INDRAJITH RODRIGO V.
CENTRAL ENGINEERING CONSULTANCY BUREAU

SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
AMARATUNGA,J.AND
MARSOOF, P.C., J.
S.C. APPEALNO. 57/2004
S. C. (SPL.). L.A. NO. 126/2004
H.C. APPEALNO. 105/2001
L. T. APPLICATIONNO. 13/1793/97
SEPTEMBER 25TH, 2008

Industrial Disputes Act No. 43 of 1950 -Section 31B - Application to a Labour Tribunal- Section 31C - Duties and powers of Labour Tribunal in regard to applications under Section 31B - Tribunal may make such order as may appear to be just and equitable - Maxim - ei incimbit probatio, qui dicit, non qui negat - Burden of proof lies upon him who affirms, not upon him who denies.

The High Court of the Western Province made the decision dated 25.03.2004 pursuant to an Appeal filed by the appellant - respondent-appellant (appellant) against the decision of the Labour Tribunal President, whereby the President made the order in favour of the appellant that he be reinstated in service in the respondent-appellant-respondent Bureau (respondent) and awarded Rs. 190,080.00 as compensation for the period he had been out of employment consequent to his interdiction and subsequent dismissal. In his appeal to the High Court, the appellant only sought to have the compensation ordered by the Labour Tribunal enhanced. There was also a cross-appeal filed by the respondent against the order of the Labour Tribunal. These appeals were taken up together in the High Court which decided in favour of the respondent and set aside the decision of the Labour Tribunal and dismissed the appeal of the appellant.

The appellant sought leave to appeal against the decision of the High Court and leave to appeal was granted by the Supreme Court.

Held:

(1) A Labour Tribunal, in the process of redressing grievances of workmen in a just and equitable manner, cannot lose sight of procedural propriety and evidentiary legitimacy.

(2) An unduly technical approach should not be adopted towards the equitable remedy provided by Section 31B of the Industrial Disputes Act.

(3) In Labour Tribunal proceedings where the termination of servioes of a workman is admitted by the respondent, the onus is on the latter to justify termination by showing that there were just grounds for doing so and that the punishment imposed was not disproportionate to the misconduct of the workman. The burden of proof lies on him who affirms, and not upon him who denies as expressed in the maxim ei incimbit probatio, qui dicit, non qui negat.

(4) It is a well established principle that the primary (albeit discretionary) remedy for harsh, unjust or unreasonable termination of employment is reinstatement to the same position or re-engagement to a comparable position held prior to the termination.

Held further:

    Reinstatement has always been awarded at the discretion of the Labour Tribunal or Court and such discretion has to be exercised judicially taking into consideration all the circumstances of the case.

(5) The back wages payable to the appellant have to be computed on the basis of the terminal salary drawn by him on the last day he actually worked for the respondent.

Cases referred to :

1. A. G. v. Windsor- 24 Beav 679

2. Manager, Ury Group, Passara v. The Democratic Workers' Congress -71 NLR4

3. Up Country Distributors (Put.) Ltd. v. Subasinghe - 1996 Sri L. R. 330

4. Associated Cables Ltd. v. Kulatunga - 1999 2 Sri L.R. 314

5. Millers Ltd. v. Ceylon Mercantile Industrial and General Workers Union - 1993 1 Sri L. R. 179

6. Vasudeva Nanayakkara v. K. N. Choksy and Others - S. C. Application No. 209/07, S. C. Minutes of 13. 10.2009

7. Amarajeewa v. University of Colombo 1993 2 Sri L. R; 327

8. Saleem v. Hatton National Bank - 1994 3 Sri L. R. 409

9. The Caledonian (Ceylon) Tea and Rubber Estates Ltd. V. J. S. Hillman 1977 79 (1) NLR 421

10. Sithamparanathan v. Peoples Bank- 1989 1 Sri L.R. 124

11. Jayasuriya v. Sri Lanka State Plantationas Corpora