Case No: Civil Appeal No. 66 of 1990
Judge: MH Rahman ,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,Mr. Md. Khalilur Rahman,,
Citation: 46 DLR (AD) (1994) 182
Case Year: 1994
Appellant: Chittagong Chemical Complex
Respondent: Chairman, Labour Court
Subject: Ex-parte Decree, Labour Law,
Delivery Date: 1993-11-30
Shahabuddin Ahmed, CJ.
MH Rahman, J.
ATM Afzal, J.
Mustafa Kamal, J.
Latifur Rahman J.
Chittagong Chemical Complex
The Chairman, Labour Court and another
November 30th, 1993.
Constitution of Bangladesh, 1972
Before passing a judgment ex parte the Labour Court ought to have examined the employee’s papers to see whether his case was proved. The judgment having not shown this irreducible minimum of care is declared to have been passed without lawful authority. …. (4&8)
Khalilur Rahman, Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellant.
Md. Aftab Hossain, Advocate-on-Record-For the Respondent No. 2.
Not represented- The Respondent No. 1.
Civil Appeal No. 66 of 1990.
This Appeal, at the instance of the Chittagong Chemical Complex, the employer, is directed against an order of the High Court Division summarily rejecting Writ Petition No. 118 of 1989 and refusing to interfere with the ex parte judgment and order of the Labour Court, Chittagong, passed in Complaint Case No. 193 of 1986, re-instating Respondent No. 2 in service.
2. Respondent No. 2, a Senior Accounts Clerk under the appellant, was dismissed from service on the ground of misconduct. He challenged the order of dismissal before the Labour Court, Chittagong, by a Complaint Petition, Case No. 193 of 1986, on the grounds that no proper enquiry was held and no opportunity was given him to defend himself. The Appellant filed a written objection stating that the worker had been convicted of a criminal offence by a Court and, as such, no show cause notice or enquiry for his dismissal was required; however, in his case, all opportunities were given to him for defending himself. On the date of hearing, April 27, 1988, the employer was absent and the Labour Court allowed the Complaint case ex parte, set aside the order of dismissal and ordered reinstatement with back wages. The appellant filed an application under Order 9, rule 13 of the Civil Procedure Code for setting aside the ex parte order, but this application was also dismissed for default. Thereafter, the appellant filed the Writ Petition contending, inter alia, that when conviction of the worker by a court was the ground for his dismissal and when this fact was known to the Labour Court, the latter seriously erred in law in reinstating the worker in service.
3. While dismissing the Writ Petition summarily, the learned Judges of the High Court Division observed:
"It is true that a worker, convicted in a criminal case for an offence, may be dismissed without prior notice as provided in section 17(1) (a) of the Employment of Labour (Standing Orders) Act, but unless the matter is pressed before the Labour Court, it may not consider thee case of the second party in ex parte proceedings. It appears from the impugned order that in the absence of Second Party‑Petitioner, the Labour Court took up the case for hearing ex parte and after hearing the First Party and after perusing the papers produced by him, found that the case of the First Party was proved and accordingly gave the impugned decision. Even if some materials are not considered by the Labour Court, it may be an illegality or irregularity but it cannot be a ground for interfering with the decision under Article 102 of the Constitution as it cannot be said to have been done without lawful authority".
4. The above views of the High Court Division cannot be sustained. Before passing a judgment ex parte, in absence of the Second Party, the employer, the Labour Court ought to have examined at least the employee's papers to see whether the case was proved. This is the irreducible minimum of care an adjudicating body is required to take before deciding any matter.
5. The appellant contends that from a mere perusal of the employee's papers particularly Ext. 7, Ext. 1(Ka) and Ext. 4, produced before it, the Labour Court would have found that the employee had no case.
6. The three exhibits before the Labour Court were annexed to the appellant's Writ Petition and marked as Annexures C, D and F respectively. Ext. 7, the judgment dated August 13, 1984, of the Divisional Judge, Chittagong, in Special Case No. 233 of 1984 shows, that the employee was acquitted of the charge under section 409 of the Penal Code, but he was convicted under section 5(2) of Act II of 1947 and sentenced to a fine of Taka 500.00, in default, to suffer rigorous imprisonment for one month. Ext. 1 (Ka) is the employer's show cause, for the second time, of September 13, 1984, asking the employee to explain how his service could be retained after his conviction. Ext. 4 is the order of dismissal, dated October 20, 1986, which again referred to the employee's conviction in the above noted case.
7. In view of the employee's own papers and particularly, after noting the provisions of law in section 17(1)(a) of the Employment of Labour (Standing Orders) Act, 1965, the learned Judges of the High Court Division ought to have struck down the judgment of the Labour Court for non consideration of the evidence on record.
8. In the result, the Appeal is allowed. The judgment and order dated February 27, 1988, of the Labour Court, Chittagong, passed in Complaint Case No. 193 of 1986, is declared to have been passed without any lawful authority and it is of no legal effect. No costs.