SRI LANKA INSURANCE CORPORATION LTD V JATHIKA SEWAKA SANGAMAVA

SRI LANKA INSURANCE CORPORATION LTD. V.
JATHIKA SEWAKA SANGAMAVA

SUPREME COURT
GAMIN IAMARATUNAGA,J.
RATNAYAKE,J.AND
IMAM,J.
S.C. APPEAL NO. 14/2009
S.C. (H.C.) LA APPLICATION NO. 49/2008
L.T./MH/33/154/2004
JULY 7TH, 2010

Industrial Dispute - Transfer of employee as a punishment - Failure to report at the place to which he was transferred - Constructive termination of services - Vacation of post.

The workman (Appellant) was employed by the Sri Lanka Insurance Corporation as a minor employee in 1978 and in 2003 he held the post of Senior Document Assistant. From about 1987 he became a habitual late corner for work. He was warned for his late attendance but there was no improvement in his attendance. His explanation for corning late for work was that due to a head injury sustained in an accident he found it difficult to rise early to come for work.

He was directed by the Management to go before a Medical Board, but he neglected to comply with those directions. The workman was interdicted and a domestic inquiry was held on five charges. He was found guilty of all charges. Consequently, the punishments meted out were deferment of increments, immediate transfer to Batticaloa Branch and reinstatement without back wages as an alternative to dismissal. The workman was informed of the punishment imposed and that his new station was the Batticaloa Branch.

On receipt of the letter, the workman wrote to the Senior Manager, Personal Department that he did not agree with the punishment imposed on him. In that letter he had stated that the deprivation of back wages, deferment of increments and immediate transfer to the Batticaloa Branch constituted a constructive termination of his services

and he would be appealing against the order made against him. In that letter he had further requested that he should be reinstated in the same place where he worked. There was no reply from the employer to his letter. The workman did not report to the Batticaloa Branch for duty. He was informed by the Management that he was deemed to have vacated his post by failing to report for work at the Batticaloa Depot.

Thereafter the Appellant made an application to the Labour Tribunal in respect of the termination of his services. After inquiry the Labour Tribunal allowed the application filed on behalf of the workman and ordered to reinstate the workman with back wages limited only to three months.

The employer appealed against the order of the Labour Tribunal to the High Court. The High Court dismissed the appeal on the basis that there was no question of law involved in the Appeal. The employer appealed against the order of the High Court to the Supreme Court.

Held:

(1) An employee who is transferred as a punishment, consequent to the finding at a domestic inquiry, has to first obey it and comply with the transfer order and then complain against it by way of an appeal. The failure to report at the place to which he is transferred and keeping away from work, without obtaining leave to cover his absence from work, is a calculated act of disobedience and by his own conduct, secures his own discharge from the contract of employment with his employer.

(2) The failure of the learned President of the Labour Tribunal to approach the question of vacation of post in the proper legal perspective applicable to the facts of this case and the finding of constructive termination based on an unsupported assumption had raised questions of law which should have been considered by the High Court.

(3) The President of the Labour Tribunal had failed to look at the question of vacation of post in accordance with the legal position applicable to a situation where there is a total refusal by a workman to comply with a transfer order made by way of a punishment after a disciplinary inquiry.

(4) The High Court had failed to consider the legal result of the workman's total re

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