NANDASENA v. UVA REGIONAL TRANSPORT BOARD

035-SLLR-SLLR-1993-1-NANDASENA-v.-UVA-REGIONAL-TRANSPORT-BOARD.pdf


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Sri Lanka Law Reports
[1993] ISriLR.
NANOASENA
v.UVA REGIONAL TRANSPORT BOARD
SUPREME COURT.
FERNANDO J.
GOONEWARDENA J. ANDWADUGODAPITIYA J.
S.C. APPEAL NO. 59/92.
C.A. NO. 385/86.
LT. NO. R/22975.
DECEMBER 07, 1992.
Industrial Dispute – Transfer of employer – Constructive termination – Vacationof post.
The applicant-appellant was employed by the respondent Board as a busconductor attached to the Embilipitiya Depot. On 3.4.1984 he was interdictedwithout pay on charges falling into two categories :
Assault and conspiracy to assault the Depot Manager on 26.3.1984.
Failing to reveal to the respondent the correct facts relating to the incidentof 26.3.84.
After a domestic inquiry he was found not guilty of the first charge but guiltyof the second charge of misleading the Board by concealing the truth and/ormaking a false statement relating to the incident of assault which took place on26.3.1984. Consequently he was held to be not a fit and proper person to holdemployment under the Board. On 26.12.84 the Personnel Manager informedthe appellant of the result of the domestic inquiry and indicated that thepunishments meted out were disentitlement to salary during the period ofinterdiction and a disciplinary transfer to a new station of which he will be informedsubsequently. On 31.12.84 he was informed that his new station was the RatnapuraDepot with effect from 1.1.1985.
sc
Nandasena v. Uva Regional Transport Board
319
On 2.1.1985 the appellant wrote to the Personnel Manager asserting his innocenceand that he was not at Embilipitiya on the day of the incident and stating thatthe unlawful deprivation of wages and transfer constituted a constructivetermination of his services and he would be appealing against the order of26.12.84. He asked for stay of the transfer pending the appeal. He called fora reply on or before 15.1.1985. On 11.1.85 the Personnel Manager replied thathe had no power to stay the transfer citing the Board’s rule 14 which providedthat upon an appeal being made a punishment transfer would not be stayed.The appellant wrote again to the Personnel Manager on 21.1.1985 asking fora reconsideration and that pending the result of the appeal he be transferredto the Godawaia Depot as this was within the limit of his free travel passwhereas Ratnapura was not and would involve him in additional expenses. ThePersonnel Manager did not reply.
On 8.2.1985 the Depot Manager Ratnapura issued a vacation of post notice givingseven days to explain his absence. On 10.2.85 the appellant replied he wasawaiting the Personnel Manager's final decision. On 22.2.85 the Depot ManagerRatnapura informed the appellant that he was deemed to have vacated his poston 5.1.85 by failing to report for work on or after that date.
On 28.2.85 the appellant wrote to the Personnel Manager seeking a reinstatementand a posting to either Kahawatta or Godakawela pending the result of his appeal.On 1.4.85 the Personnel Manager replied rejecting the appeal and reiterating theposition set out in the letter of 11.1.1985.
On 28.2.1985 the appellant made an application to the Labour Tribunal in respectof the termination of his services. The Board took up the position that theappellant had been transferred to Ratnapura as a punishment upon being foundguilty of serious misconduct. The transfer order continued to be operative despitethe appellant's appeal and upon his failing to report for work at the RatnapuraDepot he was properly deemed to have vacated his post.
The notes of inquiry of the domestic hearing were not produced before the LabourTribunal and the application by the appellant to have them so produced wasobjected to by the respondent and disallowed by the Tribunal.
Held : (Fernando J. dissenting)
If the disciplinary transfer was an injustice and an unfair imposition ofpunishment, it would still be so whether the new station be Ratnapura orGodakawela suggested by the appellant. The imposition of the transfer and theforfeiture of salary by way of punishment, after an adverse finding at a domesticinquiry did not have the effect of a constructive termination of the contract ofemployment there being no other complaint of wrong doing by the respondentother than with regard to the infliction of this punishment.
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If the appellant had made an application to the Labour Tribunal claiming thatthe punishment meted out to him after the domestic inquiry was in reality aconstructive termination of services then he could have properly urged the LabourTribunal to order the production of the notes of inquiry held by the domestictribunal.
There is no material to say that the disciplinary order of transfer wasunjustified or constituted arbitrary punishment.
Even assuming the transfer was invalid the employee must obey it. Hecould appeal against the order but he cannot refuse to carry it out. He mustcomply and complain.
The failure to report at the Ratnapura Depot was a deliberate and calculatedact of disobedience and a virtual repudiation of his contract. The appellant ofhis own volition secured his own discharge from employment under the Boardby vacating his post.
Per Gunawardene J.
" This Court is the last Court and the tribunal of ultimate jurisdiction in the judicialhierarchy. Its orders, rulings and judgments are immune from legal challenge andanyone dissatisfied therewith has no recourse to further legal remedies. Aconsciousness of this I think, must constantly be in the Court’s mind, remindingit of the need for the exercise of self-discipline and self-restraint in its attemptto ensure that the influence of its actions is never other than for the public good.*
Cases referred to :
Ceylon Estate Employers Federation v. Manakulasooriya S.C. 254/73
S.C. Minutes of 13.9.73.
Re Duran (No. 2) Judgment No. 392 of the Administrative Tribunal of theInternational Labour Organisation.
Re Reynolds Judgment No. 38 of the Administrative Tribunal of theInternational Labour Organisation.
Ceylon Estate Staffs' Union v. Superintendent, Meddecombra Estate,Watagoda (1970) 73 N.L.R. 278, 287, 288.
Janatha Estates Development Board v. Kurukuladitta (1990) 2 SriLR. 169.
Hayleys Ltd. v. De Silva (1963) 64 N.LR. 130, 139.
Lewis Brown & Co. Ltd. v. Periyapperuma (1971) 76 N.LR. 115.
Colombo Apothecaries Co. Ltd. v. Ceylon Press Workers Union (1972)75 N.LR. 182.
Brooke Bond (Ceylon) Ltd. v. Tea, Rubber etc. Workers Union (1976) 77N.LR. 6.
Workman of Phillips (India) Ltd. v. Phillips (India) Limited (1960) 2 LabourLaw Journal pp. 135-6.
Gulam Haqquani Khan v„ State of Uttar Pradesh (1958) 2 Labour LawJournal p. 673, 676.
sc
Nandasena v. Uva Regional Transport Board (Fernando, J.)
321
APPEAL from judgment of the Court of Appeal.Percy Wickremasekera for applicant-appellant.Ranjith de Silva for respondent Board.
Cur. adv. vult.
January 29, 1993.
FERNANDO, J.
The Applicant-Appellant was employed by the Respondent as a busconductor from 1.8.75. While serving at the Embilipitiya Depot, hewas interdicted without pay on 3.4.84 on several charges, falling intotwo categories : assault and conspiracy to assault the Depot Manageron 26.3.84, and failing " to reveal to the (Respondent) the correctfacts relating to the incident of 26.3.84 * (" the second charge ").After the disciplinary inquiry, by letter dated 26.12.84, the Appellantwas informed that he had been found guilty of the latter charge, forwhich two punishments would be imposed, namely the withholdingof his salary for the period of interdiction and a transfer on disciplinarygrounds ; by letter dated 31.12.84 he was informed that he wastransferred to the Ratnapura Depot with effect from 1.1.85. On 2.1.85the Appellant complained to the Assistant Commissioner of Labourthat the denial of half-pay during interdiction, and the withholding ofhis salary by way of punishment, were wrongful. On the same dayhe wrote to the Personnel Manager, asserting that he had not beenat Embilipitiya at the time of the incident and that therefore he wasinnocent of the second charge ; that he intended to file an appealagainst the order of 26.12.84 ; that the denial of half-pay duringinterdiction and the punishments imposed were unlawful ; that atransfer pending appeal, after having being deprived of his salary fornine months, would be a grave injustice, for which there could beno redress even if his appeal succeeded ; and requesting a stayof the transfer pending appeal. The caption of that letter suggeststhat he was treating the order as a constructive termination. ThePersonnel Manager replied that he had no power to stay the transfer,citing the Board's disciplinary rule 14, which provided that upon anappeal being filed there would be an automatic stay of punishmentsother than, inter alia, punishment transfers. It is common ground thatthe Appellant filed an appeal on or about 22.1.85. Thereafter he againsought a stay of the transfer, suggesting that pending appeal he could
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be transferred to Godakawela which would fall within the limit of hisfree travel pass (unlike Ratnapura), thus eliminating additionalexpense to him. Pending the outcome of this correspondence he didnot report for duty at Ratnapura. On 8.2.85 the Depot Manager,Ratnapura, issued a vacation of post notice giving him seven daystime to explain his absence ; the Appellant replied on 10.2.85 sayingthat he was awaiting the Personnel Manager's final decision. Beforehe received any further reply from the Personnel Manager, on22.2.85 the Depot Manager, Ratnapura, informed him that he wasdeemed to have vacated his post on .5.1.85 by failing to report forwork on and after that date. This was before the Appellant hadreceived any communication regarding his appeal. On 28.2.85 theAppellant appealed against the vacation of post order, seekingreinstatement, again urging that, pending the determination of his firstappeal, he be transferred to a station falling within the limit of hisfree travel pass. This appeal was refused on 1.4.85, withoutconsidering the correctness of the finding or the punishment in respectof the second charge.
On 28.2.85 the Appellant made an application to the LabourTribunal in respect of the termination of his services. In the answerthe Respondent sought to justify the termination on the basis thatthe Appellant had been transferred to Ratnapura as a punishment,upon being found guilty of serious misconduct; that the transfer ordercontinued to be operative notwithstanding appeal; and that upon hisfailure to report for work at Ratnapura he had properly been deemedto have vacated his post.
At the inquiry the Appellant gave evidence to the effect that hehad been away in Colombo, at the time of the incident of 26.3.84;not only was there no contradiction of this evidence but it was noteven suggested in cross-examination that this was untrue, or thathe had concealed matters within his knowledge. The only evidenceled on behalf of the Respondent was in regard to his admitted failureto report at the Ratnapura Depot on and after 5.1.85.
The President of the Labour Tribunal did not consider the secondcharge levelled against the Appellant, or the validity and proportionalityof the punishments imposed. She took the view that the admittedfailure of the Appellant to report for work had not been explainedin terms of the rules, by proof that the Appellant had been absent
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Nandasena v. Uva Regional Transport Board (Fernando, J.)
323
for reasons of illness or other unavoidable cause or that he had beenon leave ; and that the transfer had not been stayed by reason ofthe pending appeal. The application was dismissed. For the samereasons, the Court of Appeal dismissed his appeal stressing that" the facts leading to the disciplinary transfer was not the issueto be determined by the Tribunal."
Learned Counsel for the Appellant strenuously contests thisposition. The Appellant not only disputed the findings of guilt on thesecond charge, but considered the punishments imposed as beingso wrongful, unreasonable and disproportionate as to amount to aconstructive termination of his services ; the refusal to stay thepunishment transfer pending the appeal was also unreasonable andunjust, particularly as the prejudice caused could not be remediedeven if his appeal succeeded. Had he complied with the transfer orderpending appeal, if the order in appeal proved to be adverse, he wouldthen have been unable to canvass that order on the basis of aconstructive termination, because he would then be deemed to haveaccepted and acquiesced therein.
The issue before the Labour Tribunal was whether there had beena termination of the Appellant's services by the Respondent, and ifso whether that termination was justified. From the fact that anemployer deems his employee to have vacated his post it does notconclusively follow that there has been a termination by theemployee : that would depend on the circumstances. Accordingly, theissue before the Tribunal also involved the question whether theAppellant's failure to report for work amounted to a repudiation ofthe contract of employment ; or whether it was a transgression onlyjustifying disciplinary action short of dismissal ; or whether it was abona fide challenge to a disputed order; or whether it was a justifiableor permissible response to a wrongful or unreasonable punishment.That question therefore could not have been answered withoutconsidering the basic issue, whether the Appellant was guilty of thesecond charge, and if so the consequential question whether thepunishments imposed were proper, reasonable and proportionate.
In Ceylon Estate Employers' Federation v. Manakulasooriya <1>, itwas held that although under the contract of employment theFederation was entitled to transfer the workman, nevertheless in thecircumstances the transfer was not justified ; that although the
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workman should have, in the interests of the institution, proceededto his new station, reported for work, and thereafter made his protest,nevertheless he had not vacated his post by his failure to proceedon transfer; and that the workman was entitled to reinstatement, withsome back wages, the Federation being given the option of payingcompensation in lieu of reinstatement. This is a general principle whichis internationally recognised. Thus C.F. Amerasinghe (Law of theInternational Civil Service, 1988, pp. 903-904). says :
" a refusal to comply with a transfer order renders [an employee]subject to disciplinary measures entailing the institution of
disciplinary proceedings The refusal of a transfer cannot
normally be treated per se as a case of abandonment of postentailing automatic termination. It is also not a basis for summarydismissal for serious misconduct."
He cites Re Duran (No. 2) ®, Judgment No. 392, and ReReynolds (3), Judgment No. 38, both judgments of the AdministrativeTribunal of the International Labour Organisation. In Re Duran it wasobserved : 11
11 If one party to a contract fails or refuses to perform his dutiesunder the contract in circumstances which show that he does notintend ever again to resume them, i.e. show in effect that he isabandoning his post, the Other party is entitled to treat the contractas at an end ; he is not obliged to wait indefinitely in case thefirst party might change his mind. This is what abandonmentmeans. It contains both a physical and a mental element. Atemporary absence from a place does not mean that the placeis abandoned ; there must be shown also an intention not to return.So to the physical failure to perform a contractual duty there mustbe added the intention to abandon future performance. Proof ofintention is not always easy, and the object of Rule 980 is to allowthe intention to be assumed from the fact of absence withoutreasonable explanation for fifteen days. The explanation has notgot to be one that exonerates the staff member from breach ofcontract or from other disciplinary measures, but it has to be onewhich negatives the intention to abandon
SCNandasena v. Uva Regional Transport Board (Fernando, J.)325
A bona fide challenge to the validity of an order is a satisfactoryexplanation for not complying with it. By challenging the order in themanner prescribed by the regulations, the complainant was affirmingthe contract, not abandoning it."
This principle has been consistently applied in Sri Lanka. In CeylonEstate Staffs' Union v. Superintendent, Meddecombra Estate (4>, aworkman had refused to accept a transfer on the ground that it wouldamount to a demotion ; he was dismissed for failure to comply withthe transfer order. Since there was no evidence that the workmanwas down-graded, and since his position remained unaffected by thetransfer, Weeramantry, J., upheld the termination of his services.However, it is quite clear that if the transfer did involve a demotion,the termination would not have been upheld. Weeramantry, J., posedthe questions for decision in this way ;
* This appeal thus involves a consideration of two matters,namely whether the transfer was so prejudicial to the employeeas to make the transfer wrongful, and secondly the propriety andlegality of the order of termination of services made for defyinga transfer order."
In the instant case, too, like questions arose for decision in appeal,both by the Court of Appeal and by this Court. Having referred toa judgment of the Indian Supreme Court, which recognized the rightof industrial tribunals to interfere if a transfer order was made malafide or for the ulterior purpose of punishing an employee for tradeunion activities, Weeramantry, J., held that the evidence placed beforethe Tribunal by the workman did not show that his emoluments wouldbe affected to an exent rendering justifiable his refusal to accept atransfer. Here, however, the evidence before the Tribunal could leadonly to one conclusion, that the disciplinary findings and order wereunjustified. While it is true that Weeramantry, J., observed :
“ No doubt the employee was entitled to contest the right ofthe management to make this transfer and the employee wasentitled to take the necessary steps towards bringing this disputeto adjudication in the manner provided by law. The employee wasnot entitled however to set the employer at defiance by flatlyrefusing to carry out orders “,
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ft is relevant that he nevertheless proceeded immediately to add :
■ There is of course no general principle that an employee isin all cases bound to accept such a transfer order under protest,for there may be cases where the mala Udes prompting such anorder is so self-evident or the circumstances of the transfer sohumiliating that the employee may well refuse to act upon it evenunder protest. In the present case however I do not think the orderswere of such a nature that it can fairly be said that the employeewas entitled flatly to refuse to obey them even under protest."
In Janatha Estates Development Board v. Kurukuladitta <5) theworkman was transferred as a punitive measure upon a finding ofmisconduct ; he denied the charge, and refused to comply with thetransfer order, whereupon he was dismissed. The Labour Tribunalhaving considered the evidence, took the view that the allegationsagainst him had not been proved in the Tribunal ; and therefore thatthe transfer order was unreasonable, that order was upheld on appeal.The only difference in that case is that the finding of misconduct wasreached without an inquiry, whereas here the finding was after aninquiry, but an appeal was pending. What is material, however, isthat in both cases the evidence before the Tribunal did not establishthe charge. Thus it is settled law that in the ordinary exercise of thejurisdiction of the Labour Tribunal and of the appellate courts,questions undoubtedly arise as to whether the charge (in respectof which a punitive transfer has been ordered) has been establishedin the Tribunal, whether the transfer was wrongful or inappropriate,and whether termination was, in all the circumstances, anappropriate punishment for non-compliance. Neither in law nor inequity does the fact that an employer has a disciplinary rule purportingto make dismissal (even if termed vacation of post) mandatory fornon-compliance with a transfer order compel those questions to beanswered in favour of the employer, or in any way fetter the jurisdictionof the Labour Tribunal or the appellate courts.
It has been urged that any recognition of an employee's right torefrain from complying with a transfer order would result in seriousabuse, in that there would be non-compliance with every transferorder. It is contended in reply that non-recognition of a limited rightof bona fide challenge of an improper transfer order would enable
SCNandasena v. Uva Regional Transport Board (Fernando, J.)327
an employer to dismiss an employee for frivolous reasons, withimpunity, by falsely finding him guilty of some trumped-up charge ;and then, without imposing the desired punishment of dismissal, tosubject him to a vexatious punishment transfer. The employee willthen be in a dilemma : if he proceeds on transfer, he therebyacquiesces and accepts his guilt; if he does not, he will be deemedto have abandoned his post, and, on the Respondent's contention,upon an application to a Labour Tribunal, the Tribunal can onlyconsider the question of vacation of post and is not empowered toinquire into the finding of guilt. There is considerable force in theAppellant's contention. It may well be that a vexatious punishmenttransfer amounts to a constructive termination, and that an employeemay challenge such a termination in the Labour Tribunal ; and thatcompliance with such an order will not amount to acquiescence whichbars his right to invoke the jurisdiction of the Tribunal. But that pointhas not been argued, and has to be decided another day.
The employer's argument based on the possibility of abuse cannotsucceed. The recognition of a limited right, bona fide to challengean improper transfer order cannot result in any injustice to theemployer. If the employer treats the employee as having vacated post,and the Labour Tribunal holds that the employee was guilty of thecharge, and that the transfer was an appropriate punishment, thevacation of post order will stand. If the Tribunal, however, finds thatthe employee was not guilty, there would be no injustice whatsoeverin the consequential finding that the punishment transfer was unjus-tified, that the vacation of post order was unwarranted, and thatreinstatement must be awarded. Indeed, it would be a travesty ofjustice, as in this case, for a Court to find that an employee's guilthas not been finally established either in the internal "due process"provided by the employer's rules and regulations, or by the proceduresestablished by law, but that nevertheless the punishment was proper,and therefore that non-compliance with the punishment justifiestermination. That would be to set aside the conviction, but allow thesentence to stand.
The contention on behalf of the employee has the advantageof consistency both with legal principle and equity. The employeewho declines to comply with a transfer order runs a great risk. Ifa Tribunal holds that he was guilty of the charge against him, andthat non-compliance with the transfer order was not bona fide, his
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dismissal will stand. If, however, he is not found to be guilty, reasonand justice require that the punishment be annulled.
The Tribunal and the Court of Appeal therefore erred in failingto address the basic issue of misconduct. At the commencement ofthe proceedings, the Appellant had moved for summons on theRespondent to produce the disciplinary inquiry notes and findings :the Respondent requested time and the matter was postponedfor 21.1.86. On that day it was submitted on behalf of the Respondentthat these documents were not being produced as they wereirrelevant, because the Appellant had been dismissed not on thedisciplinary findings, but for failing to report for work. It was furthersubmitted that the Respondent could not be compelled to producethese documents because batta had not been deposited ; in answerto the Tribunal, it was indicated that even if batta was deposited,they would not be produced ; and also that the witnesses who gaveevidence at the disciplinary inquiry would not be called to testifybefore the Tribunal.
Even if the Appellant was guilty of failing to reveal the correctfacts in relation to the incident in connection with which he was facingcharges, I am inclined to the view that the two punishments imposedwere unreasonable and disproportionate to the offence. Learnedcounsel for the Respondent did not contend that the deprivation ofhalf-pay during interdiction was proper. That apart, the deprivationof nine months salary was well as a punishment transfer is patentlyexcessive. However, that question does not now arise for determi-nation, for on the evidence before the Tribunal, only one finding waspossible – that the Appellant was not guilty of the second charge- because there was no evidence, suggestion or submission to thecontrary either before the Tribunal or on appeal. The Appellant'sappeal does not appear to have been disposed of by theRespondent ; had that appeal succeeded, then necessarily thepunishments imposed had to be set aside ; even if the appeal didnot wholly succeed, it was nevertheless possible that the appellatebody might have held that the transfer was an excessive punishment. I
I do not need to consider whether the Respondent ought,notwithstanding the disciplinary rules (perhaps upon the applicationof section 31(B) 4 of the Industrial Disputes Act), to have stayed thetransfer or to have transferred him to a place within the limits of his
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free travel pass. On the facts as they now appear, the punishmenttransfer was unjustified ; the refusal to proceed on transfer was basedboth on a bona fide challenge of the transfer order as well as oncircumstances which arguably supported a stay or a variation ; thatrefusal was therefore at most a technical breach not motivated byan intention to repudiate the contract, or to abandon his post, or defythe employer ; it did not warrant termination. The problem that nowconfronts the Respondent could have been avoided if the inquiryconducted by the Respondent in respect of the appeal against thevacation of post order had been consolidated with the appeal inrespect of the disciplinary proceedings.
I have considered whether this matter should be remitted to theTribunal for a further inquiry to enable the Respondent to leadevidence on the second charge. There are two reasons why thisshould not be done. The Respondent categorically refused to producethe witnesses and documents in relation to the second charge ; thisis therefore not a case of an inadvertent omission to prove someincidental fact, but a deliberate refusal to produce the evidencerelating to one of the main facts in issue. A party litigant in that positionshould not be given a second chance to rectify omissions or defectsof his case. Although that is a sufficient reason in itself, here therehas been a lapse of over seven years since the incident, and a furtherinquiry may well result in the lapse of another seven years beforea final decision.
It is settled law that if, as in this case, a Labour Tribunal failsto consider and decide a relevant issue, or addresses the wrongquestion, there is an error of law which entitles the aggrieved partyto redress from appellate courts in the exercise of their ordinaryappellate jurisdiction (Hayleys Ltd. v. de Silva® ; Lewis Brown & Co.Ltd. v. Periyapperuma(7); Colombo Apothecaries Co. Ltd. v. CeylonPress Workers Union(8); Brooke Bond (Ceylon) Ltd. v. Tea, Rubber(etc.) Workers Union (9> ; and it is that jurisdiction with which we arehere concerned, and not with an attempt to invoke powers of review,such as Certiorari for error of law. Where the error of law is sofundamental, as in this case, the undoubted duty and responsibilityof the appellate courts is, and their inveterate practice has been, togrant redress by ensuring a just and equitable order: not to declinejurisdiction. Section 31C of the Industrial Disputes Act does notauthorise a Labour Tribunal to deny an aggrieved party his right to
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an order which is just and equitable as between the parties, and withinthe framework of the law, on some uncertain and undefinedassumption, of fluctuating content, as to public benefit and thelike ; and if a Labour Tribunal makes an order which it is notempowered to make, it would be contrary to law (and hence to thepublic interest also) for the appellate courts to allow that order tostand.
I therefore set aside the judgements and orders of the LabourTribunal and the Court of Appeal, and make order as follows :
The Appellant will be reinstated forthwith with full back wages(inclusive of increments and other salary increases) from thedate of interdiction.
If the Respondent does not wish to continue the Appellant inemployment for any reason, the Respondent shall have tireoption of paying compensation, in lieu of reinstatement, in asum equivalent to three years salary, (computed on the basisof the salary he would presently be entitled to had he beenreinstated). This payment shall be in addition to the back wagesordered under (1) above.
The Appellant will be entitled to a sum of Rs. 5,000 as costsin the Labour Tribunal, in the Court of Appeal, and in this Court.
S. B. GOONEWARDENE, J.
This is an appeal taken against a judgment of the Court of Appeal,which considered and dealt with an order made by the Labour Tribunalupon an invocation of the jurisdiction conferred upon it by section31B (1) (a) of the Industrial Disputes Act.
To examine the questions that arise on such appeal, the followingbackground material is relevant.
The appellant joined the Ceylon Transport Board as a conductorin 1975 and on the decentralisation of the Board in 1978, wasassigned to the Uva Regional Transport Board, the respondent inthis appeal. He was attached to the Embilipitiya depot in the samecapacity as a conductor from the inception of such Regional Board
$C Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)331
and, except for a brief period during 1982-83, continued to beattached to such depot
Consequent upon an alleged incident of assault of the DepotManager of the Embilipitiya Depot on 26.3.84, the appellant wasinterdicted from service on 3.4.84 and a charge sheet (A2) was servedon him containing seven charges. The main charges related to anallegation of assault of such Depot Manager or of being concernedor connected therewith, although the appellant in his evidence beforethe Labour Tribunal had endeavoured to make out that such allegationrelated only to an attempt to assault.
After a domestic inquiry upon those charges, he was found notguilty of such main charge but guilty of two others, one of which(charge No. 5) was of misleading the Board by concealing the truthand/or making a false statement relating to such incident of assaultand the other (charge No. 7), that in consequence, he was not afit and proper person to hold employment under the Board.
The result of the inquiry was made known to the appellant bythe Personnel Manager of the Board by a communication dated 26thDecember 1984 (A1), which indicated that the punishments metedout to him were that he was disentitled to his salary payable duringthe period of his interdiction and that he was being subjected to adisciplinary transfer to another place of work. He was called uponby such communication to report forthwith to the Depot Manager ofthe Embilipitiya Depot in order to resume work and notified that hewould be informed of his new station subsequently. It was alsoindicated to him that if he was dissatisfied with the result of the inquiry,he was at liberty to make an appeal within one month. The appellantcontended before the Labour Tribunal that he did file such an appealand though that would appear to be the true position, a copy ofsuch appeal was not made available to such Tribunal, nor indeedany material adduced to show whether the same had been disposedof and if so with what result.
By R7 dated 31.12. 84 the new station to which the appellanthad been assigned to take up duties, namely the Ratnapura Depot,was made known to him, and by R7A of 10.1.85 while being notifiedthat he had been released from Embilipitiya for this purpose, had
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his attention drawn to the fact that up to that point of time he hadfailed to report to the Depot Manager of Embilipitiya as directed bynotification A1.
On 2.1.1985 the appellant addressed a communication to thePersonnel Manager (A5) under a heading indicating that the topicof such communication was that in connection with the incident ofassault on the Depot Manager, Embilipitiya, by resorting to the unlawfuldeprivation of wages and transfer to another station, there was aconstructive termination of his employment In the body of suchcommunication he had stated that he was intending to appeal againstthat order and requested that pending the appeal, the order of transferto Ratnapura be cancelled, failing which, he had added that he would,on the basis of the unlawful acts committed up to that time, namely,the failure to stay the transfer and the deprivation of his salary,consider that there was a constructive termination of his employmentand take action according to law. He had also called for a reply onor before 15.1.1985.
On 11.1.85 the Personnel Manager addressed a communicationto the appellant (A6), stating that according to the policy of the Board,whenever an employee committed an act against its principal admin-istrative officer in the depot, he had to be moved away forthwith fromthat depot. While stating that a very fair course had been adoptedin holding such a disciplinary inquiry and in making the resulting order,the Depot Manager had stressed that he had no authority to cancelthe disciplinary order of transfer already made, but that the appellantwas free to appeal and thereby endeavour to obtain any measureof relief.
The appellant next addressed a communication dated 21.1.1985to the Personnel Manager (A7), drawing attention to the contents ofhis earlier letter of 2.1.1985 (A5). Therein, he had stated that althoughupon an order in appeal, punishment could ordinarily be alleviated,there was no possible reversal of any punishment resulting in atransfer already given effect to and thus requested that pending theresult of the appeal he be transferred to the Godakawela Depot, asthis would enable him to utilise his free travel pass and thereby avoidextra expenditure.
SC Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)333
On the appellant's failure to take up duty at Ratnapura, a telegramhad been sent to him asking him to report for work immediately. Hisresponse, also by telegram (R1), was to the effect that he had senta letter to the Personnel Manager and was awaiting a reply. On hisfailure to report for duty at the Ratnapura depot, the Depot ManagerRatnapura then sent to the appellant a letter dated 8.2.85 (A8) whichstated that the reasons contained in the telegram were not acceptableand that the appellant had without giving notice, kept away and notreported or work. The appellant was called upon to tender anexplanation within seven days and in doing so, to support his absencewith a medical certificate, had he been ill. It contained a statementto the effect that if the appellant failed to furnish an acceptableexplanation, he would be treated as having vacated his post witheffect from 5.1.1985 and that action would be taken accordingly. Inresponse, the appellant addressed a communication dated 10.2.85to the Depot Manager, Ratnapura (A9), wherein he had stated thatthere had been an exchange of letters between himself and thePersonnel Manager and that he was awaiting a final decision. Hehad added that in response to letter A6 sent to him by the PersonnelManager, he had replied by letter A7 and was awaiting a reply thereto,to advice himself as to what lawful action he should take.
Thereafter, the Depot Manager Ratnapura addressed a commu-nication dated 22.2.1985 to the appellant under the heading," Failureto report for work without giving notice " (A10), which contained astatement that there had not been an explanation as to why he hadfailed to report for work from 5.1,1985 without giving notice, andthat accordingly he would be treated as having abandonedhis employment under the Board with effect from that date. Theappellant then addressed an appeal dated 28.2.85 to the PersonnelManager (A12), seeking a reinstatement and a posting to the depoteither at Kahawatta or at Godakawela, pending the result of his earlierappeal. By A13 of 1.4.1985, the Personnel Manager replied to theappellant rejecting such appeal, stating that since he himself hadabandoned his post the Board could not accept any responsibilityin that regard, that the reasons adduced for not reporting for workwere insufficient and that despite the true position having been madeclear to the appellant by his letter dated 11.1.85 (A6), he, theappellant, upon his own interpretation of matters had elected not toreport for work, that the appellant's absence was due, not tounavoidable or acceptable causes and that he was therefore treatedas having vacated his post.
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Apart from noting these factual matters which advisedly have beenset out somewhat in detail, it is important also to note that theconditions of service to which the appellant was subject, madeapplicable the Board's disciplinary rules (R6), in terms of which therecould be no stay of a disciplinary transfer pending the result of anappeal to the domestic appellate body, for which there was provisionin the rules. It is likewise necessary to note that the rules pertainingto leave (R8), also contained a provision that if an employee keptaway from work without informing the Board for a period of threeconsecutive days, a notice to him in terms similar to those containedin the notice A8 sent to the Appellant, had to be sent and that heshould be treated as having vacated his post.
The appellant subsequently went before the Labour Tribunalalleging that before a definite decision had been made by the PersonnelManager, the Depot Manager of the Ratnapura Depot had notifiedhim that he had failed to report for duty without giving notice andthat he was treated as having vacated his post. Upon a claim thatby punishing him and denying him his salary for the period of hisinterdiction and subsequently treating him as having vacated his postthere was an unlawful termination of his employment, he sought reliefby way of reinstatement and back wages.
At the inquiry before such Tribunal an endeavour had been madeon behalf of the appellant, to have brought before it, the notes relatingto the disciplinary inquiry earlier held against him, but this had beenresisted by the respondent Board upon an assertion that his serviceswere not terminated as a consequence of the findings made orpunishment imposed after such disciplinary inquiry, but that theappellant was deemed to have vacated his employment since he hadnot reported for duty as he had to do, when he was transferred toanother depot. The President of the Labour Tribunal for her part,considered that the failure of the appellant to report for duty in theexpectation of a reply, despite an earlier communication by thePersonnel Manager that he was unable to cancel the disciplinarytransfer, was without justification. The President was of the view thatthe document A5 written by the appellant to the Personnel Manageritself showed that the appellant was aware that despite an appeal,his transfer was to take effect. On the basis that the appellant hadnot obtained leave during the period of his absence and that in termsof the disciplinary rules the reason adduced by him for not reporting
SC Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)335
for work was not acceptable, the President concluded that theappellant himself had vacated his post, and accordingly dismissedhis application.
The appellant's subsequent appeal to the Court of Appealproduced the same result, that court concluding that the facts leadingto the disciplinary transfer had no bearing on the issue to be decidedby the Labour Tribunal, that the appellant who was in a transferableservice failed to report for work without obtaining leave and thattherefore the conclusion reached by the Labour Tribunal was a correctone.
Dissatisfied with that result, the appellant has once again takenthis appeal and has placed in the forefront of his case the contentionthat the Labour Tribunal failed to have before it the notes relatingto the disciplinary inquiry held against him and therefore failed tomake ail such inquiries and hear all such evidence, as is requiredby the industrial Disputes Act. The appellant has also contended thatthe Court of Appeal failed to determine the question as to whetheran employee is bound to accept an unjust, punitive transfer and/orwhether an employer could treat an employee who refuses to acceptan unreasonable punitive transfer as having vacated his employment.
It was submitted for the appellant in argument ; firstly with respectto the disciplinary transfer that it was not possible for him tohave complied and thereafter complained, for the reason that if hesucceeded on his appeal to the domestic appellate body there couldnot have been restitution as regards the period already served uponsuch punitive transfer; and secondly, in effect that, as the only wayin which he could have invoked the jurisdiction of the Labour Tribunalwas on the footing of an actual termination of his employment, hehad, so to say, to bring about that result, a position I find difficultto reconcile with the appellant's own claim I referred to earlier, thatthe very infliction of punishment upon him, he considered a construc-tive termination of his employment. It would suffice to say at this pointthat if his employment had been constructively terminated earlier,there should have been no need for him to have thereafter broughtmatters to a head by failing to report for work and thus exposinghimself to the possibility of his own discharge from employment, asin the event happened.
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If I understood Counsel for the appellant correctly, the effect ofwhat he said was that if the appellant acted upon his transfer, hewould have continued in his employment and he could then not haveinvoked the jurisdiction of the Labour Tribunal so as to enable himto challenge before such Tribunal the findings made and thepunishment imposed after such domestic inquiry, and therefore if hedid not adopt this course of action which as it happened producedthe result of his losing his employment, the appellant would havefound himself serving at Ratnapura upon his punishment transfer.That may have been an ingenious way,of trying to achieve a particularresult, but I am not altogether satisfied that it was something donewith due regard to the demands of propriety, as could be used tolead to the ultimate success of the appellant's, endeavours in thisregard. The course adopted, to my mind, savours of an attemptedcontrivance to confer a jurisdiction upon the Labour Tribunal that thelegislature did not intend it should have, a manipulation of eventsin order to try to do indirectly, that which could not have been donedirectly.
Be that as it may, I will now proceed to consider the caseput forward by the appellant on a twofold basis. The first is as towhether the imposition of this punishment transfer to Ratnapura asa consequence of having been found guilty by the domestic inquiringbody after an inquiry at which an opportunity of presenting his casewas available and which he availed of (there being no complaint inthat regard), could reasonably have been considered by the appellantas a constructive termination of his employment. We are here dealingwith a situation where there was an express right available to theemployer, the Board, as a matter of contract between the parties,to transfer the appellant out of the Embilipitiya Depot or any other,from time to time. Under what circumstances then might it have beenpossible for the appellant to have reasonably considered that therehad been a constructive termination of his employment, having regardto the fact that he was sought to be subjected to this single andsolitary instance of transfer, though no doubt by way of punishment,after a disciplinary inquiry had been held. Usefully one might considerhere a view expressed by S. R. de Silva in his Monograph No. 4“ The Contract of Employment " at page 162 thus :
SC Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)337
" But perhaps the conduct on the part of an employer whichwould amount to a constructive dismissal would have to amountto at least a breach of an implied obligation fundamental to theemployment relationship. For instance, repeated transfers of anemployee from one geographical locality to another in circum-stances which make it impossible for the employee to complywould, even where an express right of transfer exists, amount toa mala fide exercise of that power, thus amounting to aconstructive dismissal of the employee "
While not finding anything indicating a breach by the employerof an implied obligation fundamental to the employment relationship,i do not find anything suggesting the existence of a mala fideexercise of a power of transfer either, or indeed even an allegationto that effect. On the other hand, I find it difficult to reconcile theexistence even of a state of affairs suggesting something much less,such as perhaps would point to some impropriety on the part of therespondent Board, with the readiness expressed by the appellant totake up duties at a station of his choice at another depot. If theappellant was truly affronted by what he felt was an injustice doneto him by unfairly imposing a punishment by way of a disciplinarytransfer, that should have been so, whether the new station wasRatnapura he was ordered to report at, or Godakawela the stationhe suggested instead. This, to my mind, alters the basis of his truegrievance from the claimed one of unfair treatment meted out to himby the very act of transfer, to the actual one of unwillingness toundergo the inconvenience and expenditure involved in a transfer toa station not of his choice. On an objective evaluation of theappellant's case, I do not consider that the imposition of this transferand the forfeiture of his salary by way of punishment, after anadverse finding at a domestic disciplinary inquiry, had the effect ofa constructive termination of his contract of employment as claimed,there being no other complaint of wrongdoing by the respondent Boardother than with regard to the infliction of this punishment.
On the second basis, I will examine the appellan's position ona subjective footing, as perhaps in the manner suggested in hiscorrespondence with the Board, that he honestly considered himselfentitled to treat the punishment transfer made as amounting to aconstructive termination of his employment. What then could he havedone upon his conclusion to that effect, after receiving his orders
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to proceed to Ratnapura followed by the refusal to vary such order,despite his threat that such refusal would result in his takingappropriate action on the basis that such unlawful transfer was aconstructive termination of his employment? Before proceeding toanswer that question, it will be useful to reproduce the followingpassages from S. R. de Silva's Monograph “ The Contract ofEmployment “ (ibid) at pages 157 and 158 thus
" However, it is essential to bear in mind that in law atermination by the employer or by the employee can arise inconsequence of the conduct of the employer or the employee asthe case may be. In other words, either party may, in a givensituation, though not expressly terminating the. contract of employ-ment, by his conduct in relation to the other party, be guilty ofwhat is generally described as a constructive termination.
Where the conduct of one party amounts to a constructivetermination, then the law deems the contract in question to haveterminated as a result of the action of the party who has somisconducted himself. Therefore, if the employer has conductedhimself in relation to the employee in such a way as to amountto a constructive termination of the contract, then the terminationof the contract, will be deemed to be by the employer and suchtermination attracts the consequences of an express terminationby the employer, eg. the employee can have recourse to theLabour Tribunal on the basis that the employer has terminatedhis services."
The answer then to the question I have posed is, to say that inaccordance with what he threatened to do, no sooner he learnt ofthe respondent Board's position that the order of transfer was toremain unaltered, independent of his appeal made to the domesticappellate body, the appellant could have made an application to theLabour Tribunal claiming that the punishment meted out to him afterthe domestic inquiry was in reality a constructive termination of hisservices and on that basis, and not on the basis he did, soughtappropriate relief. Had he taken that step in that way, then, and onlythen, in my view, may it have been possible to have properly urgedthe Labour Tribunal to secure the production before it of thedisciplinary inquiry notes, as the very foundation of such applicationwould then have been a challenge to the legality of that order of
SC Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)
339
punishment made consequent to such disciplinary inquiry, that itamounted in reality to a constructive termination of his employment,thus rendering an examination of such notes by such Tribunal, anact that it could not have refrained from undertaking, in the properdischarge of its duty upon such application.
Instead, what course did the appellant choose to adopt? He optedto act in the manner he did of not reporting for work at his newstation, giving as his excuse that he was awaiting a final decisionfrom the Personnel Manager, when in fact such decision had alreadybeen made known to him by the latter, by his communication of11.1.85 (A6), wherein he had clearly pointed out that he lacked theauthority to cancel a disciplinary order or transfer. I therefore cannottake the view that the respondent Board was remiss in any regard,in contending, at the stage it did, which was in proceedings initiatedafter it was compelled to discharge him from employment forabsenting himself without excuse, that the notes relating to thedisciplinary inquiry had no relevance to the issue before the LabourTribunal. I
I will now proceed to consider the submission made for theappellant that it was not competent for the Board to discharge himfrom employment on his failure to report for work as ordered, atRatnapura. Two cases were relied on as being favourable to him,which it was claimed the Court of Appeal failed to take intoaccount, the first of them was the unreported case of the CeylonEstate Employers Federation v. Manukulasuriya and others (,). Thatcase was decided on the basis of a finding by the Presidentof the Labour Tribunal in proceedings by way of reference by theMinister of Labour for settlement by arbitration, that the availablematerial clearly demonstrated that the order of transfer therewas unjustified and consequently it was held that one who refusedto accept such a transfer had not repudiated his employment. Theother case was that of the J. E D. B. v. Kurukuladitta (5), where theCourt of Appeal held that an employee was not bound to complywith an arbitrary, punitive transfer and that a termination of servicein such a situation was not justified. In the instant case, there isno material upon which to say that the disciplinary order of transferwas unjustified or constituted arbitrary punishment.
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11933} iSriLR.
The views reflected in the following passages from the judgmentof Weeramantry J. in the case of Ceylon Estates Staffs' Union v.Superintendent Meddecombra Estate, Watagoda (4), commend them-selves to me as being of much relevance and importance in decidingthe present case.
“ No doubt the employee was entitled to contest the right ofthe management to make this transfer and the employee wasentitled to take the necessary steps towards bringing this disputeto adjudication in the manner provided by law. The employee wasnot entitled however to set the employer at defiance by flatlyrefusing to carry out orders.
One can well visualise the enormous practical difficulties
and the indiscipline that would result from the view that pendingany dispute as to transfer, the employee can refuse to act in theposition to which he has been transferred.'
I have not been referred to any dicta or judgments of this Courtrelating to the result of the disobedience to a transfer order. Therewould appear however to be Indian authority to the effect thatdisobedience to a transfer order can amount to misconductjustifying termination. In Workman of Phillips (India) Ltd. v. Phillips(India) Limited11(9 where a workman refused to accept a transferorder it was held by the Labour Court of Madras that it couldnot be contended that the order of termination for disobeying theorder of transfer was bad and inoperative on the ground that itwas passed without holding any domestic inquiry after the receiptof the explanation from the employee concerned. In cases whereit is not the employee's position that there was no such refusalon his part, but he only challenges the legality of the order oftransfer which he has admittedly disobeyed, it was held to beunnecessary to hold a further inquiry on this matter. By way ofanalogy with the public service, reference may also be made toGulam Haqquani Khan v. State of Uttar Pradesh ,11), whereit was held (ibid At p. 676) regarding a public officer, that" evenassuming that the transfer was invalid the petitioner was boundto have obeyed it. He could have filed an appeal or representationbut he could not have refused to carry it out ".
SC Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)341
The same approach of complying and then complaining did indeedcommend itself to Wijayatilleke J. as being the prudent course toadopt, in the case of the Ceylon Estate Employer's Federation v.Manukulasooriya and others (supra).
The response of the Personnel Manager to the appellant's requestmade to him in that regard by A5, was to inform the latter by A6,that he had no authority to interfere with the disciplinary transfer.Nonetheless the appellant by A7 made another request to the samePersonnel Manager on similar lines, but could hardly have reasonablyexpected a different response, having regard to the contents of A6which reflected the Personnel Manager's position that he had no suchauthority, a position consistent with the Board's disciplinary rules, ftis not possible to say therefore that it was incumbent upon thePersonnel Manager to have replied to A7, to repeat once again thesame thing, that he had ho such authority. Indeed there can scarcelybe any other reasonable conclusion here except that the appellant’sendeavour was not so much an attempt at obtaining genuine reliefin this regard, but rather that it was a thought out move to protractand prolong matters and thereby strive to secure a result he desired.
It seems to me therefore that the failure to report at the RatnapuraDepot, giving as his ostensible reason that he was awaiting a replyto A7 from the Depot Manager, was a deliberate and calculated actof disobedience amounting to a refusal to take up duty in that station,although not expressly stated in those terms and perhaps disguisedto look different. Even if one is therefore to take the view that therespondent Board terminated the appellant's contract of employment,
I think there was ample justification for taking that action, havingregard to the appellant's conduct in doing what he did, which in myview amounted to a wilful defiance of the authority of the respondentBoard and in the light of the provisions governing his employment,a virtual repudiation of his contract. I
I however incline to the view, one which learned Counsel for therespondent strenuously contended for, that rather than the respondentBoard terminating his employment under it, the appellant of his ownvolition secured his own discharge from employment under the. Boardby vacating his post, which according to the disciplinary rules bindingon him had to be the result of his being absent from work withouthaving obtained leave and failing to show justification for such absence.There is no doubt in my mind that the appellant conducted himself
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in a way which resulted in his discharge from employment, forcingupon the Board a step he compelled it-to take, leaving it no otherchoice. I cannot agree that he could have been permitted the libertyof considering himself the arbiter of whether what was inflicted uponhim by way of punishment was unjust or unlawful, so as to haveentitled him in the circumstances of this case to force the Board todo what it did, which was to treat him as having vacated his postand discharge him from employment, and thereupon to makeapplication to have himself reinstated by the Labour Tribunal whichif successful would have carried with it .the effect also of nullifyingthe punishment imposed after the adverse findings against him atthe disciplinary inquiry. I do not think, having regard to the entiresequence of events, that it was any act for which, the Board couldbe held responsible which resulted in the appellant losing hisemployment so that there would have been justification for orderinghis reinstatement.
The Court of Appeal in dealing with the appellant's appeal to it,was exercising an appellate power given to it by law. It was notexercising a supervisory power and therefore by extension, this Courtupon this appeal is not exercising any supervisory power either. TheCourt of Appeal was therefore not called upon, and by the sametoken this Court is not called upon, to decide upon the legality orreasonableness of the Board's rules relating to discipline and leave.
I am not therefore prepared, sitting on this appeal, as I might perhapshave been, if called upon to do in the exercise of a jurisdictioninvolving public law remedies, to examine these rules by referenceto which the Personnel Manager guided himself in refusing to staya disciplinary transfer pending an appeal to the domestic appellatebody, and pronounce upon them by way of review as to theirreasonableness or legality, so as to say or imply that such PersonnelManager or any other functionary of the Board should have acteddifferently, and it follows that I am not prepared to think that theserules should have been changed, modified or disregarded in orderto accommodate the demands of the appellant. Lest there be alikelihood of undesirable repercussions and consequences exercisinginfluence beyond the area of the questions involved in the presentappeal, I am not prepared to hold that the Personnel Manager, himselfacting in disregard of the rules framed by the Board as bindingon its employees and embodied as a condition of service in theappellant's contract of employment, could have felt free to stay the
SC Nandasena v. Uva Regional Transport Board (S. B. Goonewardena, J.)343
transfer of the appellant pending a decision on his appeal to thedomestic appellate body. This Court is the last Court and the tribunalof ultimate jurisdiction in the judicial hiararchy. Its orders rulings andjudgments are immune from legal challenge and anyone dissatisfiedtherewith has no recourse to further legal remedies. A consciousnessof this I think must constantly be in the Court's mind, reminding itof the need for the exercise of selfdiscipline and self-restraint in itsattempt to ensure that the influence of its actions is never other thanfor the public good.
To hold, as is what he asks the Court to do, that the appellantmust be reinstated would virtually amount to all or any of thefollowing : to saying without there being, for whatever reason, anymaterial upon which to do so, that the decision of the domestic tribunalthat the appellant was guilty was wrong ; to saying alternatively, ifthe findings against him after the disciplinary inquiry were justified,that the punishment consequently imposed upon the appellant, washarsh, excessive or without justification ; to act on this appeal asif it was, or has contained within it, the appeal to the domesticappellate body and in effect deciding such appeal in the appellant'sfavour ; to saying that notwithstanding the rules that should be' considered he was bound by, the appellant was relieved of the dutyto report forthwith to the Depot Manager of the Embilipitiya depotafter his period of interdiction as he was called upon to do bydocument A1 ; to saying likewise that the appellant had a right bothto persist in not wanting to take up his employment in the Ratnapuradepot, albeit as a result of a disciplinary transfer, and to keepaway without leave, when in fact the appellant was in transferableemployment and otherwise liable to be transferred to the Ratnapuradepot or elsewhere and thus to say in effect that the Board rulesdid not apply to him or alternatively that the Board had to act asthough they did not so apply ; to saying that the appellant was atliberty to nominate other stations of transfer of his choice other thanRatnapura in the event that the disciplinary transfer was being giveneffect to ; to saying that the appellant was entitled to even disregardcommunications which had the effect of pointing out to him theconsequences of his refusal to report for work as directed and tosaying that he had the licence even in his application for reinstatementmade to the Board, to nominate stations other than Ratnapura asstations of transfer. Indeed if the appellant was to be reinstated byan order of this Court, it would not surprise me to think that he would
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want that to be done, so as to enable him to work at the EmbilipitiyaDepot and if not there, at a station of his choice.
For myself, I am not prepared to go along with an order that wouldhave the effect of bringing about any such result and thereforeexpressing agreement with the concurrent findings of the LabourTribunal and the Court of Appeal that the answer to the only materialissue was that the appellant by his own conduct vacated his postand lost his employment, I would dismiss this appeal although withoutcosts.
WADUGODAPITIYA, J.
I have had the advantage of reading the judgment of my brother,S. B. Goonewardene, J; with which Judgment I agree.
I make order that this appeal be dismissed without costs.
Appeal dismissed.