056-NLR-NLR-V-70-WATARAKA-MULTI-PUROISE-CO-OPERATIVE-SOCIETY-LTD.-Appellant-and-W.-WICKREMACHAN.pdf
Wataraka Multi-Purpose Co-operative Society Ltd. v. Wickremachandra
230
1967
Present: Tennekoon, J.
WATARAKA MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD.,Appellant, and W. WICKREMACHANDRA, Respondent
S. C. 48/67—Labour Tribunal Case LT/G/2569
Industrial Disputes Act—Section 33 (1) (d)-—Dismissal of workman on groundof inefficiency—Proof, by employer, of absence of malice not necessary—Compensation to dismissed workman—Circumstances when award would bean error of law.
When a workman’s services are terminated by the employer on the ground ofinefficiency, there is no burden on the employer to prove that ho acted withoutmalice in dismissing the workman. In such a case, if there was neitherillegality nor any finding that the dismissal for inefficiency was an unfairlabour practice it is an error of law to award any compensation to the workmanunder section 33 (1) (d) of the Industrial Disputes Act.
Ap
PEAL from an order of a Labour Tribunal.
W. Athulathmudali, for the Appellant.No appearance for the Respondent.
* (1966) 69 N. L. R. 164.
– (1958) 60 N. L. R. 307.
240
TENNEKOON, J.— Wataraka Multi-Purpose Co-operative Society Ltd. v.
W ickremachandra
November 4, 1967. Tennekoon, J.-—
In this case the respondent made an application to the Labour Tribunalin respect of the termination of his services with the appellant society.He was employed on the 12th November, 1965 on a temporary orprobationary basis and his services were terminated with effect from30th March, 1966. The applicant stated at the hearing before theLabour Tribunal that he was unjustifiably dismissed from service andthat he seeks re-instatement and back pay for the period that howas not employed, and any further relief that may be obtainable.
There is no doubt that the respondent was either on probation or wasa temporary employee. The society served a charge sheet on him on13th March, 1966 alleging inefficiency to which the applicant madeanswer on the 19th of March, 1966. The committee of the appellantsociety on the 20tli of March, 1966 decided to terminate the services of therespondent with effect from 30th March, 1966. The correctness of theappellant society’s findings that the applicant was inefficient findscorroboration in a report of the Area Co-operative Inspector who havinginvestigated the functioning of the society at or about the time of thedismissal of the applicant came to the conclusion that the applicant wasinefficient and ought to be dismissed. The Labour Tribunal accepts ascorrect this view of the respondent’s efficiency when it says :“ It is
especially because the applicant was not conversant with and accustomedto writing out of the books that the Area Co-operative Inspectorrecommended for the approval of the A. C. C. D. the dismissal of thisapplicant ”. These being the facts, the Tribunal went on further tosay “ It was their duty to have clearly proved to me that the dismissalwas made after due consideration and that it was made entirely free frommalice”. There was no allegation of malice or any suggestion that thedismissal was made for personal reasons influencing one or more membersof the society or its Committee of Management.
I think the Tribunal has erred in law in placing such a burden on theemploj^er. It is on this approach only that the Tribunal came to theconclusion that the dismissal of the applicant had not been ‘ honestly ’made. The conclusion cannot be allowed to stand in view of the errorin law earlier referred to. Further the Tribunal has awarded compen-sation under paragraph (d) of section 33 (1) of the Industrial DisputesAct without any finding that the termination of the respondent’s serviceswas either unlawful or contrary to accepted standards of fair labourpractices. If the respondent was in fact inefficient and there was neitherillegality nor any finding that termination of services for inefficiency wasan unfair labour practice it is an error of law to award any compensationunder Section 33 (1) (d) of the Act.
The order of the Labour Tribunal is set aside. The applicant-respondent’s application made to the Labour Tribunal is dismissed.No costs.
Order set aside.