Bank of Credit and Commerce (Overseas) Ltd. Vs. Tajul Islam Chowdhury and another, 45 DLR (AD) (1993) 61

Case No: Civil Appeal No. 26 of 1991

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Citation: 45 DLR (AD) (1993) 61

Case Year: 1993

Appellant: Bank of Credit and Commerce (Overseas) Ltd.

Respondent: Tajul Islam Chowdhury and another

Subject: Jurisdiction of a Court, Labour Law,

Delivery Date: 1993-2-23


Supreme Court
Appellate Division
 (Civil)
 
Present:
MH Rahman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
 
Bank of Credit and Commerce (Overseas) Limited now Eastern Bank Ltd.
………….....Appellant
Vs.
Tajul Islam Chowdhury and another
……………..Respondents
 
Judgment
February 23rd, 1993
 
Employment of Labour (Standing Orders) Act (VIII of 1965)
Sections 17(3) and 25(d)
Labour court has the power to convert an order of dismissal into one termination of service in appropriate circumstances.
 
Cases Referred to-
Md. Shohrab Ali Dewan Vs. Chairman, Second Labour Court 1978 BSCR 477 and SN Quddus Vs. Chairman, Labour Court, 33 DLR (AD) 12.
 
Lawyers Involved:
Rafique‑ul Huq, Senior Advocate (Mr. Khalilur Rahman, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record -For the Appellant.
Asrarul Hossain, Senior Advocate (Syed Amirul Islam, Advocate with him), instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Respondent No. 1.
Ex parte- Respondent No. 2.
 
Civil Appeal No. 26 of 1991
(From the Judgment and order of the High Court Division in Writ Petition No. 431 of 1989).
 
JUDGMENT
Mustafa Kamal J.
 
This is respondent -Bank's appeal by leave from the judgment and order of the High Court Division dated 14.2.91 in Writ Petition No. 431 of 1989 making the Rule absolute. The petitioner in the writ petition (respondent No. 1 herein) Tajul Islam Chowdhury, a cashier of the appellant-Bank, Bank of Credit and Commerce (Overseas) Ltd., shortly the BCCI and at the relevant time the General Secretary of the BCCI Employees Union, was dismissed from service on 16.2.88 for misconduct. Upon his filing complaint Case No. 19 of 1988, the First Labour Court, Dhaka held the order of dismissal to be legal but in view of severity of sentence converted it to one of termination from service with termination benefits. In the writ petition the High Court Division held that charge No. 4, held to be proved by the Labour Court, does not fall within the terms of clause (a) or (f) or of any other act of misconduct provided in section 17(3) of the Employment of Labour (Standing Orders) Act, 1965, shortly the Act, and as such declared the Labour Court's order of affirmance of the order of dismissal to have been made without lawful authority and to be of no legal effect. Nothing was said about the Labour Court's order of termination of respondent No. 1 from the service of the bank.
 
2. The appellant-Bank obtained leave from this Court on 27.3.91 against the judgment and order of the High Court Division, but during the pendency of the appeal all commercial activities of the appellant- Bank BCCI were stopped by the Government of Bangladesh with effect from 20.8.91 in exercise of powers under section 77(2) of the Banking Companies Act, 1991. Eastern Bank Ltd. has filed an application for substitution in place of the appellant stating that the BCCI is not now in existence in Bangladesh and that under Notification No. BCD (G) 115(5) -1178 (2) dated 8.8.92 Eastern Bank Ltd. has been established under Certificate of Incorporation No. C‑22554 (961) dated 8.8.92 in pursuance of a scheme of reconstruction by the Bangladesh Bank under section 77(4) of the said Act.
 
3. Mr. Rafique‑ul Huq, learned Counsel for Eastern Bank Ltd, submits on instruction from his client that Eastern Bank Ltd. will be bound by the decision in this appeal as it has submitted to the jurisdiction of this Court by a voluntary substitution.
 
4. Mr. Asrarul Hossain, learned Counsel for respondent No. 1, does not contest the application. The application for substitution is allowed.
 
5. Briefly, the facts are that respondent No. 1 was served with a charge‑sheet dated 31.1.88 containing four charges stating that "the above­mentioned acts committed by you constitute gross misconduct" and asking him to show cause why he should not be dismissed from service or otherwise suitably punished "for the said acts of misconduct".
 
6. The first charge stated that the said respondent obtained casual leave for 5 days from 18.2.86 to 22.2.86. He did not resume his duties on 23.2.86, but on 26.2.86. He submitted an undated letter on the same day for extension of 3 days' leave on flimsy ground and therefore he violated the provision of section 5(2) of the Act. He was cautioned by the Bank's letter dated 11.3.86 to observe the procedure for obtaining leave in future.
 
7. The second charge stated that the said respondent made a practice not to sit in the cash counter being a cashier and used to abstain from his duties quite often causing great inconvenience to customers and loss to the Bank. There was complaint against him to the Bank Management following which he misbehaved with one of the officers of the Bank, abused him in filthy language and created a breach of peace during working hours. He was charged for gross misconduct and an enquiry was held wherein he was found guilty. But without taking extreme action against him the Bank Management warned him by letter dated 4.2.87 not to indulge in such activities in future.
 
8. The third charge was that the said respondent did not rectify his conduct and remained absent from the cashier's desk quite often although he was advised on a number of occasions not to do so.
 
9. The fourth charge was that on 17.1.88 he came to the office at 9.00 AM, initialled the attendance register, left the Bank without any permission of the authority and remained absent throughout the whole day which hampered the normal functioning of the Bank and caused great inconvenience and loss to it. He was advised by letter dated 17.1.88 not to indulge in such activities. He replied on 25. 1.88 on Union pad giving a show of threat and tried to justify his unauthorised activities.
 
10. Respondent No. 1 replied to the show cause notice on 4.2.88. He submitted with regard to the first charge that on getting the Bank's letter dated 11.3.86 he replied on 17.3.86 and thereafter his leave was sanctioned and nothing was mentioned about the grounds for leave and violation of law. He stated that section 5 of the said Act is clear on the subject. With regard to the first part of the second charge he denied the same as being vague and unspecified and with regard to the second part he referred to the show cause notice issued by the Bank on 17.3.86, his reply dated 23.3.86 and the Bank's letter dated 4.2.87 which ended the matter. He specifically denied the third charge and with regard to the fourth charge he stated that these are matters of record and a reply on the Union pad was not intended to show a threat. He used the Union pad as he was absent for the Union's work. He stated that the union has submitted a charter of demands on 9.1.88 whereupon the Management terminated the services of 3 Union officials and 3 active union members and also filed cases. The present action against him is malafide and is intended to victimise him for his trade union activities.
 
11. No formal enquiry was made thereafter. In the impugned order of dismissal dated 16.2.88 it was stated that the said respondent admitted the allegations brought against him and that he has been found guilty of the said charges which constitute misconduct. Accordingly, he was dismissed from service with immediate effect.
 
12. After serving a grievance petition respondent No. 1 filed Complaint Case No. 19 of 1988 before the First Labour Court, Dhaka on 3.3.88 wherein he averred that charge Nos. 1-4 are past and closed transactions and that these also do not amount to misconduct within the meaning of section 17(3) of the said Act. He also averred that charge No. 3 was specifically denied by him and therefore he could not be dismissed without a formal enquiry. He laid stress on his grievance that he was dismissed for his trade union activities.
 
13. The appellant‑Bank in its written statement before the Labour Court justified the order of dismissal.
 
14. The Labour Court found that respondent No. 1 could not adduce any evidence before the Court that he was victimised for his trade union activities. No finding was given on charge Nos. 1-3, but on charge No. 4 it held that respondent No. 1 committed a gross misconduct by leaving his office at 9‑00 AM on 17.1.88 without permission of the authority and remaining absent throughout the whole day. The Labour Court held that the order of dismissal dated 16.2.88 was passed legally but the punishment meted out to him appeared to be severe. Hence, in the interest of justice, the punishment was converted to termination of service with termination benefits.
 
15. Respondent No. 1 filed Writ Petition No, 431 of 1989 against the judgment and order of the Labour Court. Although a Rule Nisi was issued calling upon the respondents to show cause why the impugned judgment and order of the Labour Court shall not be declared to have been passed without lawful authority and to be of no legal effect and as to why the appellant‑Bank should not be directed to re‑instate the said respondent in his former post with all back wages, in making the Rule Nisi absolute the High Court Division declared the order of the Labour Court confirming the order of dismissal to have been passed without lawful authority and to be of no legal effect. No order was passed by the High Court Division declaring the Labour Court's order of termination of service as having been made without any lawful authority. Without disturbing the Labour Court's finding of fact on charge No. 4, the High Court Division held that the allegations therein held to be proved by the Labour Court are not covered by either clause (a) or (f) or any other act of misconduct within the meaning of section 17(3) of the Act.
 
16. Leave was granted to the appellant-Bank to consider its submission that the aforesaid conclusion of the High Court Division is inconsistent with its own finding that a finding of fact arrived at by the Labour Court cannot be disturbed in the writ jurisdiction and that in any case the High Court Division misdirected itself, upon a misconception of both law and fact, in holding the above.
 
17. Mr. Rafique-ul-Huq learned Counsel for the appellant submits that the first three charges are in fact not charges proper but are in the nature of spelling out the 'habitual' character of the respondent's delinquencies. The charge proper is charge No. 4 which was admitted by the respondent himself and therefore there can be no question of any formal enquiry. He submits that the respondent's acts of omission and commission fall within the definition of misconduct contained in section 17(3) (a), (d), (f) and (g). He also submits that the omission and acts enumerated in section 17(3) are not exhaustive but illustrative. The respondent being a cashier of a Bank it is an implied term of his contract of employment that he should be present in the cash all the time except on permission and that leaving the place of work throughout the whole day without any permission ii(n the authority is wilful disobedience to a lawful order of a superior and an act subversive of discipline. He relies upon the case of State of Punjab Vs. Ram Sing, AIR 1992 (SC) 2188 in support of his submission.
 
18. Mr. Asrarul Hossain submits, on the other hand, that charge Nos. 1, 2 and 4 are past and closed transactions and misconduct once condoned cannot be revived. These charges additionally do not amount to misconduct. Charge No. 3 was vague and indefinite and it was specifically denied and hence no action could be taken against the respondent without a formal enquiry. He disputes the appellant's contention that charges 1‑3 are in the nature of illustrations of the "habitual" character of the respondents delinquencies. The charge sheet and the order of dismissal both referred to the "charges" and in the order of dismissal the respondent was found guilty of all the charges, not just charge No. 4. He also submits that both the Labour Court and the High Court Division failed to notice that charge Nos. 1, 2 and 4 are all past and closed transactions and that misconduct once condoned cannot be revived.
 
19. We take the last point of Mr. Asrarul Hossain first. Halsbury's Laws of England, 3rd Edition, Volume 25, paragraph 940 states as follows:
 
"940. Condonation: justification for dismissal a question of fact. A master who, with full knowledge of a servant's misconduct, elects to continue him in his service, cannot subsequently dismiss him for the offence which he has condoned."
 
It was held in the case of LW Middleton Vs. Harry Playfair, AIR 1925 Cal. 87 that if a master on discovering that his servant has been guilty of misconduct which would justify a dismissal, yet elects to continue him in his service, he cannot at any subsequent time dismiss him on account of that which he has waived or condoned.
 
20. Mr. Asrarul Hossain has drawn our attention, with regard to the first charge, to the letter dated 11.3.86 (mentioned in the charge‑sheet) written by the appellant-Bank to the respondent sanctioning an extension of 3 days' leave without mentioning that the extension was asked for by the respondent on flimsy grounds and stating that in future the respondent must obtain prior approval. He also draws our attention to section 5(3) of the Act and submits that remaining absent beyond the period of leave originally granted is attended with loss of lien to the worker's appointment unless he returns within 10 days of the expiry of his leave and explains to the satisfaction of the employer his inability to return earlier. This is by no means an instance of habitual absence without leave. It is a past and closed transaction, he submits. With regard to charge No. 2 he submits that it was totally wrong to say that the respondent was charged for gross misconduct and that an enquiry was held wherein he was found guilty. He draws our attention to the letter of the appellant‑Bank dated 4.2.87 referred to in the charge‑sheet itself. It is stated therein that the Management had decided not to pursue the matter in consideration of extenuating circumstances and hoped that the respondent will be careful in future so that there will be no occasion for the Management to initiate any action in future on similar matters. This is also a past and closed transaction. With regard to charge No. 4 Mr. Asrarul Hossain refers to the appellant-Bank’s letter dated 17.1.88 referred to in the charge‑sheet. In this letter the Management took exception to the respondent's leaving the Bank without any permission and remaining absent throughout the whole day, stating that "this is highly irregular and unbecoming of a cashier". "You are therefore advised not to indulge in such irregular practice". Mr. Hossain submits that the respondent did not absent himself from the cashier's desk after he received this letter dated 17.1.88 and therefore charge No. 4 was also a past and closed transaction.
 
21. It appears to us that there is much substance in Mr. Asrarul Hossain's contention. The Labour Court did not give any finding on the first three charges and satisfied itself by holding that the respondent was rightly found guilty of the fourth charge, without adverting to the respondent's contention that this was also a past and closed transaction.
 
22. Mr. Rafique‑ul Huq is correct in his submission that past instances of misconduct can be cited in the charge‑sheet to show a habitual pattern of behaviour but if the charge which is the culmination of past habits is itself a past and closed affair then all the charges taken together become a mere parade of past misdeeds. They are not a current offence, but a catalogue of past events, The Labour Court completely lost sight of this fact and the High Court Division failed to apply its mind to this aspect of the case.
 
23. As such the question whether the charges constitute misconduct within the stated or extended meaning of section 17(3) of the Act now relegates into insignificance. The plain fact is that there were no charges proper levelled against the respondent.
 
24. Mr. Rafique‑ul Huq however submits that this Court has consistently held that a Labour Court has the power under section 25(d) of the Act to convert an order of dismissal passed by the employer into an order of termination of service in appropriate circumstances (vide in the case of Md. Shohrab AU Dewan Vs. Chairman, Second Labour Court, 1978 BSCR 477, and SN Quddus Vs. Chairman, Labour Court, 33 DLR (AD) 12), and that the High Court Division will not normally interfere with the exercise of such discretion by the Labour Court. The High Court Division must have been and shall be presumed to be conversant with the decisions of this Court and therefore advisedly it did not interfere with the discretionary order of termination of service of the respondent while making the rule absolute.
 
25. We have earlier noticed the contents of the Rule Nisi and the terms in which the Rule Nisi were made absolute. It is obvious that the order of termination of service passed by the Labour Court remains unaffected by the judgment and order of the High Court Division, as the Rule Nisi was made absolute in narrower terms and the prayer for re‑instatement was not acceded to.
 
26. Hence although the order of dismissal found to be bad and illegal on a ground different from that held by the High Court Division the Labour Court's order terminating the service of respondent No. 1 stands unaffected.
 
In the result the appeal is dismissed but without any order as to costs. The order of the Labour Court ‑termination of service of respondent No. 1‑will remain unaffected.
 
Ed.