeding contemplatedin the section. ”
Such an award or decision having legal effect is not madebinding on the tribunal but the tribunal must have regard to theaward or decision in making its order. Quite naturally a convic-tion in a court of law for the identical offence for which theemployment has been terminated would be accepted as proof of,the. commission of the offence by a tribunal. But an acquittalwould not have the same effect. For an acquittal could have been^based on the fact that the charge had not been proved with thathigh degree of proof which is required to establish a charge ina criminal case ; or it may have been based on the exclusion ofevidence which would be admissible before a Tribunal butinadmissible in a criminal court ; or on some technical ground.
The stigma attaching to a conviction and punishment in acriminal court is not the sanje as that which attaches to g findingby a Tribunal that the termination of the employment wasjustified on the ground of the involvement of the workman in acriminal offence. The * object of the Criminal law and its
VYTHIALENTGAM, J.—Associated Battery Manufacturers (Ceylon) Ltd. v. 553
United Engineering Workers Union
enforcement through Criminal proceedings is completely differentfrom that of proceedings before a Labour Tribunal. A criminalproceeding is mainly intended to punish persons who have brokenthe law and thus to show the indignation of the community. It isthe expression of the community’s hatred and contempt for theconvict. Such a stigma does not attach to a finding by a LabourTribunal that the conduct of the workman was such as to justifythe termination of his employment except that the imputationof dishonesty may correspondingly reduce his ability to getanother job.
The adoption of a dual standard of proof, one for offencesinvolving moral turpitude and another and lower one for other• .acts whether they be criminal in nature or not, would lead toindustrial chaos. The more serious the offence the more difficultwould it be to terminate a workman’s services unless theemployer could find proof sufficient to establish the charge beyondreasonable doubt. Thus an employer has to continue in hisemployment a workman whom he reasonably suspects of embezz-ling his money and continue to suffer losses merely because hecannot prove the charge beyond reasonable doubt.
The whole object of labour adjudication is that of balancing theseveral interests involved, that of the worker in job security, sinceloss of his job may mean loss of his and his family’s livelihood ;that of the employer in retaining authority over matters affectingthe efficient operations of the undertaking ; that of the communityin maintaining peaceful labour relations and avoiding unneces-sary dislocations due either to unemployment or unproductiveeconomic units. Each is equally important. None of these objec-tives can be achieved by the adoption of the standard of proofrequired in criminal cases in the determination of the facts whichhave to be established before a Labour Tribunal before it canexercise its jurisdiction to make an order which in all the circum-stances of the case is just and equitable. This difficulty wasRealised in the University of Ceylon case for the learned Judgewhile ordering the reinstatement of the nurse nevertheless gavethe University the option to terminate her services and to payhack wages and compensation in lieu of reinstatement. I
I am therefore unable to agree, with great respect, that where“the reason for the termination of the employment is an allega-tion that the employee was guilty of a criminal act involvingmoral turpitude, that allegation shoujd be established by proofbeyond reasonable doubt as in a criminal case in order toestablish .the validity of the reason Jfor the termination of the•employment. It has to be decided on a balance of probability,the very qlements of gravity of the charge becoming a part ofthe whole range of circumstances which are weighed in the
554
De Silva v. De Silva
balance, as in every otlier civil* proceeding. In the instant casethe President has applied the wrong standard of proof and thisbeing an error of law his decision has to be set aside. I accordinglyset aside the order made by the President and remit the case foran inquiry de novo before another President. The costs of appealwill abide the results of the new inquiry.
Malcolm Perera, J.
I agree.
Order set aside.