Case No: Civil Appeal No. 59 of 1997
Judge: Mohammad Abdur Rouf ,
Court: Appellate Division ,,
Advocate: Sayyid Shahid Hussain,,
Citation: II ADC (2005) 128
Case Year: 2005
Appellant: Adamjee Jute Mills Ltd.
Respondent: Chairman, Labour Court
Subject: Labour Law,
Delivery Date: 1998-8-16
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Muhammad Abdur Rouf, J.
Adamjee Jute Mills Ltd. and another
Chairman, Labour Court and another
August 16, 1998
Employment of Labour Ordinance (Standing Orders) Act (VIII of 1965)
Industrial Relations Ordinance (XXVIII of 1969)
Sections 19, 34, 43
The impugned letter of termination does not contain any stigma upon respondent No. 2 and on the face of it is a termination simpliciter and is well covered by the provision of section 19 of the Act. The termination was not a sequel to any trade union activity on the part of the respondent No. 2 nor does he claim that no termination benefit was not given to him. In this view of the matter we find merit in the appeal. …. (6)
Sayyid Shahid Hussain, Advocate instructed by Md. Nawab Ali, Advocate-on-Record - For the Appellant.
Korban Ali, Advocate instructed by Mrs. Azra Ali, Advocate-on-Record - For the Respondent No. 2.
Ex-parte - For the Respondent No. 1.
Civil Appeal No. 59 of 1997.
(From the Judgment and Order dated 10.3.97 passed by the High Court Division in Writ Petition No. 2122 of 1995)
This appeal, by leave, has been prepared by M/s Adamjee Jute Mills Limited and its Deputy General Manager from the Judgment and order dated 10-3-97 passed by a Division Bench of the High Court Division in Writ Petition No. 2122 of 1995 discharging the Rule Nisi and upholding thereby the decision given on 4.9.95 by the Third Labour Court, Dhaka in Complaint Case No. 19 of 1993 under section 25 of the Employment of Labour (Standing Orders) Act, 1965, briefly 'the Act' allowing the case and directing re-instatement of respondent No. 2 in the service of appellant No. 1
2. Relevant facts, in brief, are: - respondent No. 2 Md. Ismail since 10.5.65 had been serving as a mistry in Adamjee Jute Mills Ltd. His service was first terminated on 10.1.75, but on consideration of his representation the concerned authority reinstated him on 6.9.77. Again he was terminated from service on 9.3.88 but in view of his representation the same was withdrawn on 12.4.89 subject to the condition that the money he had received on account of termination benefit should be refunded. Accordingly he refunded the money taken on 10.5.89. Thereafter on 11.5.89 a letter of reinstatement was issued allowing him to join in service on condition that he would not get any salary for a period of 13 months 4 days so long he had been out of service. In pursuance thereof he joined in service. Subsequently he submitted a representation to the concerned authority claiming arrears of salary in respect of the period contained in the said letter dated 11.5.89. Having failed to get any relief in the matter he instituted I.R.O. Case No. 43 of 1989 under section 34 of the Industrial Relations Ordinance, 1969, briefly I.R.O, claiming arrear of salary for the aforesaid period. During pendency of the said IRO case while he had been on yearly leave appellant No. 2 by an office order dated 26.3.93 again terminated his service challenging which respondent No. 2 instituted the aforesaid complaint case under section 25 of the Act alleging, inter alia, that the impugned termination is a malafide one being in fact an order of dismissal in the garb of termination with a view to defeating the purpose of the aforesaid pending IRO case.
3. The appellants contested both the cases by filling written statements denying the material allegations of respondent No. 2. Their case, inter alia, is that I.R.O. Case No. 43 of 1989 is not maintainable, in view of the fact that the same was not instituted in relation to any industrial dispute or in the manner prescribed therefore, as provided in Section 43 of the IRO, that the complaint case was also not maintainable, in view of the fact that against an order of termination simplicitie no case lies under Section 25 of the Act.
4. Considering the evidence of 1 PW and 4 DWs along with the other documentary evidences the Labour Court dismissed the I.R.O. Case holding, inter alia, that there being no industrial dispute the same was not maintainable and that respondent No. 2 was not entitled to the salary he had not earned prior to his termination from service on 11.5.89. The Labour Court further held that although in view of the provision of Section 19 of the Act no complainant case lies against an order of termination simplicities under Section 25 thereof, the appellant wrongly terminated the service of respondent No. 2 during pendency of the IRO Case and that the appellant acted malafide. Upon such findings the Labour Court allowed the complaint case and directed re-instatement of respondent No.2 in service.
5. Against the said judgment of the Labour Court, the appellants moved the High Court Division under Article 102 of the Constitution calling in question the property of the judgment and order of the Labour Court and obtained a Rule Nisi, which a Division Bench of the High Court Division by judgment and order dated 10.3.97 discharged accepting the finding of the Labour Court that the termination in question is in fact a dismissal in the garb of termination simpliciter. Leave was granted to consider whether the complaint case under Section 25 of the Act was maintainable in view of the fact that the service of respondent No. 2 was terminated not for any trade union activity nor was he deprived of any termination benefit under section 19 of the Act. Secondly, upon the finding of the learned Judges of the High Court Division themselves that the IRO Case was incompetent inasmuch as no industrial dispute had been in existence at me relevant time which could enable respondent No. 2 to maintain an action under the IRO the learned Judges were justified in folding that the termination in question was illegal or bad in law. Thirdly, upon acceptance of termination from service respondent No. 2 having received the entire termination benefit by surrendering to the relevant authority his identity card and other papers namely Ext. Cha, Ja, and Jha, the learned Judges of the High Court Division were justified in upholding the finding of the Labour Court that respondent No. 2 was wrongly terminated from service or not.
6. Sayyid Shahid Hussain, learned Advocate appearing for the appellants submits that the finding of the learned Judges of the High Court Division that the termination in question is in fact a dismissal is illegal and unfounded inasmuch as the impugned letter of termination on the face of it does not contain any stigma against respondent No. 2. The learned Advocate further submits that respondent No. 2 upon accepting the order of termination having received the entire termination benefit from his employer the finding of the High Court Division that respondent No. 2 was in fact dismissed for service in the garb of termination is untenable in law. The learned Advocate further submits that inspite of the finding of the learned Judges of the High Court Division that in view of the provision of Section 19 of the Act no complaint case under Section 25 of the Act lies against an order of termination simpliciter, both Courts upon an absolutely wrong view held the termination of respondent No.2 is illegal and malafide. Mr. Korban Ali, learned counsel appearing for respondent No. 2 submits that the receipt of termination benefits having not been legally proved and respondent No. 2 having alleged that by false presentation the relevant authority fabricated certain document showing receipt of termination benefits, the learned Judges of the High Court Division rightly upheld the finding of the Labour Court that the termination in question is in fact a dismissal.
7. Both the Labour Court as well as the High Court Division have held that respondent No. 2 was not entitled to any salary for the period prior to termination of his service on 11.5.89 and that the dispute in question did not come within the definition of 'industrial dispute', within the meaning of IRO. The IRO Case was not at all maintainable. It does not stand to reason why the termination simpliciter passed under Section 19 of the Act can be termed as; malafide order of dismissal in the garb of termination from service.
8. It appears that both the Labour Court a well as the learned Judges of the High Court Division wrongly held the termination in question having been passed during pendency of the I.R.O. Case is malafide, although they themselves held that the IRO case itself was not maintainable. The impugned letter of termination does not contain any stigma upon respondent No.2 and on the face of it is a termination simplicities and is well covered by the provision of section 19 of the Act. The termination was not a sequel to any trade union activity on the part of respondent No. 2 nor does he claim that no termination benefit was given to him.
9. In this view of the matter we find in the appeal. Accordingly, the appeal allowed. Consequently the impugned judgment of the High Court Division as well as that of the Labour Court are set aside and the complaint case stands dismissed. In the facts and circumstances of the case there will be no order as cost.