Case No: Civil Appeal No. 101-D of 1968
Judge: Muhammad Abdullah Jabir,
Court: Appellate Division ,,
Advocate: Mr. Asrarul Hossain,Humayun Kabir Chowdhury,,
Citation: 25 DLR (SC) (1973) 85
Case Year: 1973
Appellant: Khulna Newsprint Mills Ltd.
Respondent: Khulna Newsprint Employees Union
Subject: Labour Law,
Delivery Date: 1972-12-15
A.M. Sayem, CJ.
A.B. Mahmud Hussain, J.
M. A. Jabir, J.
Khulna Newsprint Mills Ltd.
Khulna Newsprint Employees Union
December 15, 1972.
The Industrial and Commercial Employment (Standing Orders) Ordinance, 1969
Under clause 12(1) of the Standing Order the employer is empowered to terminate the employment of a permanent worker by giving him notice or pay in lieu thereof and without giving him any opportunity to show cause against the proposed termination .............(14)
Cases Referred to-
Karnafully Paper Mills Limited Vs. Karnafully Paper Mills Workers Union, (1961) 13 DLR (SC) 160; Secretary, EPIDC Vs. Md. Serajul Haque 22 DLR) SC) 284; Glaxo Laboratory (Pak) Ltd. Karachi Vs. Pakistan, 14 DLR (SC) 17.
Asrarul Husain, Senior Advocate, M. Zahir, Advocate with him, instructed by Aminul Haq, Attorney—For the Appellant.
Humayun Kabir Chowdhury, Advocate, instructed by S.S. Huda, Attorney—For the Respondent.
Civil Appeal No. 101-D of 1968
On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 17th January, 1968 in Appeal from Original Order No. 60 of 1964.)
This appeal by special leave was filed by Khulna News Print Mills Limited whose appeal, against the award of the Chairman of the Industrial Court of the then East Pakistan in favour of Khulna News Print Employees Union declaring the order of termination of services of a workman—Nurul Gani—to be wrongful and unfair, was dismissed by the High Court.
2. Briefly the facts of the case are that the aforesaid Nurul Gani, who was employed as a workman in the Khulna News Print Mills Limited, was charge-sheeted and suspended on 28-2-63 under clause 13(3) of the Standing Orders in the Schedule of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1960 (hereinafter referred to as "the Ordinance") for assaulting a Foreman and 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 by a letter which was to the following effect :—
"Your services are no longer required with effect from 8-3-63. You may draw 15 days' salary in lieu of notice.''
3. Conciliation having failed, the dispute was referred by the Khulna News Print Employees Union to the Industrial Court which in its award published in the Gazette on 24-2-64 ordered the reinstatement of Nurul Gani after holding that as his services were terminated without assigning any cause the order was wrongful and unfair, for, in the opinion of the Court, the employer had no such prerogative under clause 12 of the Standing Orders.
4. The appellant preferred an appeal, before the High Court which dismissed the same after holding the impugned order to be malafide. Special Leave to appeal was granted to consider whether clause 12(1) of the Ordinance confers a prerogative on the employer to terminate the services of an employee on giving requisite notice or pay in lieu thereof and to consider if the decision in the case of Karnaphuly Paper Mills Limited Vs. Karnaphuly Paper Mills Workers' Union and others reported in (1961) 13 DLR (SC) 160—P.L.D. 1961 (S.C.) 329, lent support to the contention of the appellant.
5. Mr. Asrarul Hossain appearing for the appellant challenged the findings of the Industrial Court and the High Court and contended that the employer is entitled to dispense with the services of a permanent workman under clause 12(1) of the Standing Orders of the Ordinance, without finding him guilty of misconduct under clause 13 thereof, even though an enquiry was held against him for misconduct and the charge could not be proved. He tried to support his contention in this behalf by reference to the decisions of the Supreme Court not only in the case of Karnaphuly Paper Mills Limited Vs. Karnaphuly Paper Mills Workers' Union and others, but in the case of Secretary, E.P.I.D.C. Vs. Md. Serajul Haque reported in 22 D.L.R. (S.C.) 284. The contentions of Mr. Humayun Kabir Chowdhury, who appeared for the respondent, will appear from the judgment.
6. The question that arises for consideration is whether clause 12(1) of the Standing Orders of the Ordinance empowers the employer to terminate the employment of a permanent workman on giving him requisite notice or pay in lieu thereof. The said clause is as follows:—
7. According to section 3 of the Ordinance in every Industrial or Commercial establishment conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders. The provision of clause 12(1) of the Standing Orders is accordingly one of the conditions of employment of a permanent workman. It is, therefore, evident that according to the condition of employment of a permanent workman, as laid down in the Statute itself his services can be terminated by the employer by giving him requisite notice or pay in lieu thereof.
8. Mr. Humayun Kabir Chowdhury contended that the word ''termination" is clause 12(1) is referable to clause 11(3) and that the power of the employer to terminate the employment of a permanent workman under clause 12(1) is available only in cases where workmen have to be laid off for an indefinitely long period necessitating the termination of their services under clause 11(3) and that the services of a permanent workman cannot be terminated otherwise, except by way of penalty for misconduct. These contentions do not appear to be tenable. Clause 11(3) is as follows:—
9. It is, no doubt, true that under clause 11(3) above the services of a permanent workman can be terminated in case of lay-off for an indefinitely long period by giving him due notice or pay in lieu thereof but we find no ground for holding that the power of the employer to terminate the employment of a permanent workman under clause 12(1) must be restricted to the circumstances mentioned in clause 11(3), namely, in case of lay-off only. No authority for such proposition could be placed before us. It appears that there are significant differences between clause 11(3) and clause 12(1) to preclude the possibility of dependence of one upon the other. Whereas, in the case of lay-off for an indefinitely long period, the services of all workmen, whether permanent or temporary, can be terminated under clause 11(3) by giving notice or pay in lieu thereof, the employment of only permanent workmen can be terminated under clause 12(1) by giving notice or pay in lieu thereof. No temporary workman and no probationer or badli is entitled to any notice or pay in lieu thereof vide clause 12(2). Aggain whereas, in case of termination of services for layoff under clause 11(3), workmen have to be giving due notice or pay in lieu thereof (underlining is ours), in case of termination of employment under clause 12(1), permanent workmen are entitled to one month's notice in the case of monthly-rated workmen and two weeks' notice in the case of other workmen or in lieu thereof to one month's or two weeks' pay, as the case may be. Clause 1 of the Standing Orders of the Ordinance with the heading "Certificate on Termination of Service" which was referred to by Mr. Humayun Kabir Chowdhury in support of his contention, merely says that a permanent workman is entitled to a service certificate at the time of his dismissal, discharge or retirement from service. It does not put any restriction on the power of the employer to terminate service of a permanent workman in accordance with clause 12(1).
10. There is no dispute in this case that the salary that was ordered to be paid to Nurul Gani under the impugned order was adequate. The impugned order which we have already quoted does not show that the employment of Nurul Gani was terminated by way of penalty for any misconduct nor does it contain any stigma against him. It is, no doubt, true that he was charge-sheeted and suspended on 28-2-63 under clause 13(3) of the Standing Orders of the Ordinance but was allowed to join his duties on 7-3-63 and the impugned order of termination of his employment was passed on 8-3-63, on account of which the said order was construed by the High Court as a malafide one. Reliance was placed for this view by the High Court upon the decision in the case of Glaxo Laboratories (Pakistan) Limited, Karachi Vs. Pakistan reported in 14 D.L.R. (S C.) 17 but, in that case the workman in question was charge sheeted under rule 23(a) of the Standing Orders of the Company for wilful disobedience of orders issued by his superior and was discharged from service after enquiry was held. It was found that the order of the Company, for disobedience of which the workman was discharged, was itself an illegal order, being in violation of clause (b) of section 35 of the Factories Act, 1934 and so the workman was under no legal obligation to obey the same. The contention raised before the Supreme Court in that case that the termination of services of the workman, having been made by giving him one month's salary in lieu of notice, was in accordance with the contract of his service and came within the purview of rule 21 of the Standing Orders, instead of rule 23, was repelled by the Supreme Court on the ground that not only the order by which his services were dispensed with mentioned that he had been found guilty of contravening rule 23(a) of the Standing Orders but that during the proceedings before the Tribunal as well as before the Supreme Court, it was made clear that his services had been terminated under rule 23 of the Standing Orders for disobeying the order of the Company. In the instant case, neither the order terminating the services of Nurul Gani shows that it was due to assaulting the Foreman nor was it the case of the appellant either before the Industrial Court or the High Court that the impugned order was based upon that cause. The reason for holding the termination of services of the workman as illegal in that case, does not accordingly hold good in the present case.
11. If in the instant case, the termination of employment of Nurul Gani by giving him salary in lieu of notice was in accordance with the Statutory condition of his employment and the employer exercised the right to terminate the employment in accordance with the provision of the Statute, the mere fact that the charge drawn up against him earlier was either dropped or was not pursued through, cannot affect the right of the employer to so terminate the employment. This view receives support from the decisions of the Supreme Court in the case of Secretary, E.P. I.D.C. Vs. Md. Shamsul Huq reported in 22 D.L.R. (S.C.) 284. The respondent in that case was appointed as an Attendant in the Pakistan Industrial Development Corporation and was subsequently confirmed in his post but his services were terminated on 2nd April, 1964 with immediate effect on the ground that his services were no longer required, by offering one month's pay in lieu of notice. He filed Writ Petition under Article 98 of the 1962 Constitution and the High Court held that the services of the respondent were terminated by way of penalty, and since no opportunity to show-cause against the proposed order of termination of his services was given, the impugned order was illegal. On appeal, the Supreme Court, held that since the impugned order did not contain any charge or stigma against the respondent and under the said order his services were simply terminated with an offer of one month's pay in lieu of notice, the order could not be regarded as penalty, though in the office note of the Executive Officer of the Corporation there was some allegations about the efficiency of the respondent.
12. In the case of Karnafully Paper Mills Limited Vs. Karnafully Paper Mills Workers' Union and others, one M.A, Rahman, a worker of the Mill was discharged after an enquiry but with a month's salary in lieu of notice. The Tribunal received certain evidence regarding the enquiry and came to the conclusion that it was not proper or regular. As to the action of the Management in discharging M. A. Rahman with a month's pay in lieu of notice, the Tribunal remarked that this could not be substituted for a punishment, which was what the Management had done. This view did not find favour with the Supreme Court which held as follows:—
The principle that where punishment is not found who has been placed under a charge, his discharge upon notice is also barred, cannot be accepted on any ground in relation to private employment".
13. Mr. Humayun Kabir Chowdhury, however, contended that the principle laid down in the aforesaid case is no longer applicable as the law relating to the terms of employment of workmen has undergone a change since the judgment in the above case was delivered. According to him the said case was decided when the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as ''the Act") was in force under which the relationship between the employer and the employee was regulated in accordance with the contract embodied in the Standing Orders of the Company and not in accordance with the Statute, viz,, the Ordinance, which now gives wider protection to an employee. Although there is no reference anywhere in the judgment of the Karnafully case, referred to above, to the provisions of the Act, it appears that on the date of discharge of the workman of that case, namely, M.A. Rahman on 2nd March. 1956, the Act was in force. It came into force on the 23rd April, 1946 whereas the Ordinance came into force on the 3rd February, 1960. It is to be seen whether the right of the employer to terminate the services of a permanent workman by giving him notice or pay in lieu thereof has undergone any change. Clause (b) of sub-section (2) of section 15 of the Act empowered the Government to make rules to set forth Model Standing Orders and in exercise of that power the Central Government framed the Industrial Employment (Standing Orders) Central Rules, 1946 (hereinafter referred to as the Rules') and set out in Schedule I of the said Rules, Model Standing Orders. Order 13(1) of the Model Standing Orders was as follows:—
14. It may be noted that the right of the employer to terminate the services of a permanent workman by giving him notice or pay in lieu thereof, as was available under Order 13(1) of the Model Standing Orders, was exactly the same as it is now under clause 12(1) of the Standing Orders of the Ordinances and hence it cannot be said that the right of permanent workman against termination has been enlarged under the present Ordinance. As regards the contention of Mr. Humayun Kabir Chowdhury that terms and conditions of employment of workmen formerly regulated by contract between the employer and employee, this also does not appear to be tenable. Under sub-section (1) of section 3 of the Act the employer was, no doubt, required to submit to the certifying officer, copies of the Draft Standing Orders proposed by him for adoption in his Industrial Establishment but sub-section (2) of the said section made it clear that such Draft where Model Standing Orders have been prescribed, shall be, so far as is practicable, in conformity with such Model. The Model Standing Orders were incorporated in Schedule I of the Central Rules which came into force on the 18th December, 1946, that is, about 8 months after the Act itself came into force on the 23rd April, 1946 and hence it is evident that under the earlier law the terms and conditions of employment of workmen were regulated by statutory Orders, namely, in accordance with the Model Standing Orders of the Rules from the 18th December, 1946 in the same manner as they are now being regulated under the Statutory Standing Orders of the Ordinance under clause 12(1) of which the employer is empowered to terminate the employment of a permanent workman, such as Nurul Gani, by giving him notice or pay in lieu thereof and without giving him any opportunity to show cause against the proposed termination.
The appeal is, accordingly, allowed and the award of the Industrial Court directing the reinstatement of Nurul Gani, is set aside.
In the circumstances of the case, the parties are left to bear own costs.