Chittagong Jute Manufacturing Co. Ltd. Vs. Chairman 1st Labour Court, Chittagong and others, 11 BLC (AD) (2006) 83

Case No: Civil Appeal No. 48 of 1998

Judge: Md. Fazlul Haque,

Court: Appellate Division ,,

Advocate: Mr. A.S.M. Khalequzzaman,Mr. M.A. Mannan,,

Citation: 11 BLC (AD) (2006) 83

Case Year: 2006

Appellant: Chittagong Jute Manufacturing Co. Ltd.

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 2003-1-27

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
KM Hasan J
Mohammad Fazlul Haque J
 
Chittagong Jute Manufacturing Co. Ltd.
……………….Appellant
Vs.
Chairman 1st Labour Court, Chittagong and others
………….........Respondents
 
Judgment
January 27, 2003.
 
Constitution of Bangladesh, 1972
Article 102
Employment of Labour (Standing Orders) Act (VIII of 1965)
Section 17(3)
The impugned judgment is liable to be set aside. Since the respondent No.2 was a worker and served for 15 years in the appellant company, the Appellate Division is inclined to allow him (respondent No.2) to have some benefits and accordingly, allowed the appeal, but with modification, inasmuch as the order of dismissal is converted into an order of termination and the respondent No. 2 shall be given termination benefits as permissible under the law. …. (8-11)
 
Cases Referred To-
Bikash Ranjan Das vs Chairman, 2nd Labour Court, Dhaka and others, 29 DLR (SC) 280 ref; 29 DLR (SC) 280
 
Lawyers Involved:
MA Mannan, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record—For the Appellant.
ASM Khalequzzaman, Advocate-on-Record—For Respondent No. 2.
Ex-parte—For Respondent No. 1.
 
Civil Appeal No. 48 of 1998
(From Judgment and Order dated 12-11-1997 passed by the High Court Division in Writ Petition No.1543 of 1990).
 
JUDGMENT
Mohammad Fazlul Haque J.
 
This appeal by leave is against the judgment and order dated 12-11-1997 passed by the High Court Division in Writ Petition No.1543 of 1990 filed against the judgment and order dated 30th May, 1990 passed by the respondent No.1 in Complaint Case No.124 of 1987 directing the appellant company to re-instate the respondent No. 2 in his service with 10% back wages and attending benefits.
 
2. The respondent No.2 as complainant filed complaint Case No. 124 of 1987 before the 1st Labour Court Chittagong, stating, inter alia, that he was a permanent worker of the appellant company for the last 15 years. He was discharging his duties honestly, efficiently, regularly and to the entire satisfaction of his superiors, having a clear record of service. Suddenly, the appellant by letter dated 15-12-86 brought the false and fabricated charges against him and thereby directed him to submit his explanation thereto within 7 days as to why he shall not be dismissed from service or otherwise why disciplinary action shall not be taken against him. The allegation made in the charge-sheet was of misconduct for making excess payment of Tk. 57,630 to casual assorters causing serious loss to the appellant company. The respondent No.2 submitted explanation denying all the allegations made against him. It was stated that the clerks, supervisor and in charge of the Jute Department were responsible for payments and he being merely a Head Sardar worked according to the instructions of his supervisor officers and he had no clerical work at that time. He was then transferred from Ghat purchase to Katcha assorting shed.
 
3. The authority concerned again served another letter dated 21-1-87 to the respondent No.2 along with 6 other employees of the com­pany for misappropriation of Taka 1, 31,804.65 causing loss to the appellant company consti­tuting the offence under section 17(3) of the Employment of Labour (Standing Orders) Act, 1965 and asked for explanation. The respondent No.2 explained the same, which was treated as not satisfactory. Thereafter, an inquiry commit­tee was formed. The respondent No. 2 appeared before the inquiry committee. His case is that his statement was not properly and correctly recorded and his signature was obtained by force. The inquiry committee was closed with­out cross-examining the employees of the appellant   company and the inquiry was conducted in an unfair manner, yet the respondent No. 2 received the order of dismissal on 9-3-87 dismissing him from his service. The respondent No.2 being aggrieved filed a grievance petition in due time and thereafter, he filed an application before the 1st Labour Court, Chittagong for appropriate remedy.
 
4. The respondent No. 1, the Labour Court, Chittagong, considered the materials on record and after hearing the parties by the judgment and order dated 30-5-90 allowed the complaint case on contest and set aside the order of dismissal dated 9-3-87 and ordered to re-instate the respondent No.2 in his service with 10% back wages and attending benefits within 30 days from the date of the order.
 
5. The appellant company, aggrieved and dissatisfied with the aforesaid order filed the said writ petition and obtained the Rule. The High Court Division after hearing the parties and perusing the records discharged the Rule. In fact, the High Court Division has discussed that "it appears that the Labour Court considered the materials and the inquiry report and found that the delinquent was not given proper opportunity of being heard and that materials on record were not properly considered and, as such, the inquiry committee acted with malafide intention as such, the decision passed by the employer could not be sustained." Furthermore, the High Court Division has held that the Labour Court found that the guilt of the respondent No.2 was not properly fixed, as such, the order of dismissal was liable to be cancelled and accordingly, the Labour Court set aside the order of dismissal and allowed the complaint case. The High Court Division has held that the order complained of appears to have been passed on sound reasonings and, as such, the High Court Division was not inclined to interfere with the impugned order as stated here in above and the rule was discharged without any order as to costs.
 
6. Leave was granted to consider the following submissions.
 
"Mr. MA Mannan, the learned Advocate appearing for the petitioner company,  submits that the allegations brought in the charge-sheet against the respondent No. 2, constituted   misconduct under section 17(3) of the Act and inquiry committee having found respondent No.2 guilty after a fair and proper hearing affording all  opportunities to respondent No. 2 to defend his case, the learned Judges of the  High Court Division acted wrongly in affirming the judgment and order of the Labour Court, when the Labour Court, in fact, sat as a Court of appeal over the inquiry held without any violation of law  and procedure." "The learned Advocate submits that the domestic inquiry was held properly and fairly wherein the witnesses were examined and cross-examined and respondent No.2 signed memorandum of evidence himself and did not raise any objection against the enquiry committee and, as such, the judges of the High Court Division misdirected themselves in holding that the delinquent was not given proper opportunity of being heard and the materials  were not properly considered, and, as such, the enquiry committee acted with a malafide intention whereas the Labour Court did not at all find that no opportunity, was given to respondent No.2 to defend his case before the  inquiry committee.  Lastly, the learned Advocate submits that the learned Judges of the High Court Division misapplied the principle of law decided in the case of Bikash Ranjan Das vs. the Chairman, 2nd Labour Court, Dhaka and others, 29 DLR (SC) 280 which has no manner of application in the facts of the present case."
 
7. The domestic inquiry was held and the respondent No.2 was found to be guilty of the charge for misappropriation of fund which conduct within the meaning of section 17(3) of the Employment of Labour (Standing Orders) Act,1965. We have perused the judgment and order passed by the Labour Court, who has not held that the  respondent No.2 was not given opportunities, to defend himself. In fact, he was given all fair and proper opportunities to defend his case. The High Court Division while affirming the judgment and order of the Labour Court did not, in fact, consider the same. The Labour Court, it appears had sat as a Court of appeal over the domestic inquiry, and the High Court Division has affirmed the judgment and order passed by the Labour Court; there is no denial that the witnesses were not examined in his presence and the respondent No. 2 had signed memorandum of evidence himself and did not raise any objection against the inquiry committee. Therefore, the learned Advocate appearing on behalf of the appellant submits that the High Court Division wrongly held that the respondent No. 2 was not given proper opportunity of being heard and the materials were not properly considered.
This finding of the High Court Division is not factually correct in view of the fact that the Labour Court did not hold that the respondent No. 2 was not given an opportunity of being heard. The Judgment and order passed by the High Court Division appears to be contrary to evidence on record and also contrary to findings of the Labour Court. The Labour Court did not find that no opportunity of being heard was afforded to the respondent No. 2.
 
8. Be that as it may the respondent No. 2 was a Labour Sardar of the appellant company and there was over payment to certain workers. This was never denied by the respondent No. 2, rather the respondent No. 2 stated that the other clerks and supervisors were responsible for this over payment causing misappropriation of fund of the appellant company.
 
9. It appears that the Labour Court did not find that the respondent No.2 was not given opportunity of being heard. All that it said was that the dismissal order was passed without considering the materials on record. The High Court Division affirmed the judgment and order passed by the Labour Court. The respondent No. 2 was charged with making over payments which constitutes misconduct within the meaning of section 17(3) of the Employment of Labour (Standing Orders) Act, 1965; inquiry was held and he was given full opportunity of being heard and the inquiry committee found him (respondent No. 2) guilty of the offence charged with, and he was dismissed from his service. The learned Advocate for appellant has also submitted that the decision reported in 29 DLR (SC) 280 has no manner of application in the present case. We have gone through the said reported case and we find substance in the submission of the learned Advocate for the appellant.
 
10. In that view of the matter, we opinion that the impugned judgment to be set aside.
 
11. Since the respondent No. worker and served for 15 years in the company, we are inclined to allow him (respondent No. 2) dent No. 2) to have some benefits and accordingly, we allow the appeal, but with mo inasmuch as the order of dismissal is into an order of termination and the re No. 2 shall be given termination benefits as permissible under the law.
 
Ed.