Bangladesh Tobacco Company Limited Vs. Md. Azizul Huq and anoter

Appellate Division Cases

(civil)

PARTIES

Bangladesh Tobacco Company Limited and another …………………Appellants

-Vs-

Md. Azizul Huq and anoter …………………………………………..Respondents

JUSTICE

Mahmudul Amin Choudhury, CJ

Md. Ruhul Amin.J

Abu Sayeed Ahammed. J

JUDGEMENT DATE: 12th May, 2002.

Employment of Labour (Standing Orders) Act 1965, Section 17 (3)(b). Article 102 of the Constitution.

Bikash-Ranjan Das. Vs. The Chairman, Second Labour Court, Dhaka and others reported in 29 DLR (SC) 280.

If there was a failure on the part of the Labour Court in granting relief to the respondent under the law the only course open to the High Court Division was to send the case back to the said court for passing an order in accordance withlaw……………….. (5)

Domestic tribunal to come to a finding and it has also been held that the domestic

tribunal is not bound by the Evidence Act and the expression used by it cannot be

attributed to as if it were a civil court. It is only to be seen whether the employee did

make any statement and if from that statement a conclusion could be drawn ……………(6)

The Labour Court found that the respondent has a case but because of wrong prayer no relief can be granted. The High Court Division on the other hand granted

relief by way of reinstatement. In view of the aforesaid decisions of this Court we hold that the High Court Division was not justified in passing the order of reinstatement of the respondent in service with 50% back wages. The High Court Division acted beyond jurisdiction……………….. (8)

Civil Appeal No. 51 Of 1996 (From the judgment and order dated 31st July, 1996 passed by the High Court Division in Writ Petition No. 2607 of 1992).

Mr. Md. Khalilur Rahman, Senior Advocate (mrs, Syeda Afsar Jahan, Advocate with him),instructed by Mvi, Md. Whaidullah, Advocate-on-Record. …..For Appellants

Mr. Mansur Habib, Advocate, instructed by Mr.Md. Naqab AH, Advocate-on-Record.

……….For respondent No.l.

Not Represented……………… Respondent No.2

JUDGMENT

1. Mahmudul Amin Choudhury C. J.:-This appeal by leave is against judgment and order dated 31st July, 1996 passed by a Division Bench of the High Court Division making the Rule Nisi absolute in Writ Petition No. 2607 of 1992 and further directing the appellants company to reinstate respondent No.l in his service with 50% back wages.

2. The short fact leading to this appeal is that respondent-writ petitioner was earlier appointed as General Clerk (Seasonal) in 1967 by the appellant -company and was subsequently promoted to the post of assistant Supervisor (Field) in 1973 where subsequently he was confirmed, On 29.9.1978 he was charge sheeted by the management for committing theft, fraud or dishonesty in connection with employers business or property under section 17 (3)(b) of the Employment of Labour (Standing Orders) Act, 1965. It was alleged that on 11.3.1978 respondent recognized three farmers of Alamdanga buying centre of the company which purchased 13.545 pounds of Tobacco from those farmers though they were not registered with the company and the respondent showed fake registration numbers of those farmers. Respondent then submitted his explanation on 2.10.1978 denying the charge made against him which was subsequently found to be not satisfactory and a domestic inquiry committee found him guilty and ultimately respondent-writ petitioner was dismissed from service on 25.11.19. 78 Having

received no reply as to his grievance petition on 12.12.1978 respondent filed complaint Case No. 29 of 1979 in the Labour Court, Khulna alleging inter alia that the proceeding against him is illegal and mala fide and he was no give any opportunity to explain his position in relation to the charge nor was allowed to produce witness in support of his case and to disprove the charge, In the Labour Court it was prayed that dismissal order is illegal, mala fide and further that a declaration be made that he was still in service.

3. The present appellants entered appearance before the Labour Court and submitted that respondent was rightly dismissed from service after a proper inquiry in which he was found guilty of the charge. The Labour Court found that the relief as prayed for by the respondent cannot be given as it was not a civil court and that the respondent has not prayed for reinstatement in service with back wages. The Labour Court was not in a position to grant any relief even though dismissal was not tenable in law and with that finding dismissed the case. Respondent then moved the High Court Division in Writ Petition No. 230 of 1982 wherein a Rule was issued but due to proclamation of Martial Law on 24th March, 1982 the writ petition abated. Thereafter with the lifting of Martial Law respondent NO. 1 again filed Writ Petition no. 2607 of 1992 wherein due to the absence of the appellants’ Advocate the matter was heard ex parte and the Rule was med absolute in the terms as aforesaid.

4. While making the Rule absolute the High Court Division observed that the Labour Court was competent to pass any appropriate order granting relief to the respondent. It could pass any order as it deem just and proper and it might in appropriate cases order for reinstatement of any complainant. The High Court Division also observed that respondents’ prayer for the relief though made in a declaratory form was in essence a prayer for reinstatement in service with full back wages. It was further observed that the Court or Tribunal is constituted to do justice to the parties and not to throw away a case on technical ground. It was observed that people who come to take justice from a Labourt Court are mostly illiterate persons and a defect in the prayer portion should not stand in the way of giving relief to a worker when his complaint is found to be correct. The learned Judges ordered for reinstatement of the respondent with 50% back wages as noticed above.

5. Leave was granted to consider the following : “Mr. Md. Khalilur Rahman learned Advocate for the petitioners submits that although the High principles as above cannot be disputed, the High Court Division nevertheless acted in excess of its jurisdiction under Article 102 of the Constitution in arrogating to itself the powers of an appellate court over the decision of the Labour Court and granting a relief to the respondent which lies squarely in the discretion of that court. He submits that if there was a failure on the part of the Labour court in granting relief to the respondent under the law the only course open to the High Court Division was to send the case back to the said court for passing an order in accordance with law. In any event he submits that the High Court Division was not justified in passing the order for reinstatement of the respondent in service with 50% back wages after a lapse of 18 years from his dismissal from service following a proper departmental enquiry.”

6. Mr. Md. kahlulur Rahman, learned Counsel appearing on behalf of the appellants led us through the judgment of the Labour Court as well as of the High Court Division and submits that the Labour Court in passing judgment dated 27.1.1982 found after consideration of the materials that though the order of dismissal was not tenable in law but the Labour Court found that the declaratory relief as prayed for by the respondent could not be given as it was not a civil court and that the respondent not having prayed for reinstatement in service with back wages the Labour Court was not in a position to give any relief even though the order of dismissal was not tenable in law and with that finding dismissed the complaint case, But the High Court Division acted like an appellate

court and ordered for reinstatement of the writ petitioner respondent with 50% back wages though legally respondent was not entitled to any such relief. It is submitted that when there was proper inquiry by the department and when there was no prayer for reinstatement before the Labour Cour the High Court Division acted beyond jurisdiction in making the Rule Nisi absolute. Mr. Md. Khalilur Rahman in support of his submission placed reliance in the case of Bikash Ranjan Das. Vs. The Chairman, Second Labour Court, Dhaka and others reported in 29 DLR (SC) 280 wherein it has been held that when an order of domestic tribunal is challenged all that the court is to see is that whether the charge framed against the delinquent was such as constituted an offence or default which calls for a penal action and that the employee was given an opportunity to defend himself in allowing him to cross examine the witness and to call evidence in his support and that the tribunal was constituted by impartial person and that there were materials before the domestic tribunal to come to a finding and it has also been held that the domestic tribunal is not bound by the Evidence Act and the expression used by it cannot be attributed to as if it were a civil court. It is only to be seen whether the employee did make any statement and if from that statement a conclusion could be drawn by the domestic tribunal or not. That it has further been held that a different conclusion is possible is no ground for interference. Mr. Md. Khalilur Rahman also placed reliance in the case of Ayesha Slalhuddin Vs. Chairman 2nd Labour Court and another reported in 32 DLR(AD) 68. In that decision it has been held that the jurisdiction in the nature of certiorari is exercised by the High Court Division to issue such writs where the subordinate Tribunals acted wholly without jurisdiction or in excess of it or in violation of the principle of natural justice or refused to exercise jurisdiction vested in them or were there is an error apparent on the face of the record . It has also been held that the jurisdiction in the nature of certiorari is not so wide or large as to enable the High Court Division to convert itself into a court of appeal and examine for itself materials to come to a new finding and substitute it with findings of the tribunal whose judgment is under challenge. Mr khalilur Rahman placing reliance on the two decisions submits that the High Court Division acted illegally and without jurisdiction in making the Rule Nisi absolute directing reinstatement of the respondent with 50% back wages for which the writ petitioner has not made any prayer before the Labour Court.

7. Mr. Mansur Habib, Advocate appearing on behalf of the respondent submits that thought the respondent has not prayed for reinstatement with back wages before the Labour Court but the High Court Division is competent to give the relief by way of reinstatement with back wages as in the Labour Court the following prayer has also been made ” any other relief or reliefs may be awarded in favour of the petitioner including his back wages to which the petitioner is entitled in law and equity” and even is such a case the High Court Division could have sent back the case to the Labour Court for giving proper relief.

8. Admittedly respondent No.l has not prayed for his reinstatement in service with back wages, relief sought for is in declaratory form and the Labour Court found that such relief is not available to the respondent even though he has a good case for directing reinstatement. It appears from the perusal for the record that the Labour Court found that the respondent has a case but because of wrong prayer no relief can be granted. The High Court Division on the other hand granted relief by way of reinstatement. In view of the aforesaid decisions of this Court we hold that the High Court Division was not justified in passing the order of reinstatement of the respondent in service with 50% back wages. The High Court Division acted beyond jurisdiction. It is well settled that the High Court Division cannot sit as a court of appeal in such matters and act as a civil appellate authority. The law on the point has been very clearly expressed in the aforesaid two decisions of this Division and there is nothing to differ with these decisions.

9. In view of the aforesaid we hold that the High Court Division committed wrong and illegality in making the Rule, Nisi absolute and as such it requires interference. The appeal is. accordingly allowed, Judgment and order dated 31st July, 1996 passed by the High Court Division in Writ Petition No. 2607 of 1992 is hereby set aside and the Rule earlier issued is discharged. No order as to costs.

Ed

Source: I ADC (2004), 198