Case No: Criminal Appeal No. 8 of 1984
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Md. Khalilur Rahman,,
Citation: 37 DLR (AD) (1985) 38
Case Year: 1985
Appellant: Maqbul Hossain
Respondent: Bangladesh Milk Producers’ Co-Operative Union Ltd.
Subject: Labour Law,
Delivery Date: 1984-6-3
FKMA Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
Chowdhury ATM Masud, J.
Syed Md. Mohsen Ali, J.
Maqbul Hossain and others
Bangladesh Milk Producers’ Co-Operative Union Ltd.
June 3, 1984.
Industrial Relations Ordinance, 1969
Sections 36 and 36(3)
The Labour Court has the same process as are vested in the Magistrate, First Class, under the Code of Criminal Procedure but “for the purpose of appeal from the sentence passed by it, it shall deemed to be a Court of Sessions under the Code.” Thus from a sentence passed by the Labour Court appeal shall lie to the High Court Division under section 411 of the Code of Criminal Procedure……………..(10 & 11)
When the Labour Court exercise its jurisdiction for trial of offences under the Labour law, it does so as a Magistrate of the 1st Class but when the punishment is given and sentence is recorded then for the purpose of appeal it shall be deemed to be a court of Session under the Criminal Procedure………….(12)
Khalilur Rahman, Advocate instructed by Syed Sakhawat Ali, Advocate-on-Record—For the Appellant.
Ex-parte—For the Respondent.
Criminal Appeal No. 8 of 1984
(From the judgment and order dated 27.10.83 passed by the High Court Division in Criminal Appeal No. 307 of 1983.)
This appeal is directed against the judgment of the High Court Division, Dhaka Bench in Criminal Appeal No. 307 of 1983.
2. Appellants are the Deputy General Manager (Admn) and Assistant Manager (Admn) of the Milk Producers' Union which sale of milk products. General Manager is the Chief executive and it is managed by Managing Committee and controlled by the Registrar of Co-Operative Societies of the Government of the People's Republic of Bangladesh. Respondent is a registered Trade Union under the Industrial Relation Ordinance, 1969.
3. An agreement was made on 17.3.81 between the appellant and the respondent and the said agreement was signed by the accused appellant No. 1 on behalf of the Milk Producers' Union, and by the then President and General Secretary represented by the respondent.
4. Thereafter the complainant respondent filed a Criminal Case No. 61 of 1982 in the First Labour Court at Dhaka against the accused appellants alleging, inter alia, that the appellants avoided to implement some of the terms of the said agreement dated 17.3.81 being clauses 1 (chha) 2 (gha), 3 (Kha), 4 (Gha), 5 (Kha) and 7 (Ka) of the said agreement for payment of Eid Ex-gratia equivalent to two months’ wages since 1982 for supply of one pair of shoes and one set of warm cloths in addition to uniform for introduction of Benevolent Fund etc. and thereby violated the said agreement. The complaint further alleged that the accused appellant were liable for punishment under section 55 read with section 54 of Industrial Relation Ordinance for failing to implement the aforesaid terms of the said agreement.
Accused were summoned by the Labour Court under section 26 of the Employment of Labour (Standing Orders) Act, 1965 in the Criminal case being Criminal case No. 61 of 1982.
4. The accused appellants submitted that they had not violated any of the said terms of was formed for the purpose of dairy farm the agreement and most of the terms were and other installations for production and implemented and remaining terms were under consideration for implementation. It was contended that the Labour Laws are not applicable to the Milk Producers' Union established under Co-Opera five Society Act, 1940. Lastly it was submitted that the case could not be tried under section 55 or 54 of I.R.O. as they were summoned to answer a charge under section 26 of the Labour Standing Orders Act, 1960.
5. The Labour Court found them guilty of committing offence under section 56 I.R.O. and sentenced them and issued direction to the accused to implement the remaining terms of the agreement without further delay.
6. The appellants being aggrieved filed Criminal Appeal No. 307 of 1983 before the High Court Division, Dhaka Bench. A learned Single Judge dismissed the appeal holding that the appeal was not maintainable on the ground that the jurisdiction of the High Court Division to entertain such appeal which was vested under section 36 of the I.R.O. had been ousted by the Martial Law Order No. 19 of 1982 and therefore the said appeal was not maintainable.
7. Leave was granted to consider the question whether the jurisdiction of a superior court could be ousted by necessary implication and whether the High Court Division was correct in taking the view that the jurisdiction has been ousted and in not entertaining the appeal.
8. Mr. Khalilur Rahman, the learned Counsel appearing for the appellants submitted that the learned Single Judge failed to appreciate the scope and applicability of M.L.O.19 of 1982 and further failed to consider that the order passed in a Criminal proceeding by the Labour Court is deemed to be an order passed by the Court of Session under the Criminal Procedure Code and appealable under section 36 (3) of the I.R.O.
9. M.L.O.19 may be considered. It was promulgated on 25th May, 1982. Paragraph 2 provides—
Explanation.—"Labour Court" means a Labour Court established under the Ordinance e.g. I.R. Ordinance, 1969."
10. In Criminal matter for the purpose of trying an offence under the I.R.O., it is provided that a Labour Court shall have the same powers as are vested in the Court of a Magistrate First Class under the Criminal Procedure Code, 1898 and shall "for the purpose of appeal from the sentence passed by it, be deemed to be a Court of Session under the Code." In other words, for the purpose of an appeal from a sentence passed by Labour Court, it shall be deemed to be a court of session under Criminal Procedure and therefore an appeal lies to the High Court Division (See section 6 to 41 Cr.P.C.).
11. Accordingly the appellants filed an appeal before the High Court which was numbered as Criminal Appeal No. 307 of 1983. The learned Single Judge did not hear the matter as the jurisdiction according to him was ousted by M.L.O.19 of 1982. M.L.O.19 has been cited above and makes the distinction between decision and award inasmuch as by the opening sentence "any person aggrieved by any decision other than award, a labour Court...file a petition for revision of the decision to the Zonal Martial Law Administrator, It is thus clear that the M.L.O. 19 has provided a forum against the decision of the labour Court but so far the award is concerned, it has not touched them. Section 37 makes the distinction of the award and decision of the Labour Court. Sub-section (3) provides—"any party aggrieved by an award given under sub-section (1) may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery thereof and the decision of the tribunal in such appeal shall be final, Subjection (4) then provides: "all decisions of Labour Court, other than awards referred to in sub-section (3) of section 36 shall be final and shall not be called in question in any manner by or before any court or other authority." In other words the award is appealable to the Labour Tribunal and all other decisions of the Labour Court are final and cannot be appealed but section (4) add another circumstance namely-"sentences referred to in sub-section (3) of section 36." Section 36(3) refers that for the purpose of appeal from all" sentences, the Labour Court shall be deemed to be Court of Session. Otherwise, it has the power as are vested in the Court of Magistrate, 1st Class under the Code. The Legislative intendment for the purpose of appeal is to take away it from the ambit of Code of Criminal Procedure and by legal fiction makes it a court of session for which under Code of Criminal Procedure an appeal lies to the High Court.
12. The learned Single Judge unfortunately has missed this very point that in the Labour Court Law there are three things which have been contemplated namely (a) Award, (b) decision (c) sentence for offence under the Ordinance. “Award” which has been defined means the determination by a Labour Court arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and includes an ad interim award. Clause (XIII) defines that Industrial dispute means any dispute which is connected with the employment or terms of the employment or condition of works and the Ordinance provides as to how to raise the Industrial dispute. Sections 53 to 63 provides for penalties for various offences and section 64 provides that no court other than a Labour Court or that of the Magistrate Court, 1st Class shall try any offence punishable under this Ordinance. Then by an Amendment Act 29 of 1980 it has been asserted that no prosecution for an offence punishable under section 53 or section 62A shall be instituted except by or under the authority, or with the previous permission of the Director of Labour or of an officer authorised by him in this behalf: The offence' includes a penalty for unfair labour practice (section 53), Penalty for committing breach of settlement (section 54), Penalty for failing to implement settlement (section 55), Penalty for false statements (section 56), Penalty for illegal strike or lock-out (section 57), Penalty for instigating illegal strike or lock out (section 58), penalty for taking part in or instigating go slow (section 59), penalty for discharging officer or trade union in certain circumstances etc (section 60), penalty for embezzlement of funds (section 61), penalty for other offences (section 62) and then by amendment section 62a is also asserted penalty for non-appearance or non-representation before a Conciliator, offences by corporation (section 63). These offences are to be tried by a Labour Court and when once a Labour Court exercise its jurisdiction, it does so as a Magistrate 1st Class but when the punishment is given and sentence is recorded then for the purpose of appeal it shall be deemed to be a court of Session under the Criminal Procedure. (emphasis added)
13. As has been mentioned above that M.L.O. 19 of 1982 only dealt with the decision and not with award far less the question of sentence. Nothing said about the sentence, and analysing the law in the back-ground of section 37 (3) where relief has been mentioned so far the award is concerned, by subsection (4) finality or decision of the Labour Court has been given. Section 36 (3) provides for an appeal and for the purpose of the appeal a Labour Court becomes a court of session and under the Criminal Procedure Code all appeals from a court of Session lies to the High Court Division (Sec. 410 Cr. P.C.) and if no appeal is preferred the sentence becomes final and it cannot be called in question in any manner before the Court or authority inasmuch as the order of sentence finally determines the point and bring the case to an end. (AIR 1949 FC 1).
14. The learned Single Judge of the High Court Division unfortunately failed to notice the law as aforesaid; the decision is therefore, must be set aside.
In the result, therefore, this appeal is allowed and it "is remanded to the High Court Division for disposal in accordance with law.