Appellate Division Cases
(Civil)
PARTIES
Shaw Wallace Bangladesh Ltd… …………………………Appellant
-vs-
Abdul Hakim and another ………………………………. Respondent
The Employment of Labour (Standing Order) Act (VIII of 1948), Section 19.
We have called for the office records and registers of the appellants to see by ourselves whether the respondent was entitled to the claim of the said amount as a permanent worker but we could not find any material on record to show that he is a permanent employee or he is either entitled to any overtime or bonus or any Tiffin, far less any entitlement of any arear bonus. It could not be conceived that a company of the appellants standard would leave the unpaid overtime due or the respondent shall also keep the same due for such an inordinate long period and there is nothing on recode that the respondent even claimed those amount so long. From the salary sheet of the month of December 1991 of the company we do not find the name of the respondent as a permanent employee. The Labour court, however, only on considering identity card No. 1968 and identity slip dated 15th of April 1971 treated him as a permanence employee of the company directed pay proportionate dues, But for the reasons as aforesaid, the first party respondent has failed to substantiate his claim of permanent employment under the appellant at the rate and for the period claimed by him. It appears from the materials that the first party respondent worker under the appellant as the senior supervisor and was paid wages at different times a different rates, the maximum of which was at Tk. 3086.52 in one month appearing in on of the wages pay slip (3)
JUDGMENT
1. Mohammad Fazlul Karim J:- This appeal by leave is directed against the judgment and order dated 30™ May 2000 passed by the High Court Division in Writ Petition No. 2095 of 1999 discharging the rule issued against the judgment and order dated 9.5.1999 passed by the First Labour Court, Chittgong allowing the case in part in Complaint Case no. 14 of 1993 whereby the second party appellant was directed to pay proportionate dues to the first party respondents on the basis of claim made by the first party in the schedule of is petition treating his service as of a permanent worker from 15th April 1971 within 30 days from the order. Leave was granted in the appeal to cosnider that; “Mr. Abdul Momen Chowdhury, learned Advocate for the petitioner, submitted that the High Court Division was wrong in not holding that the judgment of the Labour Court (Annexure-H) has been passed in the absence of any evidence, oral or documentary whatsoever, to prove that respondent No. 1 was in the permanent employment of petitioner relying on the alleged identity card dated 15.4.1971 issued to facilitate entry of the respondent to the restricted port area as and when he was engaged as a daily rated employee and he was never promoted to arious posts nor had received any monthly salary nor was verbally terminated on 18.10.1993 as alleged in his complaint petition and the same were based on no evidence. The learned Advocate next submits that the High Court Division was wrong in not holding that Labour Court did not at all consider the material and relevant evidence like the salary sheets for the month of December 1991 and December 1992 and member’s contribution for Provident Fund, all filled by petitioner in original enclosed with the list of documents dated 3.4.1999 and showing names of all permanent workers in the employment of petitioner, none of which bears name of respondent No. 1, he not being a permanent worker of the petitioner inasmuch as did not at all take into consideration either the 56 numbers of bills filed by second party petitioner enclosed with the list of documents dated 13.4.1999 or 10 (ten) Registers containing the said bills in original as submitted by first party respondent no. 1 enclosed with the list of documents, all of which clearly proved second party petitioner case that first party-respondent No.l used to be engaged as and when required for specific days, at specific rate and against specific vessels, calling at Chittagong port, from time to time ,for which the petitioner acted as local agent engaged as a daily rated employee.”
2. Mr. Abdul Momen Chowdhury the learned Counsel appearing for the appellants submits that the learned Judges of the High Court Division are wrong in not holding that the judgment and order of the Labour Court has been passed in the absence of any evidence, oral or documentary whatsoever, to prove that the respondent No . 1 was in the permanent employment of the appellant relying on the alleged identity card dated 15.4.1971 issued to facilitate entry of the respondent No.l to the restricted port area as and when he was engaged as a daily rated employee and he was never promoted to various posts nor had received any monthly salary nor was verbally terminated on 18.1.1993 as alleged in his complaint petition and the findings wee based on no evidence. The learned Counsel further submits that the learned Judges of the High Court Division are wrong in not holding that no where in the papers and documents filed by the appellant before the Labour Court the name of the respondent No. 1 was found as a permanent worker of the appellant and inasmuch as the Labour Court did not at al take into consideration the 56 numbers of bills filed by the Second Party appellant enclosed with the list of documents dated 13.4.1999 or ten (10) Registers containing the said bills on original enclosed with the list of documents, all of which clearly proved second porgy appellants case the first party respondent No. 1 used to be engaged as and when required for specific days , at specific rate and against specific vessels, calling at Chittagong port from time to time for which the 1st party respondent acted as local agent engaged as a daily rated employee. The learned Counsel lastly submitted that he High Court Division was wrong in not declaring the impugned judgment (Annexure-H) without lawful authority on the ground that the Labour Court has made out a third case holding that the first Party was at best a permanent worker from 15.4.71 while the case of the first party is that he was appointed in the year 1954 (no specific dated or month), as stated in his complaint petition and in the affidavit-inopposition and on the ground of stating a contradictory case holding in the same breath than he was at least a casual worker for more than 28 years, which was based on conjecture and surmise by wrongly shifting the burden upon the second party appellant saying that the second party failed to prove when it first appointed the first party, although the consistent case of the second party was that the first party was never appointed as their worker.
3. Admittedly the respondent has not adduced any oral evidence nor filed any document to support or substantiate his claim in support of his grievance petition. The respondent has also failed to prove his case claiming compensation at the rate of any monthly salary or any right to one months benefit for every completed year of service of 39 years at rate of TK 16,372/per month or that he was ever paid at the said monthly amount as his monthly salary though the respondent has claimed his months pay in lieu. Nothing has been filed to show either any admitted claim or contract that upon his termination of service he was entitled to 6 month’s notice, on the contrary, under the provision of section 19 of the Employment of Labour (Standing Order) Act it is provided that upc” termination of the employment of a permanent worker, the employee is only entitled to notice of 120 days in case of monthly rated worker together with compensation at the rate of 30 days wages for every completed year of service or any part thereof, in addition to other benefit to which he is entitled under the Act or any other law for the time being in force. The respondent has by appending schedule-B claimed an amount of Tk. 68,190/-0n account of overtime, bonus etc. and schedule-C for an amount of Tk. 1.97,000/-together with Tiffin allowance with effect from 1954. The respondent could not prove that he is entitled to any such bonus or overtime or tiffin charges as alleged in schedules B and C to his petgition before the Labour Court. We have called for the office records and registers of the appellants to scv by ourselves whether the respondent was entitled to the claim of the said amount as a permanent worker but we could not find any material on record to show that he is a permanent employee or he is either entitled to any overtime or bonus or any Tiffin, far less any entitlement of any arear bonus. It could not be conceived that a company of the appellants standard would leave the unpaid overtime due or the respondent shall also keep the same due for such an inordinate long period and there is nothing on recode that the respondent even claimed those amount so long. From the salary sheet of the month of December 1991 of the company we do not find the name of the respondent as a permanent employee. The Labour court, however, only on considering identity card No. 1968 and identity slip dated 15th of April 1971 treated him as a permanence employee of the company directed pay proportionate dues, But for the reasons as aforesaid, the first party respondent has failed to substantiate his claim of permanent employment under the appellant at the rate and for the period claimed by him. It appears from the materials that the first party respondent worker under the appellant as the senior supervisor and was paid wages at different times a different rates, the maximum of which was at Tk. 3086.52 in one month appearing in on of the wages pay slip. Thus the respondent upon his termination from the service of the appellant was entitled to notice of 120 days or in lieu wages at the above month rate at Tk. 3,086.52 only together with compensation of 30 days wages at the said rate for every completed year of service or part thereof from 15th of April, 1971 till alleged termination of his service on 18tn January, 1993.
The appeal is accordingly allowed in part without any order as to costs.
Ed
Source : III ADC (2006), 45.