Ayesha Salahuddin Vs. Chairman, Second Labour Court and another, 32 DLR (AD) (1980) 68

Case No: Civil Appeal No. 71 of 1979

Judge: K.M. Subhan,

Court: Appellate Division ,,

Advocate: Mr. Ahmed Sobhan,,

Citation: 32 DLR (AD) (1980) 68

Case Year: 1980

Appellant: Ayesha Salahuddin

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 1979-11-19

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ
Ruhul Islam, J
K.M. Subhan, J
 
Ayesha Salahuddin
....................................... Appellant.
Vs.
Chairman, Second Labour Court and another
……………….............. Respondents
 
Judgment
Nov. 19, 1979.
 
The Constitution of Bangladesh, 1972
Article 102
The labour Tribunal is competent to arrive at a conclusion on the subject matter of the case on the basis of the evidence on record but in absence of findings of the Labour Tribunal to that effect the High Court Division cannot substitute its findings for those of the Tribunal in exercise of Writ jurisdiction.
 
Lawyers Involved:
Ahmed Sobhan, Senior Advocate, instructed by Aminul Huq, Advocate-on-Record—For the Appellant.
Nazmul Huda, Advocate, instructed by Mozammel Huq Khan, Advocate—For Respon­dent No. 2.
Ex-parte—For Respondent No. 1.
 
Civil Appeal No. 71 of 1979.
(From the Judgment dated July 28th. 1977 passed by the High Court passed in Writ Petition No. 68 of 1975).
 
JUDGMENT
K. M. Subhan, J.
 
This appeal is from the judgment of the High Court Division, passed in a Writ Petition filed by the appel­lant under Article 102 of the Constitution, challenging legality of the judgment passed by the Second Labour Court of Dacca.
 
2. The appellant was a stewardess of Hotel Inter-Continental, Dacca and was elected as the Assistant General Secretary of the Sramik Union of the said Hotel. She was verbally suspended by the Management and subsequently she was given a show cause notice with the charge of stealing Tk. 123,00 from a hotel room occupied by a foreign guest. The Enquiry Committee set up by the Management found her guilty of the charge and recommended for her dismissal. She was dismissed from the service with effect from 7.4.76.
 
3. The appellant filed a grievance petition on 19.4.76 under section 25 (1) (b) of the Employment of Labour (Standing  Orders) Act 1965 to the Management which having been rejected a complaint was filed before the Second Labour Court under the Employment of Labour (Standing Orders) Act 1965.
The Labour Court dismissed the complaint case by a judgment which was challenged under Article 102 of the Constitution.
 
4. The High Court Division on consider­ation of the judgment of the Labour   Court and also the petition and the affidavits filed before it set aside the judgment of the Labour Court holding that the domestic enquiry was neither held properly nor bonafide and the enquiry report was a perverse one, being not based on any evidence. The High Court fur­ther found that the order of dismissal was not warranted in the facts of the case and the order of the Labour Court was set aside. The High Court Division, however, converted the order of dismissal to an order of termin­ation simpliciter on the ground that "the petitioner was not a desirable person to be retained in the service, accordingly, she can not be trust upon the unwilling master".
 
5. Leave was granted to consider "whether High Court in exercising its power under Article 102 of the Constitution acted within its jurisdiction and power to order for ter­mination simpliciter after setting aside the order of dismissal of the petitioner, making out a third   case which is the exclusive jurisdic­tion of the Labour Court".
 
6. The facts leading to the dismissal of the appellant reveal that the only charge against her was one of stealing a certain sum of money from the hotel room occupied by a foreign guest. The High Court Division on examination of the record brought before it, clearly found that the domestic enquiry was a perverse one and because the Enqu­iry Officer did not examine (1) the Security Officer who lodged the complaint of theft to the Management, (2) the guest concerned (3) the Enquiry Officer did not know if there was any written complaint by the guest concerned. The Enquiry Officer deposed that the supervisor who appeared before the Enquiry Officer as a witness for the Management said that the guest concerned reported that there was no theft. On the basis of this the High Court Division found that there was no reason for the Enquiry Officer to recom­mend dismissal.
 
7. Mr. Nazmul Huda, the learned Coun­sel appearing for the respondent Management, failed to point out any materials on the record which warrant the High Court Division’s conclusion that the appellant was an undesirable person to be trust upon the unwilling employer. There being no materials the conclusion of the High Court Division that the appellant was an undesirable emplo­yee is unwarranted. On the basis of this conclusion the High Court Division converted the Order of dismissal into an order of termi­nation simpliciter.
 
The High Court Division's jurisdiction was invoked under Article 102 of the Consti­tution and the order was passed in exercise of its jurisdiction under Art. 102.
 
8. The High Court Division concluded that the findings of the Enquiry Officer was perverse and was not based on evidence.  It is needless to point out that the jurisdiction exercised by the High Court Division under Art. 102 is not the appellate jurisdiction. The High Court Division concluded that the finding of the Enquiry Officer was not sup­ported by evidence.
 
9. The High Court Division found that the Labour Tribunal's findings are not sup­ported by evidence and the High Court is justified in setting aside the finding of the Labour Court. What, however, the  High Court did was to convert the order of dis­missal to an order of termination simpli­citer on the ground of the appellant's being undesirable. It has already been mentioned that there was total absence of facts where-from the conclusion of undesirability could be drawn. It was open to the Labour Tribu­nal to arrive at such conclusion on the basis of evidence on record and a case made out to that effect but in the absence of such fin­ding by the Labour Tribunal the High Court Division could not substitute its finding for that of the Labour Tribunal in exercise of its writ jurisdiction. The jurisdiction in the nature of certiorari is exercised by the High Court Division to issue such writs where the subordinate Tribunals act wholly without juri­sdiction or in the excess of it or in. violation of the principles of natural justice or refuse to exercise jurisdiction vested in them or where there is an error apparent on the face of the record. 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.
 
Accordingly the appeal is allowed with costs and the judgment of the High Court Divi­sion setting aside the judgment of the Labour Tribunal is upheld, but the order of the High Court converting the order of dismissal to an order of termination simpliciter is set aside.
 
Ed.