LABOUR LAW- REINSTATEMENT- The maxim nemo debet bis vexari pro una et eadem causa has no logical application in disciplinary proceedings. Recovery of monetary loss from an employee does not preclude disciplinary action, as civil liability and disciplinary consequences may lawfully coexist.

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The Superintendent, Troup Estate v. Ceylon Estate Staffs’ Union

Labour Law, Termination of Employment, Domestic Inquiry, Misconduct, Admission of Liability, Compensation versus Reinstatement, Nemo debet bis vexari pro una et eadem causa, Burden of Proof, Loss of Confidence

The workman, a Junior Assistant Field Officer, was entrusted with the distribution of flour to estate workers. Following shortages of 101 kg in July 2008 and 110 kg in August 2008, a domestic inquiry found him guilty of serious misconduct, including falsification of records and misappropriation. He admitted responsibility for the shortage of 210 kg and agreed to repay the loss by deductions from his salary. His services were thereafter terminated.

The Labour Tribunal held the termination unjust and unfair, awarding reinstatement with compensation of Rs. 467,000. The High Court affirmed. On further appeal, the employer argued that the findings of misconduct and the admission of liability justified termination.

Held (Rajakaruna J., Wickremasinghe J. and Abayakoon J. concurring):

The maxim nemo debet bis vexari pro una et eadem causa has no logical application in disciplinary proceedings. Recovery of monetary loss from an employee does not preclude disciplinary action, as civil liability and disciplinary consequences may lawfully coexist.

An admission of shortage does not automatically constitute misconduct; misconduct requires proof of dishonesty, gross negligence, or breach of service conditions. The employer bears the burden of proof before the Labour Tribunal.

The evidence adduced failed to establish fraud or serious culpability by the employee. The termination was therefore unjust and unfair.

However, the employee’s admission of liability to repay the loss constitutes a special circumstance justifying departure from the general rule of reinstatement. Compensation awarded by the Labour Tribunal is affirmed, but reinstatement is set aside.

Order of the Labour Tribunal and High Court was affirmed in part and varied to exclude reinstatement. Employee awarded compensation only. No order as to costs.

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