M/s. Standard Match Factory Ltd Vs. The Chairman, First Labour Court

Appellate Division Cases

(Civil)

PARTIES

M/s. Standard Match Factory Ltd……………….Appellant.

-VS-

The Chairman.

First Labour Court, Chittagong and others ………………..Respondents.

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATE: 1st March, 2004

The Industrial Relations Ordinance, (XXII of 1969), Section 7(2), 7A(l)(b), 10(2), 11,19(2).

Neither the appellant nor the respondent No.3, could prefer any appeal against the judgment of the Labour Court dated 29.8.92 inasmuch as under section 11 of the IRO appeal lies only against order of the Labour Court cancelling the registration of a Labour Union under section 10 of IRO and so under section 11 of IRO no appeal lies against an order of the Labour Court rejecting an application of the Registrar Trade Union under section 10(2) the I.R.O. as in the present case and the High Court Division failed to consider the provisions of section 11 of IRO and that there having been no remedy under I.R.O, the appellant had no other alternative but to invoke the writ jurisdiction and that the impugned judgment of the Labour Court having directly caused hurt to the appellant and the Trade Union Case No.22 of 1988 having been filed before Labour Court by the respondent No.2 at the very instance of the appellant, there cannot be any doubt that in fact the appellant is be aggrieved and so the question of locus-standi has been wrongly decided causing great prejudice to the appellant ……………………(8)

Trade Union does not cease to exist due to retrenchment of its workers or the workers retain the membership of their union and it also appears the provisions of section 7A(1) (b) of IRO do not provide so ……………..(13)

Civil Appeal No. 54 of 1996. (From the Judgment and Order dated 27 August, 1996 passed by the Hiah Court Division in Writ Petition No. 3430 of 1992).

Md. Khalilur Rahman, Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record ………………………….For the. Appellant.

Ex-parte…………………………. Respondents

JUDGMENT

1. Md. Tafazzul Islam J: – This appeal by way of leave is against the judgment and order dated 27th August, 1996 passed by the High Court Division in Writ Petition No. 3430 of 1992 discharging the Rule.

2. The appellant filed the above writ petition stating inter alia that while engaged in the manufacture and trading of safety matches, they faced serious problems in the production of safety matches due to non-availability of raw materials, non-receipt of import licence as well as financial difficulty and so they were ultimately compelled to lay-off the workers of their factory by notice dated 23.9.87 and since the situation did not improve within the next 45 days, all the said workers of the factory of the appellant were retrenched with effect from 10.11.87 and they were paid all their legal dues; the above retrenchments did not lead to any industrial dispute not it was challenged by any of its workers or the Labour Union of the Match Factory, the respondent No. 1; the retrenched workers after receiving retrenchment benefits ceased to be “workers” of the petitioners company and as a result the respondent No. 1 lost its entitlement to continue with their registration under section 7(2) of the IRO, 1969 for not having 30% of the workers as their members; the petitioner by their letter dated 15.4.88 having informed the respondent No. 3 about the above lay-off and retrenchment the respondent No. 3 caused an enquiry through the Assistant Director of Labour, Regional Labour Office, Chandpur, and on the basis of the report submitted by the said Assistant Director of Labour and being satisfied about the reasons and situation for retrenchment the respondent No. 3 filed Trade Union Case No. 22 of 1988 under section 10(2) of IRO before the Labour Court, Chittagong seeking permission for cancellation of the registration of the respondent Nno.l Union bearing Registration No. 1390 on the grounds that all the workers of the Match Factory being retrenched and their legal dues were fully paid off and the Match Factory was in closed condition and the membership of the respondent No. 1 did not constitute 30% of the workers in employment it became non existent. The respondent No. 1 contested the above case and filed written statement denying the material allegations made in the above petition of the trade union case and contending inter alia that all the workers of the petitioner’s factory were never retrenched, they were never paid their retrenchment dues, the Match Factory was not closed, the retrenchment or termination of the workers of the Match Factory did not ipso facto take away the membership of the workers of the respondent No.l and further since the retrenched workers of the March Factory did not resign from the membership of the said Labour Union, it could not be said that the said Labour Union became non-existent.The Labour Court after hearing the parties and considering the exhibits and other papers and documents, by judgment and order dated 17.8.91, allowed the case and permitted the respondent No. 3 to cancel the registration of the respondent No.l.

3. In the meantime, on or around August, 1989 the former sponsor-shareholders of the petitioner transferred their shares as well as other properties of the company to the present management of the petitioner and then, after two years of the said retrenchment of workers and closure of the Match Factory, the new management of the petitioner company resumed production with new recruits.

4. The respondent No. 1, being aggrieved by the above judgment and order of the Labour Court dated 17.8.91, filed Appeal No. 18 of 1991 before the Labour Appellate Tribunal and by judgment and order dated 23.4.1993 the learned Member of the Labour Appellate Tribunal, set aside judgment and order dated 17.8.91 passed in the above Trade union caseNo. 22 of 1988 and sent back on remand the trade union case to the Labour Court Chittagong for fresh hearing and then as per direction of the Appellate Tribunal the parties submitted documents in support of their respective cases waiving formal proof thereof as the documents were not disputed and the said case was then heard afresh and after hearing by judgment and order dated 29.8.92 the Labour Court rejected the application of the respondent No.3 for cancellation of registration of the respondent No. 1.

5. The respondent No.l filed affidavit-inopposition denying the material facts and contending amongst other that the petitioner not being aggrieved by the judgment of the Labour Court has no locus standi to file the writ petition and moreover the other remedies like filing appeal were not exhausted.

6. The High Court Division after hearing discharged the Rule on the ground that no appeal was filed before the Labour Appellate Tribunal against the above judgment and order dated 29.8.92 and the appellant company not being a party to the said Trade Union Case No.22 of 1988 and not being aggrieved by the said judgment dated 29.8.92, had no locus standi to file or maintain the above writ petition.

7. Leave was granted on the following terms:”Learned Advocate for the petitioner, submits that the aforesaid view taken by the High Court division was erroneous on two grounds-one, neither the petitioner nor the Registrar of Trade Unions could prefer any appeal against the judgment of the Labour Court dated 29.8.92 inasmuch as no appeal lies to the Labour Appellate Tribunal under section 11 of the I.R.O. against an order of the Labour Court rejecting an application of the Registrar under section 19(2) of the I.R.O. and, (2) there having been no remedy under the I.R.O. the petitioner was entitled to invoke the writ jurisdiction because the impugned judgment of the labour court directly caused hurt to the petitioner company and at any rate the petition before the labour court having been filed at the instance of the petitioner, there cannot be any doubt that ultimately the petitioner was the aggrieved person. The question of locus standi has been wrongly decided causing great prejudice to the petitioner. The point raised merits consideration.”

8. Mr. Khalilur Rahman, the learned counsel for the appellant, submits that neither the appellant nor the respondent No.3, could prefer any appeal against the judgment of the Labour Court dated 29.8.92 inasmuch as under section 11 of the IRO appeal lies only against order of the Labour Court cancelling the registration of a Labour Union under section 10 of IRO and so under section 11 of IRO no appeal lies against an order of the Labour Court rejecting an application of the Registrar Trade Union under section 10(2) the I.R.O. as in the present case and the High Court Division failed to consider the provisions of section 11 of IRO and that there having been no remedv under I.R.O, the appellant had no other altem iiive but to invoke the writ jurisdiction and thut the impugned judgment of the Labour Court having directly caused hurt to the appellant and the Trade Union Case No. 22 of 1988 having been filed before Labour Court by the respondent No.2 at the very instance of the appellant, there cannot be any doubt that in fact the appellant is be aggrieved and so the question of locus-standi has been wrongly decided causing great prejudice to the appellant.

9. None appeared for the respondents. As it appear the Labour Court dismissed the above Trade Union Case No. 22 of 1988 holding that at the time of re-hearing of the case both the parties filed papers and documents in support of their respective cases but neither of the parties produced any witness to formally prove the respective papers and documents filed by them and although the respondent No.3 contended that the petitioner company served lay off notice on 26.9.87 on the ground of shortage of raw materials and chemicals, but there is no cogent evidence before the Labour Court to hold that the notice was duly issued under the relevant provisions of law and there was no lawful and valid notice in support of the case of the respondent No. 3 that the workers of the respondent No. 1 union was retrenched with uptodate dues and further, a trade union does not cease to exist merely on the ground of retrenchment of all workers, if they can retain their membership with the union as per provision of S. 7-A(l) (b) of the said Ordinance and accordingly a trade union does not become nonexistent merely on the ground of the retrenchment of workers unless and until the retrenched workers tender their resignation and further although there was an allegation in the petition that the respondent No. 1 violated the provisions of the said Ordinance and also the provisions of the constitution of the union, but there is no categorical or specific allegation as to which provision of law or the constitution has been violated.

10. The High Court Division discharged the Rule mainly on the ground that the proceeding before the Labour Court was started by the respondent No.3 on receipt of an application from the appellant and the respondent No. 3 having preferred no appeal against the impugned judgment to the Labour Appellate Tribunal, the appellant filed the instant writ petition and obtained the rule but since the appellant was not a party before the Labour Court it can not complain against the impugned judgment and the proper remedy for the appellant was to request the respondent No.3 to prefer an appeal against the impugned judgment and in a certiorari proceedings, the parties before the tribunal below are the proper parties and none except any one of such parties is competent to prefer an appeal to the Appellate Tribunal below are the proper parties and none except any one of such parties is competent to prefer an appeal to the Appellate Tribunal and further it is only after being aggrieved by the judgment of the appellate tribunal only either of the parties may seek remedy under writ jurisdiction and accordingly the appellant not being a party in the proceedings before the Labour Court, though interested in the result of the proceedings, has no locus standi to invoke writ jurisdiction directly but however had the appellant even appeared as a witness they could be considered to be an aggrieved person in view of any decision or observation in the said judgment and that not being so the appellant is not an aggrieved person.

11. But as it appears from the records it is at the instance of the petitioner that the respondent No.3 filed the above Trade Union Case No. 22 of 1988 in the Labour Court, Chittagong seeking permission for canceling the registration of the respondent No. 1 and it also appears that in the facts and circumstances it is only the appellant who in fact became aggrieved by the order dated 29.8.92 passed by the Labour Court, Chittagong in rejecting the application filed by the respondent No.3 under section 10(2) of IRO.

12. Further section 11 of Industrial Relations Ordinance, merely provides that a trade union aggrieved by the order of cancellation of its registration under section 10 may, within sixty days from the date of the order, appeal to the Labour Appellate Tribunal which may uphold or reject the order. It thus appears that under section 11 of the IRO appeal lies merely against order of cancellation of registration under section 10 of IRO and no appeal lies against decision the Labour Court against an order of rejecting of an application for cancellation of a registration of Trade Union under section 10(2) of IRO and so there being no scope of any appeal before the Labour Appellate Tribunal the appellant was entitled to invoke writ jurisdiction.

13. Further there is no provision in the IRO to the effect that a Trade Union does not cease to exist due to retrenchment of its- workers or the workers retain the membership of their union and it also appears the provisions of section 7A(1) (b) of IRO do not provide so.

14. Accordingly the appeal is allowed without an order as to costs and the judgment and order dated 29.8.92 passed by the Labour Court, Chittagong is set aside. The Trade Union Case No. 22 of 1988 is allowed.

Ed.

Source: I ADC (2004), 558