036-NLR-NLR-V-74-PILIYANDALA-POLGASOWITA-MULTI-PURPOSE-CO-OPERATIVE-SOCIETIES-UNION-LTD.-Appella.pdf
13S
AXrLES, J.—Piliyandala Polgasowita Multipurpose Co-operative
Societies Union Ltd. v. Liyanage
1970Present : Alles, J.
PILIYANDALA POLGASOWITA MULTI-PURPOSECO-OPERATIVE SOCIETIES UNION LTD., Appellantand D. C. LIYANAGE, Respondent
S. C. 43/69—L. T. 7/50/6S
Labour tribunal—Termination of an employee's services for past misconduct —Circumstances when it would be justified—Whether compensation can beawarded—"Misdirection in law”—Industrial Disputes Act {Cap. 131),s. 31 C (I).
Tho applicant-respondent M-as appointed on 15tli February, I96S, to a poston condition that if, during a probationary period of ono year, the employer wasnot satisfied with him, hi3 services wore liablo (o bo discontinued. Aboutfivo months afterwards his services wore terminated bocauso tho employer-appellant discovered that the respondent had been charged in 1946 in a.Magistrate’s Court for offonccs involving dishonesty and dealt with undersection 325 of tho Criminal Procedure Code.
Held, that the termination of tho respondent’s services was justified. Insuch a ease the omployoo is not entitled to an altornativo order of compensation.
Held further, that the omission of a labour tribunal to consider all suchevidence as it may considor necessary to mako a just and equitable order is abreach of section 31 C (1) of tho Industrial Disputes Act and amounts to amisdirection in law.
Appeal from au order of a Labour Tribunal.
N. D. Jciyasuriya, for the employer-appellant.P. Vimalachandiran, for the applicant-respondent-.
Cur. adv. milt.
April 7, 1970. Alles, J.—
The respondent was appointed Manager of tho Appellant Union onloth February 19GS on a monthly salary of Rs. 350 and continued tofunction as such until 16th July 196S, on which date he was questionedabout a criminal ease in which he was charged for criminalmisappropriation of cash and cheques in 19-16. He admitted that lieivas charged but that he Mas not convicted but dealt with under Section325 of the Criminal Procedure Code and warned and discharged. TheUnion official suggested that he should resign from his post and on hisrefusal to do so his services Mere terminated on 15th July 196S
AXLES, J.—PiliyandcUa Polgasourila Multipurpose Co-operative
Societies Union Ltd. v. Liyanage
139
with immediate effect. The respondent forwarded an appeal againsttho termination of his services on ISth July 1968 but by the Union’sletter of 20th July 1968 his appeal was rejected and Ins servicesdiscontinued. The respondent then made his application to the LabourTribunal and after enquiry the learned President held that tho respondenthad been questioned on a Police report which was not jjroduced at theinquiry on “suspicion”. The President also held that the Union hasnot adduced any grounds for this “ suspicion ” and he made orderthereafter that the respondent should be reinstated in his original poston or before 1st June 1969 or in the alternative, that ho should be paidRs. 3,500 as compensation in lieu of reinstatement. The present appealis from this order.
It has been urged by Counsel for the appellant Union that the Presidenthas erred in law in coming to the conclusion that the Union acted on“ suspicion ” without a report in discontinuing the respondent’s servicesand that the discontinuance was unlawful. According to the terms ofthe letter of appointment issued to the respondent on Sth April 196S,he was to be on ju'obation for a period of one year from the date ofappointment and if the management was not satisfied with him while hewas on probation he was liable to be discontinued by giving him onemonth’s notice or payment of salary to cover that period. This themanagement did on the termination of the respondent’s services. Whenthe. respondent was appointed he did not bring to the notice of the Unionthat he had been charged with criminal misappropriation of cash andcheques ; this lapse on the part of tho respondent was only broughtto the notice of the Union by tho Assistant Commissioner of Co-operativeDevelopment by his letter of 13th July 1968, a copy of which was filedwith the Union’s answer. This letter contained extracts from lettersreceived by the Iiispector-General of Police and the D. R. 0. RaigamKorale . and referred the Union to prosecutions for theft andmisappropriation of cheques committed in 1946-1947. The case recordshave been destroyed, but according to A1 Case No. S467 was institutedon 14th September 1946 in the Magistrate’s Court of Colombo Southin which the respondent was charged under Section 3G9 of thePenal Code and discharged for offences involving dishonesty andmisappropriation of public funds. Under Section 31 C (1) of theIndustrial Disputes Act it was the duty of the President “ to make allsuch inquiries into the application and hear all such evidence as thetribunal may consider necessary to make a just and equitable order”.The President has failed to consider the documentary evidence filed withthe answer of the Union, the contents of which have been corroborated .by the admissions of tho respondent in evidence. Such an omissionamounts to a misdirection in law which entitles the Union to obtainrelief from this Court (71 N. L. R. 69, at p. 72).
Although the respondent was correct when he said that he was not" convicted ” of a criminal offence and the Union was incorrect whenthey referred to' a “ conviction ” in – their letter of dismissal, it is
140
Fernando v. JSIahanlila
abundantly clear that tho respondent had been charged for offencesinvolving dishonesty and dealt with by a Court of law under Section 325of the Criminal Procedure Code. It was therefore a misdirection onthe facts on the part of the President to maintain that the Union onlyacted on “ suspicion ” and that in the absence of a Police report noaction could be taken against the respondent. In view of these disclosuresthe Union was justified in not being satisfied with the continuance of therespondent’s employment under them during the probationary periodand the termination was justified. In the light of the trend of recentjudicial decisions which have been referred to by me in S. C. 20/09 L. T.Case No. 2741 the misdirections amount to a question of law and thisCourt is justified in interfering with the order of the learned President.
To allow the order of tho President in this case to stand withoutinterference by this Court would amount to the grant of an open licenceto bodi9s in charge of public funds to employ dishonest persons in positionsof trust. The alternative order of compensation would only encouragesuch dishonest persons to seek employment in public bodies on the safoassurance of being paid a large sum of money from public funds ascompensation when their antecedents are discovered.
The appeal is allowed with costs.
Appeal allowed.