Md. Ilyas Khan Vs. 3rd Labor Court, Khulna, 24 DLR (AD) (1972) 250

Case No: Petition No. 409 of 1970

Court: Appellate Division ,,

Citation: 24 DLR (AD) (1972) 250

Case Year: 1972

Appellant: Md. Ilyas Khan

Respondent: Chairman, Labor Court

Subject: Labour Law,

Delivery Date: 1971-1-7

 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Maksum-ul-Hakim, J.
Fazle Munim, J.
 
Md. Ilyas Khan, Manager, Khan Bro­thers Ltd., Khulna
…………..............Petitioner
Vs.
Third Labour Court, Khulna, East Pakistan
…………...............Respondents
 
Judgment
January 7th, 1971.
 
A’s service was terminated by the Management of the Company in which he was employed on the ground that his service was no longer required. On evidence it has been established that A’s service had been terminated because he took active part in union affairs.
 
Lawyers Involved:
Sultan   Hossain   Khan—For   the Petitioner.
No one—For the Respondents.
 
Petition No. 409 of 1970.
 
JUDGMENT
 
Muksum-ul-Hakim J:
 
In this Rule, the petitioner challenges the validity of the Judgment and order passed by the Third Labour Court, Khulna, in Complaint Case No. 101 of 1970 and prays for a declaration that the same is without jurisdiction, void and of no legal effect.
 
2. The facts giving rise to this petition may be stated briefly hereunder:
 
"The respondent No. 2 was employed as a Pump Driver of the Jute Baling Press belonging to Messrs Khan Brothers Limited. On 9.5.70 the petitioner, who is the Manager of the said Company, issued an order terminating the services of the said employee. The order as made Annexure 'A' to the petition may be quoted as follows:
 
"No. Nil                                       Dated 9.5.70
To
Abdul Kader,
Pump Driver,
We no longer require your services and hence we terminate your service with the company forthwith under Section 19 of East Pakistan Employment of Labour (Standing Orders) Act.
You will be paid ninety days salary in lieu of notice and other benefits as provided n law. You may collect your dues from the office on any working day.
For Khan Brothers Ltd,
Sd/ Md. Ilyas Khan,
Manager
 
3. On receipt of this letter the respondent No.2 represented his grievances before the petitioner and prayed for being re-instated. The representation having been rejected, the respondent No.2 filed an application under section 25 of the East Pakistan Employment of Labour (Standing Orders) Act before the Third Labour Court of East Pakistan, Khulna. The respondent No.2 alleged therein that the order of termination was passed to victimise him for his trade union activities and also to harass him, as he was actively associated in promoting the interest of the workers of his Union. He further pointed out that he was Assistant Secretary of the Daulatpur Jute Press and Baling Workers' Union. In the Absence of the General Secretary of this Union, he performed the functions of the General Secretary and took all steps in the trial of Labour Dispute Case No 87 of 1968 between that union and Messrs Khan Brothers Ltd. A new Union was also formed which was known as Khan Brothers Jute Press Workers' Union and the respondent No 2 was elected the General Secretary of this Union. He contended that the second party petitioner being annoyed with his activities suddenly terminated his services by the aforesaid order dated 9.5.70 to victimise him for his trade union activities and, as such, he filed the complaint case being Complaint Case No. 101 of 1970 before the Labour Court challenging the legality of this termination order.
 
4. The second-party-petitioner contested the case denying the allegation and contended that the services of the complainant-respondent No. 2 was terminated, as there was no further necessity of any Pump Driver. It was a case of termination simpliciter and had nothing to do with the victimisation of the complainant-respondent No. 2 for his trade union activities.
 
5.  The Labour Court, respondent No. 1  after considering the respective pleas of the parties and perusing the records and evidence in the case held that the Labour Dispute Case No. 87 of 1968 between the Daulatpur Jute Press and Baling Workers' Union and Messrs Khan Brothers Limited was  disposed  of on  6.5.70  and  the complainant respondent No. 2, who was the Assistant Secretary of the said Union looked after the case of the Union and did everything on behalf of it in the absence of its General Secretary. It was further found that the complainant-respondent No. 2 took initiative in forming a new Union comprising of the workers of Messrs Khan Brothers Limited which was registered on 25,6.70. The complainant respondent No. 2 was also elected the General Secretary of this union. This Labour Court found that in view of these activities, the management could not remain happy with the complainant-respondent No. 2, and the termination of his services was made with intent to victimise him for his trade union activities. The termination was held to be malafide and   was set aside. The complainant was directed to be reinstated in his former post as Pump Driver with effect from the date of termination with all back wages from the aforesaid date within thirty days from the date of the order.
This order has been challenged before us.
 
6. Mr. Sultan Hossain, the learned Advocate appearing for the second-party management has firstly contended that the complaint petition was not maintainable in view of the fact that the complainant was not a member of a registered trade union as to enjoy the protection granted under section 25 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965. The learned Advocate has pointed out that as the new trade union organised by the complainant was registered on 25.6.70 and the order of termination was passed on 9.5.70, as such, when it was passed, the complainant was not an officer of a registered trade union.
 
No-one has appeared in this case on behalf of the respondents.
 
7. Provision to section 25 of the East Pakistan Employment of Labour (Standing Order) Act, 1965 runs as follows:
 
"Provided that no complaint shall lie against an order of termination 6f employment of a worker under section 19 unless the worker concerned is an officer of a registered trade union and his employment is alleged to have been terminated for his trade union activities or, unless the worker concerned, whether an officer of a registered Trade Union or not, has been deprived of the benefits specified in that section......."
 
8. The order of termination as quoted earlier shows that the management sought to exercise their power under section 19 of this Act and offered to pay his salary for ninety days in lieu of notice as well other benefit as provided under the law. During the course of hearing of the complaint case before the Labour Court, the complainant contended that the termination order was passed against him in course of the pendency of the Labour Dispute Case No. 87 of 1969. This, however, was found to be clearly untenable, as this dispute case was disposed of and the judgment was delivered on 6.5.70 and the order of termination was passed three days thereafter ie on 9.5.70. It was further contended on behalf of the complainant that after the disposal of this dispute case, an appeal was pending. The Labour Court found that as no material was placed before it to show the pendency of such appeal, as such the contention of the complainant could not be accepted. It is abundantly clear from the records and could not be effectively challenged that the complainant was an Assistant Secretary of the Union known as the Daulatpur Jute Press and Baling Workers Union from September 1967. It is also in evidence that the complainant took all steps in prosecuting the Dispute Case No. 87 of 1969 on behalf of this Union in the absence of its General Secretary. It is quite clear from the records that until the delivery of the judgment in this case ie 6.5.70, the complainant was the Assistant Secretary of this Union and also continued to be so at the time the order of termination was passed. In this petition of complaint the complainant made it abundantly clear and stated that he was a trade union executive of a registered trade union bearing registration No. 1155 in the name of Daulatpur Jute Press and Baling Workers Union and this was a collective bargaining agent within the meaning of section 52 of he Industrial Relations Ordinance, 1969. The complainant deposed in support of this. On behalf of the management two witnesses were examined, but none of them challenged this fact. Nor was this fact made an issue before the Labour Court. It is obvious, therefore, that there is no substance in the contention of the petitioner to the effect that the complainant-respondent No. 2 was not an officer of a registered trade union at the time the order of termination was passed.
 
9. Mr. Sultan Hossain Khan has next contended that the complainant-respondent No. 2 was elected General Secretary of Messrs Khan Brothers Workers Union on 1.4.70 and the said Union was registered on 25.6.70. The learned Advocate contended that a worker could not be a member of more than one union at the same time as the complainant was the General Secretary and a member of the Khan Brothers Workers Union from 1.4.70, as such, he could not remain a member of Daulatpur Jute Press and Baling Workers Union on and from this date ie, 1.4.70. He has drawn our attention to the provisions of Industrial Relations Ordinance, 1969 to support his contention. After scrutiny of the provisions of this Ordinance, we are constrained to hold that there is no provision in this Ordinance to lend countenance to such a contention. In our opinion, spirit of this Ordinance does not go counter to the proposition that a worker may 'remain a member of more than one Utode union at one and the same time. It is further necessary to point out that even if that would have been the case, the complainant's membership with the old union could not be in peril because of his active participation in promoting a separate union. Even if the learned Advocate's contention is accepted then the same would have resulted in not completing the membership of the complainant in the new union until his association- with the old union was legally terminated. We are, however, of the view that on the date the order of termination was issued, there was nothing to show that the complainant ceased to be a member of the Daulatpur Jute Press and Baling Workers Union. In view of the above, we hold that this contention of the learned Advocate has no substance.
 
10. The next point argued by the learned Advocate is that the tribunal that heard the complaint petition of the complainant was constituted under the Industrial Relations Ordinance, 1969. The Court contemplated under the East Pakistan Employment of Labour (Standing Orders) Act, 1965 was a different Court which could only be constituted under the provisions of East Pakistan Labour Dispute Act, 1965. Sub-section (5) (a) of section 35 of the Industrial Relations Ordinance, 1969, however, provided that a Labour Court constituted under this Ordinance was entitled to adjudicate and determine an industrial dispute which was referred to it under section 32 or under section 33 or relating to a matter in respect of which an application was made to it under section 34. Section 34 provided, inter alia, that any part to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an employer or workman under any law could apply to the Labour Court for adjudicating the dispute. The dispute within the meaning of clause (xiii) of section 2 of this Ordinance and the right in question was clearly guaranteed under the proviso to section 25 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965. It is obvious, therefore, that the Labour Court as was accepted to be constituted under the Industrial Relations Ordinance, 1969 could clearly adjudicate this dispute.
 
11. It was next contended by the learned Advocate that this Labour Court which heard the case could not be considered to be a court as contemplated under section 35 of the Industrial Relations Ordinance, 1969. In our opinion, this contention as well could not be sustained in view of the fact that no material was placed before us to show that the members who advised the Chairman in this case were, in fact, selected by the Chairman. Apart from that, it is necessary to mention that the Labour Court as was constituted under the Industrial Disputes Ordinance, 1959 and East Pakistan Labour Disputes Act, 1965 was constituted and deemed to be constituted under the Ordinance of 1969, as will be apparent from clause (b) of sub-section (2) of section 67 of this Ordinance. Moreover, the procedure of appointing the member adviser of the Labour Court is substantially the same in the present Ordinance of 1969 as it was in the East pakistan Labour Dispute Act of 1965. In view of the above, we hold that the contention of the learned-Advocate has no substance at all.
 
12. The last point urged by the learned Advocate for the petitioner is that no evidence of victimisation was given in this case before the Labour Court and as such the Labour Court erred in law in holding that the order of termination was passed with a view to victimise the complainant No. 1 for his trade union activities. We find from the records that positive evidence in this regard was given by the complainant himself before the Labour Court. Moreover, the very fact that the complainant looked after the case of his union, namely, Daulatpur Jute Press and Baling Workers Union in Labour Dispute case No. 87 of 1969 against the petitioner and the fact that the termination order itself was passed three days after the delivery of judgment in that case clearly indicated that this was an instance of victimisation. Moreover, the finding of fact arrived at by the Labour Court could not be challenged in this case. In view of the above, we find that there is no substance in this petition.
 
The Rule is accordingly, discharged. As none has appeared for the respondents, there will be no order as to costs.
 
Ed.