Judge: Kemaluddin Hossain,
Court: Appellate Division ,,
Citation: 28 DLR (AD) (1976) 190
Case Year: 1976
Appellant: Bangladesh Tea Estate Ltd.
Respondent: Bangladesh Tea Estate Staff Association
Subject: Labour Law,
Delivery Date: 1976-5-17
Syed A. B. Mahmud Hussain, CJ.
Ahsanuddin Chowdhury, J.
Kemaluddin Hossain, J.
Debesh Chandra Bhattacharya, J.
Fazle Munim, J.
Bangladesh Tea Estate Ltd.
Bangladesh Tea Estate Staff Association
May 17, 1976.
Trade Unions Act (XVI of 1926)
Officer of recognized Trade Union are entitled to negotiate with employer on matters of employment, etc. and as such he is an officer within the meaning of section 35.
Cases referred to:
Aminul Islam Vs. James Finlay Co. Ltd., 26 D.L.R. (S.C.) 33; Khulna News Print Mills Vs. Khulna News Print Employees Union, 25 D.L.R. (S.C.) 85; Pakistan Tobacco Company Ltd. Vs. Pakistan Tobacco Company Employees Union Dacca 13 DLR (S.C.) 280 PLD 1961 (S.C.) 403.
T. Islam, Advocate, instructed by Zinnur Ahmed, Advocate-on-Record.—For the Appellant.
Mozammel Huq Sr. Advocate, instructed by A. W. Mallik, Advocate-on-Record.—For the Respondent.
Civil Appeal No. 22 of 1973.
(From the judgment and order dated 2-4-1970 passed by the Dacca High Court in F.M-A. No. 131 of 1968)
This is an appeal by special leave at the instance of the Second Party appellant against the judgment of a Division Bench of the Dacca High Court in First Miscellaneous Appeal No. 131 of 1968 dismissing the appeal filed by the appellant sustaining the order of the Second Labour Court, Chittagong.
2. The facts are, that the Appellant, a company holding tea estate in the Chittagong district, employed Nurul Absar Chowdhury a clerk, Grade III from 1st June, 1964. He was subsequently promoted to Grade II, Garden clerk on 3-7-67. The appellant by a letter terminated the service of Nurul Absar under section 19 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 hereinafter called the "Standing Orders Act" offering him his legal dues. The employee instead of receiving his dues raised a labour dispute through the Union under East Pakistan Labour Dispute Act, 1965, hereinafter called the "Labour Dispute Act". The Union (East Pakistan) Tea Estate Staff Association, is the Respondent, The principle contention of the respondent was that Nurul Absar was an active member of the Union and was its Unit Representative of the Chittagong Circle, and that he took active part in the union matters, and so the employer victimised him for his trade union activities.
3. The appellant's contest centred round the maintainability of the case and the jurisdiction of the Labour Court on the ground that Nurul Absar was not a 'worker' within the meaning of section 2(m) of the Labour Dispute Act. It was also contended that the termination was under section 19 of the Standing Orders Act, which gives the employer right to terminate the service of their worker without assigning any reason. The allegation of victimization was denied. The appellant also denied that Nurul Absar was a unit representative. At the trial the respondent union examined 3 witnesses and the appellant one, the Manager of the company. The Labour Court on consideration of evidence held that the termination of service of Nurul Absar was malafide, a case of victimization for his trade union activities arid accordingly made an award directing his reinstatement with back wages. Nurul Absar was found to be a unit representative of the Union.
4. On appeal by the employer Company, the High Court of East Pakistan made an elaborate discussion of evidence and the pleadings of the parties and found that Nurul Absar was unit representative and he participated in presenting the grievances of his co-workers before the management. It was further held that because of his participation in trade union activities, the order of termination was passed by the management in disapproval of such activities. The High Court concurred with the Labour Court in holding that Nurul Absar was victimized for his trade union activities, on the jurisdiction of Labour Court. It was held that labour dispute as denned in section 2(k) of Labour Dispute Act, 1965, is broad enough to include a dispute concerning the employment or non-employment of worker whose service has been terminated under section 19 of the Standing Orders Act. It was also held that "Nurul Absar as a unit representative was an officer of the Union. Upon these findings the appeal was dismissed.
5. The Company obtained leave from Supreme Court of Pakistan to consider three questions. First, Nurul Absar was only a unit representative, and not an executive member of the Union as evidenced by Ext. A., and so could not be termed an officer of the Union. Secondly, Nurul Absar, whose service was terminated under section 19 of the Standing Orders Act, could not be said to be a worker under section 2(s) of the Labour Dispute Act and so he could not raise a labour dispute as defined in section 2(k) under section 6 of the Act. Thirdly, the dispute as to the termination of Nurul Absar's service under section 19 of Standing Orders Act should only be decided under section 25 of the said Act and so no case under section 6 of the Labour Dispute Act was maintainable. Mr. Islam for the appellant company and Mr. Mozammel Huq for the Respondent Union have argued three points and in addition raised many other points and facts at great length. We, however, confine our decision to the three points contained in the leave order.
6. The first point is whether Nurul Absar as a unit representative and not an executive member of the union, could be an officer of the union. It may be stated that from the evidence it is apparent that his name does not appear in Ext. A. where the names of the Executive Committee and other members of the union are there. It is to be remembered that the Company conceded before the Supreme Court of Pakistan at the time of praying for leave that he was a unit representative. The findings of the Court below are there to that effect. Before dealing with the question of law, we must observe that the finding of the High Court is that Nurul Absar was a unit representative, and he participated in presenting the grievances of his co-workers before the management. It is to be mentioned that the constitution of the Union was not exhibited by either party before the Labour Court. We are to see whether the High Court upon these findings was well founded in law in holding Nurul Absar an officer of the Union.
7. We refer to the definition of 'Officer' as defined in section 2(h) of the Trade Union Act, 1965 along with section 35 which confers the right on the recognised trade union. The definition clause gives an inclusive definition to say that an 'officer' in the case of a trade union includes any member of the executive, but does not include auditor. It is to be noted that what constitutes 'executive' has not been defined. The evidence again on record docs not show that Nurul Absar is a member of the Executive Committee. There is also no evidence, as observed earlier, on record of the constitution of the union. Therefore, though we get a partial picture of the status of the employee that he is a unit representative, but we do not get a complete picture as to whether he is one of the executive, so that he may be called an officer of the Union. We are to see whether the High Court on the evidence before it made a correct assessment of the status of the employee.
8. The High Court has gone on the basis of the activities of the employee as are on record. We are to see whether these activities could be attributed to an officer of the Union. If we refer to the Trade Union Act to see the rights of recognised trade union, we find that officer of a recognised trade union, are entitled to negotiate with the employer in respect of matter connected with employment, the terms of employment, the condition of work of any of the workers employed in the establishment or industry. Turning to the finding of the High Court, we get that Nurul Absar participated in presenting grievances of his coworkers before the management. His activities clearly come within section 35 of the Trade Union Act, and they are trade union activities. From this finding which is based on evidence, the High Court was justified in holding that Nurul Absar was an officer of the Union.
9. Mr. Islam for the appellant has tried to challenge the finding of fact of the High Court about the activities of Nurul Absar. No leave has been granted to allow him to show otherwise. This is a finding of fact and cannot be challenged in this Division, Finding the impediment. Mr. Islam has tried to take recourse to the definition clause in section 2(h) of the Trade Union Act, to submit that Nurul Absar is not a member of the Executive Committee and therefore, not a member of the executive. He wants to say that his activities though referable to union activities under section 35 of the Trade Union Act, were unauthorised. We have already observed that the finding of the High Court is not open to challenge. The finding also cannot be said contrary to law as the definition clause does not limit the standing of an officer of the union to the members of Executive Committee only. The definition clause infact has not given any meaning as to who is a member of executive of the union so as to-be its officer. The definition is an inclusive definition and so it is not exhaustive. We have already observed that constitution of the union was not put in evidence before the Court by any one of the contending parties. That being the position the finding of fact of the High Court must prevail.
10. On the second point, that the terminated worker is not a worker within the definition of section 2(s) of the Labour Dispute Act and so he cannot raise labour dispute under the said Act, it must be said that Mr. Islam's contention in this regard is misconceived. He has relied on the case of Aminul Islam Vs. James Finlay Co. Ltd., 26 D.L.R. (S.C.) 33 and the case of Khulna News Print Mills Vs. Khulna News Print Employees Union, 25 D.L.R. (S.C.) 85. They will be considered presently.
11. Mr. Islam wanted to submit that Nurul Absar being a terminated worker under section 19 of the Standing Orders Act, no labour dispute can arise relating to his termination. We may test this contention by referring to thedefinition of 'labour dispute' which is as follows:
"Labour dispute, means any dispute or difference between employers and employers or between employers and workers or between workers and workers which is connected with the employment or non-employment or terms of employment or with the conditions of work of any person,"
12. If we look at the definition to see who can raise a labour dispute we find that an individual Worker has no standing. It is the workers collectively who have standing to raise a labour dispute. In this view of the matter, the question whether Nurul Absar is a worker or not loses its 'importance because no individual worker has any standing to raise a labour dispute. But if we turn to the subject matter of the dispute as given in the definition, we find that employment or non-employment or terms of employment or condition of work of any person' could be the subject matter of labour dispute. The subject matter is not limited to workers collectively or to worker as such. It says that the dispute may concern any person. The controversy between the parties has centred round the expression 'any person'. Mr. Islam, contends that 'any person' must refer to a worker as defined in Labour Dispute Act and further 'says since terminated worker is not included in the definition of the Labour Dispute Act, he is not a worker for labour dispute as well. We find it difficult to change the language so drastically or to restrict the meaning artificially. It is true, the expression 'any person' is very wide, but it does not appear to have been used in an unqualified sense. 'Any person' must be construed in the context of the words in the definition clause. In the dispute, there must therefore be a direct relation between the person and his employment or non-employment or condition of work. Similarly the persons raising the dispute must be workers having some interest in the dispute. A combination of them in the totality will constitute 'Labour dispute'. The meaning that naturally flows from the definition does not support Mr. Islam's contention. The terminated worker obviously is a person in whose employment or non-employment the workers have some interest. The termination of service may lead to a dispute between the employer and the workers, and may in certain circumstances be a labour dispute. For example, the termination be a cloak to victimize a worker who is an officer of a registered trade union for his trade union activities. The interpretation given by us, it appears, has been so construed by the Supreme Court of Pakistan in Pakistan Tobacco Company Ltd. Vs. Pakistan Tobacco Company Employees Union Dacca 13 DLR (S.C.) 280 PLD 1961 (S.C.) 403.
13. We now turn to the two cases relied on by Mr. Islam. He says in Khulna News Print Mills Ltd. and the case of Aminul Islam cited above, there is authority for the proposition that there cannot be a labour dispute raised for adjudication concerning an employee whose service has been terminated under section 19 of the Standing Orders Act. Mr. Huq in reply submits that an analysis of decisions, does not support the contention of Mr. Islam. We find in Khulna News Print Mills Case, the worker's service was terminated under Rule 12(1) of Model Standing Orders Rules 1946. Apart from the fact that there are verbal changes in the corresponding provisions of the two sets of the Rules, it appears that the worker Nurul Gani, was proceeded against for assaulting a Foreman after suspending him. However, on cause being shown the order of suspension was cancelled and he was allowed to join his duties on 7-3-63 but on the following day, that is, on 8-3-63 his services were terminated, allowing him to draw 15 days salary in lieu of notice. It was held that it was a case of termination and no cause for labour dispute.
14. In the case of Amirul Islam, it appears that he was Head Clerk-cum-Accountant under James Finlay Company Limited at Khulna. His service was terminated allowing him wages in lieu of 90 days notice. The company preferred to pay his wages for that period in addition to compensation at the rate of 14 days wages for every completed year of service or part thereof in excess of six months. It was asserted that the termination was for trade union activities of the workers and that it was a case of victimization. The Labour Court upheld the contention of the worker. On the appeal before the High Court no opinion was expressed on merits as the case was remanded to the Labour Court since the opinion of a member was not obtained. On further appeal to the Appellate Division, it was held on fact that the worker's service was terminated without any charge or stigma and it was termination simpliciter. A clear observation was made that the question of victimization on account of his trade union activities did not hold good on the examination of the impugned order.
15. The ratio decidendi of the two cited decisions appear to be that the employer has a right to terminate the service of a worker under section 19 of the Standing Orders Act without disclosing any cause and that the Court should not go behind an order of termination simpliciter to find out whether the order was malafide or not.
16. There is however an exception to this proposition contained in section 19 itself when read with section 25. It says that if the purported termination is in reality victimization of an officer of a registered Trade Union for his trade union activities, the Court can go behind the order to see the real purpose of termination and grant such relief as it thinks fit. The two propositions should be read together in order to arrive at the true import of section 19 of the Standing Orders Act. The present case, it appears, comes within the exception clause of section 19 of the Act.
17. We now revert to the definition of labour dispute in Labour Dispute Act. Labour dispute in section 2(k) of the Act is broad enough to include a dispute of a terminated worker under section 19 of the Standing Orders Act, if the dispute centres round the victimization of the worker for his trade union activities. It is to be remembered that section 25 of the Standing Orders Act has clearly provided that an. individual worker can claim relief before the Labour Court under the said Act, unless the grievance has been raised as a labour dispute under Labour Dispute Act. Though section 25 bars all complaints against the order of termination under section 19 of the said Act, yet it, authorises the worker to claim relief if the termination is of an officer of the registered trade union for his trade union activities or the worker is deprived of the benefits under section 19. The two acts are in pari materia and the provision in section 25 indicates that if the termination of a worker is for his trade union activities and if he is an officer of a registered trade union, he cannot only individually ask for relief, but such dispute may be raised as labour dispute and in such event, it could be treated as labour dispute under the Labour Dispute Act. No further elucidation is called for.
18. We now turn to the third question of the leave order. This question has partly been answered in the second question. Mr. Islam's contention is that the dispute of the present nature has been specifically dealt with in section 25 of the Standing Orders Act and therefore it could not be maintainable as labour dispute under the Labour Disputes Act. The contention is devoid of any substance. Clause (b) of sub-section (1) of Sec. 25 of the Standing Orders Act clearly provides that an individual worker can come to Labour Court for relief in respect of a grievance in any matter covered by the said Act, unless the grievance has already been raised and otherwise taken cognizance of as labour dispute. The section contemplates that what could be a grievance of an individual worker under this Act may in appropriate occasion be the cause of labour dispute under the Labour Disputes Act. When a labour dispute has been raised and taken cognizance of by the Labour Court this is to be adhered to. The express language of section 25 is against the contention of Mr. Islam, and we do not think it worth while to dwell on the subject any further. For the reasons this appeal is dismissed, but having regard to the facts and circumstances of the case and the question involved, we make no order as to costs.