Md. Mahmudul Haque @ Muhammadul Haque Vs. Md. Shamsul Alam, 36 DLR (AD) (1984) 179

Case No: Criminal appeal No. 40 of 1983

Judge: Badrul Haider Chowdhury,

Court: Appellate Division ,,

Advocate: Mr. Zakir Ahmed,,

Citation: 36 DLR (AD) (1984) 179

Case Year: 1984

Appellant: Md. Mahmudul Haque @ Muhammadul Haque

Respondent: Md. Shamsul Alam

Subject: Labour Law,

Delivery Date: 1983-11-20

 
Supreme Court
Appellate Division
(Criminal)
 
Present:
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
 
Md. Mahmudul Haque @ Muhammadul Haque
.................………..Appellant
Vs.
Md. Shamsul Alam
...............................Respondent
 
Judgment
November 20, 1983.
 
The Employment of Labour (S.O) Act, 1965 (8 of 1965)
Section 25
The Industrial Relations Ordinance, 1969 (23 of 1969)
Section 35
Interpretation of Statute
When the law has conferred jurisdiction expressly, no amount of consent by the parties invests a Court with jurisdiction which is not given by law……………….(4)
The matter fell between the concurrent juris­diction of the Labour Court, Rajshahi and the Labour Court, Chittagong and the law says that exclusive jurisdiction in such case lay with Labour Court II, Dhaka. In this view of the matter all the proceedings are quashed……..(5)  
 
Lawyers Involved:
A. M. Rashiduzzaman, Advocate instructed by Mr. Kaiseruddin Ahmed, Advocate-on-Record—For the appellant.
Zakir Ahmed, Advocate instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent.
 
Criminal appeal No. 40 of 1983.
(From the Judgment and order dated 10-5-1983 passed by the High Court Division in Criminal Revision No. 29 of 1982.)
 
JUDGMENT
 
Badrul Haider Chowdhury J.
 
This appeal by special leave arises out of the judgment and order passed by the High Court Division, Rangpur Bench in Criminal Revision No. 29 of 1982 discharging the rule issued therein and rejected the prayer for quashing of the Criminal Proceeding against the appellant in Criminal Case No. 20 of 1982 in Rajshahi Labour Court.
 
Facts are as follows:
 
The appellant was the Depot-in-Charge, Bogra Sales Depot of Glaxo Bangladesh Ltd., a company incorporated in Bangladesh under the Companies Act, 1913 having its registered office at Fouzdarhat Industrial Area, in the district of Chittagong. The respondent was an employee of its Bogra Sales Depot. On charge of short supply and unauthorised deli­very of goods to one M/s Ally Bross of Rangpur the respondent was found guilty for misconduct. Acting under the instruction of the Company the appellant informed the respondent that he had been found guilty of misconduct in connection with the company's business and therefore he has been dismissed from the Company's service with immediate effect under section 17(3)(b) of the Employ­ment of Labour (Standing Order) Act, 1965. The respondent filed a case under section 25 which was marked as Complaint Case No. 29 of 1980 in the Labour Court of Rajshahi for a declaration that the dismissal order dated 20.6.80 was illegal and without jurisdiction and for an order to reinstate the respondent with all back wages and costs. The Labour Court, Rajshahi repelled the contention of the appellant on the point of jurisdiction namely, that all action had been taken by the Com­pany from its Chittagong office where regis­tered office is situated and therefore in terms of Government Notification dated 22nd April, 1980 the Labour Court II, Dhaka is the pro­per court inasmuch as the case was within the concurrent jurisdiction of more than one Labour Court. The Labour Court repelled the contention and observed:
 
"That instruction and advice was received by O.P. 3 from his Chittagong office does not matter for such advice is not part of the cause of action.
 
Hence it is not a case of concurrent jurisdiction of two Labour Courts-which are triable by Labour Court II, Dhaka." 
 
2. The Labour Court, Rajshahi directed reinstatement of the respondent. Thereafter on 7.9.82 the respondent made a complaint under section 26 of the Standing Orders Act for punishing the appellant as well as the Ma­naging Director, Glaxo (Bangladesh) Ltd. for failing to implement the order and upon this complaint the Labour Court Rajshahi started a criminal proceeding against them. It ap­pears that a Writ Petition being W P. No 467 of 1981 was filed by the Company which however abated after promulgation of the Martial Law. Thereafter the Company moved the High Court Division for quashing the proceeding under section 561A Cr. P. C. The Rangpur Bench took the view that the decision of the Labour Court, Rajshahi was final unless it was revised by the Zonal Martial Law Administration upon a petition for revision and since no revision was filed "it is beyond our scope to look into the legality of the said decision of the Labour Court." As for the Criminal Proceeding the High Court Division took the view that the dismissal order was not passed by the Managing Director but by the appellant and in this view of the matter the Managing Director was exonerated and proceeding quashed as it ''cannot legally pro­ceed against the Managing Director, Glaxo Bangladesh Ltd., Chittagong" but observed ''that the proceeding will continue against the appellant alone".
 
3. Leave was granted to consider that the Company and its Managing Director both being residents of Chittagong and the peti­tioner though in charge of Bogra Sales Depot of the Company was employer of the Company and hence the complaint case No. 29 of 1980 clearly fell within the jurisdiction of the Chittagong and Rajshahi Labour Courts, con­sequently under such circumstances the Second Labour Court in Dhaka had the exclusive jurisdiction to decide the said complaint case under section 25 of the Employment of Labour (Standing Orders) Act, 1965 read with Government Notification under section 35 of the Industrial Relations Ordinance, 1969. Both the appellant and the respondents are the employees of the Glaxo (Bangladesh) Ltd. which has registered office at Chittagong. It is now well settled that the situation of the registered office fixes domicile of the Company and one of the tests which has been laid down so far a trading Company is concerned is ''whether the directing power resides on, in the expressive language of Foot, where the brain which controls the operation of the Company is situated" (Cheshire Private International Law, 1938 Edi­tion at page 198). Admitted position is that the orders were received from the Chittagong Office and the Labour Court had noticed:
 
"The Chittagong Office issued advice and instruction to the O.P. 3 at Bogra who issued all the orders i.e. Ext F1-F."  
 
The Labour Court however construed: 
 
"That instruction and advice was recei­ved by O.P. 3. from his Chittagong Office does not matter for such advice is not part of the cause of action". 
 
What is the cause of action in this case? On the showing of the respondent himself the order of dismissal dated 20.6.80 has given rise to the cause of action respondents stated in his concise statement as under: 
 
"That finally acting under instruction of the Head Office of the said Company the petitioner advised the respondent that he had been found guilty of misconduct, of dishonesty in connec­tion with the said Company's business and property under section 17(3) (b) of Employment of Labour (Standing Orders) Act, 1965 and dismissed him from the said Company's service with immediate effect". 
 
Thereafter he filed a grievance petition under section 25 of Standing Orders Act, which was, however, rejected and then he filed the complaint case being Complaint Case No. 29 of 1980 "praying that dismissal order dated 20.6.1980 be declared illegal, unlaw­ful, without jurisdiction" The Labour Court Rajshahi directed reinstatement of the res­pondent notwithstanding the contention of the Company and the appellant that the case fell within the concurrent jurisdiction of Rajshahi and Chittagong and therefore in accordance with law it should be decided by the Labour Court No. II, Dhaka. The rele­vant Notification is quoted as under:
 
"No. S.R.O/101-L/80-LIWVI/I(I)/78— In exercise of the powers conferred by sub-section (i) of section 35 of the Industrial Relations Ordinance, 1969 (Ord. No XXIII of 1969), and in supersession of all other Notifications issued in this behalf, the Government is pleased to establish the following Labour Courts for the areas specified below against each of the Labour Courts, namely— 
(2) Labour 1. Gazipur Subdivision (except Court II, Tongi Police Station) Narayanganj Dhaka. Sub-Division and Narsingdi Sub-Division of Dhaka district,
2. Demra Police station of the Dhaka Metropolitan and
3. Cases falling within the con­current jurisdiction of more than one Labour Court". 
 
4. It is thus clear that the case fell within the concurrent jurisdiction of Labour Court, Rajshahi and Chittagong. Section 35 says that the Government by Notification in the Official Gazette, establish as many Labour Courts as it considers necessary and where it establishes more than one Labour Court, "shall specify in the Notification the territorial limits within which each one of them shall exercise of jurisdiction under the Ordinance" (emphasis added). The law itself mentioned its territorial limits for exercising jurisdiction and therefore when a Labour Court exercises jurisdiction which is beyond its territorial limits, that exercise of jurisdic­tion is void and without jurisdiction and consequently the proceeding are also void. This is not a technical point but a point that touches the jurisdiction of a court. Wheat the law has conferred jurisdiction expressly, no amount of consent by the parties invest as court with jurisdiction which is not given bylaw. The exercise of jurisdiction by Rajshahi Labour Court was clearly illegal and therefore the entire proceeding direct­ing the reinstatement of the respondent un­der section 25 and non-implementation of the said direction having given rise to a Criminal Proceeding entertained by the said Court was also illegal. The High Court Division noticed that the Managing Director is a resident of Chittagong but by adopting a reasoning that the Managing Director had nothing to do with the order have found it necessary to pass an order that he be exonera­ted from the proceeding and the proceeding would only continue against the appellant, though the High Court Division itself has said in the previous paragraph ''in such a situation it is beyond our scope to look into the legality of the said decision of the Labour Court". It is unfortunate that the High Court Division missed the point that the Company is a juristic person and all actions are taken in the name of the Company. Since it has been found both by the Labour Court aria the High Court Division that the Mana­ging Director is a resident in Chittagong and the registered office is located in Chittagong and the company carried on trading activi­ties all over the 'country', consequential in­ference is that everything is directed from Chittagong. In other words, it is from Chittagong where the brain which controls ope­ration of the Company". The complaint case itself was filed against the Company, showing it as O. P. No. 1 as the employer of the worker. Having come to this irresistible conclusion there is no escape from the opinion that all the proceedings initiated, through Labour Court, Rajshahi was coram non-judice.

5. Mr. Zakir Ahmed appearing for the respondent submitted that the respondent is a poor worker and the finding is that he made delivery to Ally Bros, on a misunder­standing and the Labour Court also recorded that due to the misunderstanding of the invoice the delivery was made contrary to what the company intended but there was no malafide on the part of the dismissed worker namely, the respondent. This is a factor to be considered by the employer and Mr. Rashiduzzaman appearing for the appellant did not assail this finding inasmuch as his main contention was about the jurisdiction of the Labour Court, Rajshahi. Since we are to interpret the law, we hold that the matter fell between the concurrent juris­diction of the Labour Court, Rajshahi and Labour Court, Chittagong and the law says that exclusive jurisdiction in such case lay with the Labour Court II, Dhaka. In this view of the matter all the proceedings are quashed. It is for the respondent whether to bring a fresh proceeding in the Labour Court II, Dhaka or for that matter for the Company to consider whether the case of a worker who inadvertently due to some confusion about the invoice erred should be treated with sympathetic consideration.
 
In the result therefore this appeal is allowed. The order of the Courts below are set aside. No costs.
 
Ed.