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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC

OF SRI LANKA

In the matter of an application for Special Leave to

Appeal from a Judgment of the Provincial High Court of
the Southern Province holden in Galle in terms of the
Industrial Disputes Act and the High Court of the
Provinces (Special Provisions) Act No. 10 of 1990

Shanthi Sagara Gunawardena,

‘Sea Sand’, Habakkala,
Induruwa.
Appellant
SC Appeal 89/2016
SC SPL/LA 229/2015
GL/HC/LT/AP/1044/13 Vs,
LT 4G/112/2011
1. Ranjith Kumudusena Gunawardena
2. Indika Gunawardena
3. Nirosha Gunawardena

All of
8D 17, National Housing Scheme, Raddolugama

Respondents
And between

Ranjith Kumudusena Gunawardena

8D 17, National Housing Scheme, Raddolugama

1st Respondent -Appellant

Vs,

Shanthi Sagara Gunawardena,

‘Sea Sand’, Habakkala, Induruwa

Applicant-Respondent
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2. Indika Gunawardena
3. Nirosha Gunawardena

Both of
8D 17, National Housing Scheme, Raddolugama

Respondents-Respondents

And now between

Shanthi Sagara Gunawardena,

‘Sea Sand’, Habakkala, Induruwa

Applicant-Respondent- Appellant

Ranjith Kumudusena Gunawardena

8D 17, National Housing Scheme,
Raddolugama

1st Respondent -Appellant-Respondent

2. Indika Gunawardena
3. Nirosha Gunawardena

Both of
8D 17, National Housing Scheme,
Raddolugama

Respondents-Respondents-Respondents

Before: Hon. Vijith K. Malalgoda PC J

Hon. M.N.B. Fernando PC J
Hon. E.A.G.R. Amarasekara J
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Counsel: Suren Fernando with K. Wickramanayake for the Applicant-Respondent-Appellant

Pradeep Fernando for the 1st Respondent-Appellant-Respondent

Argued on: 08.02.2019

Decided on: 02.04.2019

Vijith K. Malalgoda PC J

The Applicant-Respondent-Appellant (hereinafter referred to as the ‘Appellant’) has instituted

proceedings before the Labour Tribunal of Galle against the 1st Respondent-Appellant-Respondent

(hereinafter referred to as the 1st Respondent) and 2nd and 3rd Respondent-Respondent-

Respondents (hereinafter referred to as 2nd and 3rd Respondents) alleging that the said

Respondents had wrongfully and unlawfully terminated his services from the post of

Superintendent, at a Cinnamon Plantation called “Punchimalakanda”.

The Respondents, responded to the complaint made against them, denying the employment of the

Appellant and the inquiry proceeded before the Labour Tribunal on that basis.

At the conclusion of the said inquiry, the Labour Tribunal held in favour of the Appellant and

ordered compensation in a sum of Rupees 375000/- to be paid to the Appellant for the wrongful

termination.

Being aggrieved by the said order, the 1st Respondent appealed to the Provincial High Court of

Galle and the said Provincial High Court by its judgment dated to 6th October 2015, allowed the said

appeal and set aside the findings of the Labour Tribunal dated 11.11.2013.

The Appellant who was aggrieved by the said judgment of the Provincial High Court of Galle had

preferred the instant application before the Supreme Court seeking special leave to challenge the
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above findings and when this matter was supported, this court granted special leave on questions

of law raised by the Appellant in paragraph 13 (a) – (e) of the petition dated 12.11.2015 which

reads as follows;

a) Did the learned Judge of the Provincial High Court fail to assess the evidence in an overall

manner?

b) Did the learned Judge of the Provincial High Court err in law in analyzing and applying the

applicable principles of the law of evidence and especially the burden of proof?

c) Did the learned Judge of the Provincial High Court err in law in failing to appreciate the

jurisdiction of the High Court in terms of section 31D (3) of the industrial Disputes Act?

d) Did the learned Judge of the Provincial High Court fail to appreciate that there was no error

of law on the part of the learned President of the Labour Tribunal which warranted the

invocation and/or exercise of the appellate jurisdiction of the High Court?

e) Did the learned Judge of the Provincial High Court err in law in failing to analyze and apply

the applicable legal principles and/or evidence pertaining to calculation of compensation?

It is well settled legal principle, that it is not open for Appellate Court to re-examine and re-

appraises the evidence analyzed by the learned President of the Labour Tribunal. Hence an

Appellate Court in appeal will not re-examine and/or re- appraises the material considered before

the Labour Tribunal unless there is a question of law on the face of the Record.

Section 31D of the Industrial Dispute Act No. 43 of 1950 also state that;

“That the order of a Labour Tribunal shall be final and shall not be called in question in any

court except on a question of law”

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However an exception to the above rule was discussed in the case of Jayasuriya V.Sri Lanka State

Plantations Corporation (1995) II Sri LR 379 when Dr. Amarasinghe J had observed that;

“The industrial Disputes Act No. 43 of 1950 states in section 31D that the order of a Labour

Tribunal shall be final and shall not be called in question in any court except on a question

of law. while Appellate Courts will not intervene with pure findings of fact e.g. Somawathie

vs. Baksons Textile Industries Ltd, Caledonan (Ceylon) Tea and Rubber Estates Ltd vs.

Hillman, Thevarayan vs. Balakrishnan, Nadarajah vs. Thilagaratnam, yet if it appears that

the Tribunal has made a finding wholly unsupported by evidence Ceylon Transport Board

vs. Gunasinghe, Colombo Apothecaries Co. Ltd vs. Ceylon Press Workers’ Union, Ceylon Oil

Workers’ Union vs. Ceylon Petroleum Corporation, or which is inconsistent with the

evidence and contradictory of it Reckitt & Colman of Ceylon Ltd vs. Peiris, or where the

Tribunal has failed to consider material and relevant evidence United Industrial Local

Government & General Workers’ Union vs. Independent Newspapers Ltd, or where it has

failed to decide a material question Hayleys Ltd vs. De Silva or misconstrued the question

at issue and has directed its attention to the wrong matters Colombo Apothecaries Co. Ltd

vs. Ceylon Press Workers’ Union (Supra), or where there was an erroneous misconception

amounting to a misdirection Ceylon Transport Board vs. Samastha Lanka Motor Sevaka

Samithiya, or where it failed to consider material documents or misconstrued them

(Virakesari Ltd vs. Fernando) or where the Tribunal has failed to consider the version of one

party or his evidence Carolis Appuhamy vs. Punchirala, Ceylon Workers’ Congress vs.

Superintendent, Kallebokke Estate or erroneously supported there was no evidence Ceylon

Steel Corporation vs. National Employees’ Union the finding of the Tribunal is subject to

review by the Court of Appeal.”

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Further in the case of Kotagala Plantations Ltd and Lankem Tea and Rubber Plantations (Pvt) Ltd

V. Ceylon Planters’ Society SC Appeal 144/2009 SC minute 15.12.2010 J.A.N de. Silva CJ had

observed that;

…. “It is not for an Appellate Court to review the evidence and come to a different

conclusion regarding the facts of the case unless the findings on the fact by the Tribunal was

against the weight of the evidence. In fact on a reading of the entirety of the judgment of

the High Court it would appear that the High Court Judge has misdirected himself”

As revealed before this court the Appellant and the 1 st Respondent are brothers and the 2nd and 3rd

Respondents are the children of the 1st Respondent. The land by the name of ‘Punchimalakanda’

was a five acre Cinnamon Plantation owned mainly by the 1st Respondent and his brother, the

Appellant too had a small portion of land closer to Punchimalakanda land where he too had

cultivated cinnamon.

It was the position taken by the Appellant, that since his retirement in the year 1996, he was

employed by his brother as the superintendent of the said land and he continued to maintain the

said land under the instruction of the 1st Respondent until the 1st Respondent transferred the said

land to his children, the 2nd and 3rd Respondents. The 2nd and 3rd Respondents being the new

owners of ‘Punchimalakanda, decided to dispose the said property after discontinuing, the services

of the Appellant.

However the above position taken by the Appellant was challenged by the 1st Respondent and it

was the position taken by the 1st Respondent that he continued to live in their ancestral home and

attended to the cinnamon cultivation on his own.

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Both parties have challenged each other with regard to the position taken up by them before the

Labour Tribunal and several documents including extracts of Electoral Registers were also produced

before the tribunal in order to assist the tribunal to come to a just an equitable finding. In this

regard we further observe that the permanent residency of the 1 st Respondent and the extent to

which he could involve in cultivation of cinnamon including fertilizing, maintaining and harvesting

cinnamon of the 5 acre land were matters to be decided by the Labour Tribunal and all the said

matters were questions of facts to be decided by the president of the Labour Tribunal.

However as observed by this court the learned High Court Judge in his very short judgment had

considered some of the facts such as the period spent for fertilizing the land and whether it is a full

time job for a person to look after five acre land and had decided to reverse the conclusions

reached by the President of the Labour Tribunal merely on few observations made on those points,

to which he is not entitled without analyzing the entirety of the evidence and come to a finding

that the findings of the President of the Labour Tribunal are against the weight of the evidence led

before the tribunal.

Even though the learned High Court Judge had observed that the tribunal has failed to give due

consideration to the evidence placed before it when concluding that the Appellant was employed

by the Respondents at ‘Punchimalakanda’ and thereby his services were wrongfully and unlawfully

terminated as complained by the Appellant, I see no merit in the said observations made by the

learned High Court Judge since it appears on perusal of the said order, that the Tribunal had taken

considerable effort to reach the said conclusion.

In the case of Air Port and Aviation (SL) Ltd Vs. K.D.H. Sunil SC Appeal 147/94 SC minute dated

23.03.1995 it was observed that,

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“Undoubtedly the President of the Labour Tribunal had advantage of seeing and hearing the

witnesses and observing their demeanors and was thus in a better position to assess their

evidence in relation to the questions of fact. In any event, it was not open to the High Court

Judge to interfere with such finding based on credibility, in the absence of an error of law.”

In the case of Ceylon Cinema and Film Studio Employees’ Union V. Liberty Cinema Ltd (1994) 3 Sri

LR 121 at 124 this issue was once again observed by court and held;

“It may be possible that the Appellate Court may come to a different finding on facts but

the evaluation of the facts is a matter for the tribunal”

In the said circumstances, I observe that the learned High Court Judge had misdirected himself

when he conclude that the President of the Labour Tribunal had failed to give due consideration to

the evidence placed before the tribunal.

Based on the above conclusion the learned High Court Judge had further observed that the

President of the Labour Tribunal could not have come to a just and equitable finding that there is a

termination of the Appellant by the Respondents and the said termination is wrongful and

unlawful. When reaching the said conclusion the learned High Court Judge had referred to the

decisions in Ceylon Transport Board V. Gunasinghe 72 NLR 76 and Suprintendent Nakiyadeniya

Group V. Coranelishamy 72 NLR 142.

However it is observed that, Weeramanthri J in the case of Ceylon Transport Board V. Gurusinghe

72 NLR 76 had identified the need for a proper finding on facts by the President of the Labour

Tribunal in the following terms,

“Proper finding of facts are necessary basis for the exercise by Labour Tribunals of that wide

jurisdiction given to them by the statute of making such orders as they consider to be just
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and equitable, where there is no such proper findings of fact the order that ensues would

not be one which is just and equitable upon the evidence placed before the Tribunal, for

justice and equity cannot be administered in a particular case apart from its own particular

facts”.

As referred to above in my judgment, the President has clearly analyzed the evidence placed before

the tribunal by both parties and come to a just and equitable finding. In the said circumstances,

I see no merit to the said observation made by the learned High Court Judge.

In this regard this court is further mindful of the decision in Asian Hotels and Properties PLC V.

Benjamin and five others (2013) 1 Sri LR 407 at 414 where Dr. Shirani Bandaranayake (CJ) had

observed that,

“It is well settled law that the Labour Tribunals are expected to grant just and equitable

reliefs. It is also necessary to be born in mind that for the purpose of granting such relief

there is no necessity for the Labour Tribunals to follow rigid rules of law.”

The learned High Court Judge had further observed that granting of compensation in a sum of

Rupees 375000/- is excessive for the reason that the learned President of Labour Tribunal when

granting the said compensation was of the view that the Appellant could work for further 12-15

years until he reached the age of 70 years.

As revealed before us, the Appellant’s contention was to receive compensation in lieu of re

instatement since the land in question had been transferred to a third party at the time he came

before the Labour Tribunal. In the said circumstances question of re- instatement was not a matter

to be considered by the President of the Labour Tribunal.

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Discretion of deciding the amount of compensation is a matter for the President of the Labour

Tribunal and, he has to consider the facts and circumstances of each case when using his discretion.

This position was decided in the case of Up Country Distributors (PVT) Ltd vs. Subasinghe (1996) 2

Sri LR 330 as follows;

“The award made by the tribunal is just and equitable. The tribunal has discretion in

determining the quantum of compensation, on the basis of the facts and circumstances of

each case. That discretion should not be unduly fettered.”

In the same case Wijetunga J had further observed,

“The legislature has in its wisdom left the matter in the hands of the tribunal, presumably

with the confidence that the discretion would be duly exercised. To my mind some degree

of flexibility in that regard is both desirable and necessary if a tribunal is to make a just and

equitable order.”

The roll of the Labour Tribunal when granting compensation was discussed by Vythialingam J in the

case of Ceylon Transport Board vs. A.H. Wijeratne 77 NLR 481 as follows;

“In making an order for the payment of compensation to a workman in lieu of an order for

reinstatement under section 33 (5) of the Industrial Disputes Act, a Labour Tribunal should

take into account such circumstances as the nature of the employer’s business and his

capacity to pay, the employee’s age, the nature of his employment, length of service,

seniority, present salary, future prospects, opportunities for obtaining similar alternative

employment, his past conduct, the circumstances and the manner of the dismissal including

the nature of the charge leveled against the workman, the extent to which the employee’s

actions were blameworthy and the effect of the dismissal on future pension rights. Account
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should also be taken of any sums paid or actually earned or which should also have been

earned since the dismissal took place.”

As observed by me the tribunal after concluding that the Appellant was wrongfully and unlawfully

terminated by the 1st Respondent, had proceeded to consider the relief that could be granted as

follows;

“fuu kvqfõ b,A,qïlre 1 jk j.W;a;rlre ;u b,A,qïm;%fhka fiajfhka my lsrSu

i|yd jkaos uqo,lao" ish¿u jHjia:dms; oSukdo wheo we;' fuu b,A,qïlre kej;

fiajfha mqkia:dmkh lsrSug yelshdjla fkdue;s nj meyeos,sh' ta wkqj Tyqf.A fiajh

wjika ùu fjkqfjka Tyqg jkaos uqo,la m%odkh lsrSu iqÿiq nj ;SrKh lrñ'

1996 j¾Ifha isg b,A,qïlre 1 jk j.W;a;rlre hgf;a jir 15 la fiajh lr we;s nj

idCIsj,ska fy<sorõ fõ' ^Tyq 1973 j¾Ifha isg w¾O ld,Sk fiajlhl= f,i fiajh l,

nj lshd we;' tlS w¾O ld,Sk fiajh fuu .Kkh lsrSï j,g we;=,;a lr fkdue;&

b,A,qïlref.a oeka jhi wjqreÿ 57 ls' Tyqg fjk;a /lshdjla fidhd .ekSug Tyqf.a jhi

ndOdjla nj meyeos,sh' Tyqg ;j jir 12-15la muK fiajh lsrSug yels nj Tyq lshd

we;' b,A,qïlre ksfrdA.S" fi!LHh iïmkak mqoa.,hl= neúka úksYaphdêldrhg tu

m%ldYh iuÕ tlÕùug yelh' ta wkqj b,A,qïlreg ;u /lshdj wysñùu fjkqfjka

Tyqg isÿjQ mdvqj iy 1 jk j.W;a;rlref.a f.ùfï yelshdjo ie,ls,a,g f.k

b,A,qïlreg jkaos uqo,la m%Odkh lsrSu iqÿiq nj fmfka' 1 jk j.W;a;rlreg oekg

l=re÷ bvfuka wdodhula fkd,efí' foafmd< úl=Kd ,enqK

q q uqo,a o Tyqg ,enqqKq njg

idCIs ke;' tu lreKq flfryso wjOdkh fhduq lsrSu wjYHh' b,A,qïlref.a fiajdld,h

jir 15la neúka Tyq fiajh l< tla jirlg udi 2l jegqm ne.ska Tyqg jkaos jYfhka

ysñ úh hq;= nj ;SrKh lrñ'”

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The tribunal has correctly considered all relevant issues and decided to grant 30 months

compensation in lieu of re- instatement and I see no reason to interfere with the compensation

awarded by the tribunal on the Appellant.

For the above reasons, I answer the questions of law raised in this case in the affirmative and allow

the appeal.

Appeal is allowed.

Judge of the Supreme Court

Justice M.N.B. Fernando PC

I agree,

Judge of the Supreme Court

Justice E.A.G.R. Amarasekara

I agree,

Judge of the Supreme Court