029-SLLR-SLLR-1991-V-1-GENERAL-MANAGER-CEYLON-ELECTRICITY-BOARD-AND-ANOTHER-v.-GUNAPALA.pdf
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GENERAL MANAGER, CEYLON ELECTRICITY BOARDAND ANOTHERV.
GUNAPALA
COURT OF APPEAL,
GUNASEKERA J.,
C.A. 357/88,
L.T. GALLE 4/G/16376/85,
10 AND 11, DECEMBER 1990,
Industrial Dispute – Consuming liguor while on duty – Contravention of circular -Termination of Employment- Appeal captioned in the name of juristic persons – Failureto specify identified questions of law in petition of appeal
Held:
Though the General Manager of the Ceylon Electricity Board and Elecrical Engineernamed in the caption are non juristic persons the petition of appeal has in fact beensigned by the Ceylon Electricity Board which is set up by Ceylon Electricity Act No.17 of 1969 and invested with the right to sue and be sued in the corporate name.Therefore the error in the caption does not affect the validity of the petition.
It is sufficient if the question of law is apparent from the body,of the petition. Thefailure to set out specifically the question of law to be determined does not affectthe validity of the petition of appeal.
CA
General Manager, Ceylon Electricity Board and Another v. Gunapala
(Gunasekera J.)
305
The circular issued by the General Manager of the Ceylon Electricity Board prohibitedconsumption of liquor by its employees. The appellant was proved to have consumedliquor in contravention of the circular while on duty. When this was found by thePresident he erred in law in ordering reinstatement instead of upholding the dismissal.The fact that other employees who were found to have consumed liquor were notsimilarly dismissed from service is not relevant.
Cases referred to:
Lanka Wall Tiles Ltd. V. Cyril (1986) 2 CALR 344
Karunaratne v. Uva Regional Transport Board (1986) 1 CALR 93APPEAL from order of the President of the Labour Tribunal
S.M. Fernando for appellantHaritha Senanayake for respondent.
Cur. adv. vult.
18 January, 1991GUNASEKERA J.
Learned counsel for the Respondent takes up the two preliminaryobjections to the hearing of this appeal. Firstly he submits that thepetition of appeal has been filed by the General Manager CeylonElectricity Board and the Electrical Engineer Ceylon Electricity Boardwho are non juristic persons and there is no valid petition of appealfiled in this case.
Secondly learned counsel submits that there is no question of lawset out in the petition of appeal and since an appeal to this courtfrom an order of a Labour Tribunal lies only on a question of lawthat the petition should be rejected. Mr. S. Fernando who appearsfor the Respondent Appellant submits that although the caption tothe petition of appeal reproduces the caption given in the order ofthe learned President it would appear from the body of the petitionof appeal that the petition of appeal has in fact been filed by theCeylon Electricity Board. In support of this submission the learnedcounsel for the Appellants draws the attention of court to the petitionwhich states "the petition of appeal of the Respondent Appellant(C.E.B) above named appealing by its Attorney at Law. Mrs. L.R.I.de Silva states as follows:-
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Para 1 of the petition of appeal states that the Respondent Appellant,is a Statutory Board established under the Ceylon Electricity BoardAct No. 17 of 1969.This averment in the petition'of appeal makes itabundantly clear that although the caption in the petition of appealrefers to two non juristic persons that the petition of appeal in facthas been filed by the Ceyion Electricity Board which is a juristicperson which has the right to sue and be sued. Hence the firstpreliminary objection raised by the learned counsel for theRespondent in my view fails.
In regard to the second objection it is my view that there is no legalrequirement to state the question of law in the petition as long ason a reading of the petition it is clear that there are points of lawto be determined. This view is confirmed by the decision in the caseof Lanka Wall Tiles Ltd vs Cyril (1) where it was held that "thequestion of law to be determined does not have to be specificallyset out in the petition of appeal". Paragraph 7 of the petition states"that the learned President has expressly accepted the fact that theApplicant Respondent had taken liquor whilst on duty on 18.3.83 buthad given his order to reinstate the Applicant Respondent from28.10.88 since the Board had failed to take action against the otheremployees who had consumed liquor".
Learned counsel for the Appellant submitted that the issue beforethe learned President whether the Applicant Respondent hadconsumed liquor whilst on duty and once that issue was determinedin favour of the Respondent Appellant and once the learnedPresident came to a finding on the evidence that the workmanconcerned had consumed liquor whilst on duty that he had nojurisdiction to order reinstatement. I am inclined to agree with thissubmission of learned counsel that the learned President has failedto judicially exercise the discretion vested in his determining thequestion as to whether relief should be granted to the ApplicantRespondent in view of his express finding that the Applicant hadconsumed liquor whilst on duty. Therefore in my view the secondpreliminary objection of learned counsel for the Respondent too failsand for those reasons I reject the preliminary objections raised bylearned counsel for the Applicant Respondent and permit the counselfor the Appellant to proceed with his arguments in regard to thematters raised in the petition of appeal.
CA
General Manager, Ceylon Electricity Board and Another v. Gunapala
(Gunasekera J.)
307
The Applicant Respondent who had been employed under theAppellant Board as grade 4 labourer at the time material to thisapplication complained to the Labour Tribunal that his services wereterminated by the employer Board on 6.9.1984 and prayed forreinstatement and for compensation.
The Respondent Appellant Board sought to justify the termination ofthe services of the Applicant Respondent on the ground that he wasfound to have consumed liquor whilst on duty on 18.3.1983.
At the inquiry S. Colambage a consumer to whose residence anelectricity supply was to be connected on 18.3.1983 and S.D.Tilakaratne an administrative officer of the Respondent Board gaveevidence on behalf of the Appellant Board whilst the ApplicantRespondent did not give evidence nor did he call witnesses on hisbehalf. The learned President after consideration of the evidenceexpressly accepted the evidence of the Respondent Appellant'switnesses and came to a finding that the Applicant Respondent hadconsumed liquor whilst on duty but nevertheless ordered thereinstatement of the Applicant Respondent without back wagesby his order dated 29.9.1983. It is against this order that theRespondent Appellant has filed the present appeal.
Learned counsel for the Respondent Appellant Board submitted thatthe issues in this case before the Labour Tribunal were firstly whetherthe Applicant had consumed liquor whilst being on duty on 18.3.83and secondly if so was the termination justified. Learned counsel forthe Appellant contended that the learned President was duty boundin law to answer both issues. His contention was that the learnedPresident having answered the first issue and come to a expressfinding that the Applicant Respondent was found to have consumedliquor whilst on duty, was in law obliged to hold that the terminationof the services were justified and erred in law in holding otherwiseand ordering reinstatment.
In this connection it was contended by learned counsel for theRespondent Appellant that the learned President had totally failed toconsider the evidence of witness Tilakaratne who produced R6 thecircular issued by the General Manager of the Appellant Board dated23.6.82 relating to drunkeness or employees who were smelling ofliquor. Learned counsel submitted that on authority of KarunaratneVs. Uva Regional Transport Board (2) that it was obligatory of the
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President to have given effect to the rules laid down by circularssuch as R6 providing for a code of conduct for employees in thePublic and Corporation sector and also providing specific punishmentsfor violation of such provisions. The Learned President having foundthat the Applicant Respondent was found to have consumed liquorwhilst on duty in my view has completely ignored the principles laiddown in the above decision and has in my view failed to give effectto state policy governing employment in the government and statesector and consequently erred in law in ordering reinstatement. Thelearned President appears to have ordered the reinstatement of theApplicant Respondent on the basis that the Board had not placedany evidence to the effect that the other employees who were foundto have consumed liquor were not similary dismissed from service.In my view this was not relevant to the issue that was before thelearned President and he appears to have been influenced byextraneous matters in holding that the services of the ApplicantRespondent have been terminated wrongfully.
Thus I set aside the order of the learned President ordering thereinstatement of the Applicant Respondent and dismiss his applicationmade to the Labour Tribunal. There will be no costs.
Appeal allowed.