Case No: Civil Appeal No. 113 of 1997
Judge: Mohammad Abdur Rouf ,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,M. Farooq Ahmed,,
Citation: II ADC (2005) 473
Case Year: 2005
Appellant: Mohsen Jute Mills Ltd.
Respondent: Labour Court
Subject: Labour Law, Employment & Service,
Delivery Date: 1998-4-19
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Mohammad Abdur Rouf J
Mohsen Jute Mills Ltd.
Chairman, Labour Court, Khulna and another
April 19, 1998.
The Employment of Labour (Standing Orders) Act, (VIII of 1965)
Section 16 of the Act has vested an authority in the employer to discharge an employee when he is physically incapable of serving the employer or suffers from continued ill health or for such other reason not amounting to misconduct. In such cases the employee shall be entitled to certain financial benefits. ……...(12)
Aftab Hossain, Advocate-on-Record - For the Appellant.
Faruque Ahmed, Advocate-on-Record - For respondent No. 2.
Not represented - Respondent No. 1.
Civil Appeal No. 113 of 1997
(From the Judgment and Order dated 6.8.96 passed by the High Court Division in Writ Petition No. 3684 of 1992)
Mohammad Abdur Rouf J.
1. This appeal, following leave has been preferred by the respondent-appellant Mohsen Jute Mills Ltd. against the judgment and order dated 6.8.96 passed by a Division Bench of the High Court Division in Writ Petition No. 3684 of 1992 discharging the Rule.
2. Respondent No. 2 was a permanent senior clerk of the appellant's mill. Due to his physical incapacity the mill authority on 27.12.89 discharged him from service under Section 16 of the Employment of Labour (Standing Orders) Act, 1965 briefly, "the Act". After serving a grievance notice under Section 25(1) (a) of the Act he instituted Complaint Case No.11 of 1990 in the Labour Court, Khulna under Section 25 (b) thereof stating, inter alia, that till 1985 he had a fair service record. In 1986 his mother died and his younger brother also died in a serious accident. Due to several such family troubles he was attacked with serious diseases. On several occasions he had to avail of leave on medical ground for treatment and rest. Lastly on 10.12.89 he again fell ill and by sending a leave application with a medical certificate, he prayed to the authority, for one month's leave. On 9.1.90 he went to the mill to join his service with a fitness certificate from a doctor dated 8.1.90 but the concerned authority did not allow him to join. They supplied him instead with the impugned letter of discharge from service dated 27.12.89. The said order of discharge having been passed without giving him any chance to show cause is illegal and void.
3. The appellant contested the case before the Labour Court by filling a written objection denying the case of respondent No. 2 stating, inter alia, that the case was not maintainable and that respondent No. 2 due to continuous ill health became incapable of working which is evident from his service record. In 1986, 1987, 1988 and 1989 he remained absent from service on medical grounds for 76 days, 69 days, 131 days and 211 days respectively. By an office memo dated 28.1.89 the concerned authority issued a notice of caution against him for warning that action will be taken against him in accordance with law for any future absence from duty giving a statement of his above mentioned absence from duty since 1986. Even after receipt of the said notice he prayed for one month's leave on 10.12.89 on medical ground. Ultimately in the greater interest of the mill he was discharged from service under section 16 of the Act, as he had become incapable of working due to physical incapacity.
4. Respondent No. 2 examined himself as P.W. 1 and the mill authority examined one witness as O.P.W 1 in support of their respective cases.
5. The Labour Court by judgment and order dated 13.2.92 allowed the aforesaid case and set aside the order of discharge with a direction to reinstate respondent No. 2 within 60 days from date with 40% arrears of salary. The Labour Court held that the mill authority did not examine respondent No.2 by a doctor to establish that he had become physically incapable of doing service and that he had been illegally discharged from service without giving him any opportunity of showing cause before taking the impugned action.
6. The appellant called in question the said judgment of the Labour Court in the aforesaid writ petition under Article 102 (2) (a) (ii) of the Constitution and obtained a Rule Nisi. In discharging the said Rule by the impugned judgment a Division Bench of the High Court Division held that the concerned authority having failed to prove the physical incapacity of respondent No. 2 the Labour Court rightly set aside the impugned order of discharge.
7. Leave was granted to consider whether the learned Judges of the High Court Division were justified in holding that for discharging a worker under Section 16 of the Act, notice under Section 18 thereof is necessary. Secondly, whether the learned Judges of the High Court Division erred in not holding that respondent No. 2 was legally discharged from service under the Act for physical incapacity in view of the admitted position that he had been absent from service for 211 days out of 365 days in the year 1989.
8. Mr. Md. Aftab Hossain, learned Advocate-on-Record appearing for the appellant submits that under the Act the employer has an authority under Section 16 of the Act to discharge an employee for physical or mental incapacity or continued ill health. Moreover, before exercising such authority the employer gave sufficient notice on 20.8.89 to respondent No. 2 mentioning his past record since 1986 with a note of caution that his future absence from service on the identical ground would compel the authority to take action against him in 'accordance with law. In that notice the authority gave an account in details of the leave respondent No. 2 had so far availed of on medical ground since 1986. Respondent No, 2 never questioned the correctness of the account mentioned by the employer in the said notice. Mr. Aftab Hossain therefore submits that neither the Labour Court nor the High Court Division was correct in holding that respondent No. 2 had been discharged from service by the appellant without giving him any opportunity of explaining his alleged physical incapacity.
9. Mr. Faruque Ahmed, learned Advocate-on-Record appearing for respondent No. 2 on the other hand submits that the Labour Court on consideration of both oral and documentary evidence, adduced by respondent No. 2, having rightly held that the ground of discharge from service on his physical incapacity was not established or proved the learned judges of the High Court Division did not commit any wrong in upholding the judgment of the Labour Court.
10. Section 16 of the Act runs as follows:
16. Discharge from service.- A worker may be discharged from service for reasons of physical or mental incapacity or continued ill health or such other reasons not amounting to misconduct:
Provided that a worker having completed not less than one year of continuous service, so discharged, shall be paid by the employer compensation at the rate of thirty days wages for every completed year of service or for any art thereof in excess of six months, or gratuity, any, whichever is higher.
Explanation.- For the purpose of calculation of wages under this section, wages shall mean the average of the basic wages and dearness allowance, if any, paid to the worker during the period of twelve months immediately preceding the date of discharge.
11. Evidently, Section 16 of the Act has vested an authority in the employer to discharge an employee when he is physically incapable of serving the employer or suffers from continued ill health or for such other reason not amounting to misconduct. In such cases the employee shall be entitled to certain financial benefits.
12. In the instant case the appellant on 20.8.89 gave notice to respondent No. 2, already mentioned earlier, giving an account in details of the leave he had already availed on medical ground since 1986 till issuance of the said notice, but Respondent No. 2 did not dispute that he had not availed of such leave on medical ground. Moreover, it appears that on receipt of the grievance notice under Section 25 of the Act the mill authority asked Respondent No. 2 to appear in person before them but he did not avail of that opportunity. Besides, in the discharge order the concerned authority gave a detailed account of the conduct of respondent No. 2 in availing of leave frequently since 1986 till he was discharged from service on 27.12.89. Respondent No. 2 did not dispute the correctness of such statement of the mill authority. It can safely be said that the mill authority had sufficiently complied with the rule of natural justice before the impugned order of discharge was passed. It is also evident from the report of the medical officer of the Mill dated 5.12.89, annexed with the paper book, that at the relevant time Respondent No. 2 had been suffering from vertigo and headache with general weakness for a prolonged period and due to such decease he was unable to maintain posture and continue with his duty. He was accordingly advised for taking rest for a long period. It was, however, the case of respondent No. 2 that by producing a fitness certificate from a doctor on 8.1.90 he had gone to the mill on 9.1.90 to join his service but he was not allowed. Respondent No. 2 did not examine the doctor in support of his claim that at the relevant time he was fit to continue in service.
13. Mr. Md. Aftab Hossain next submits that admittedly respondent No. 2 remained absent from duty in the year 1989 for 211 days out of 365 days which fact alone is sufficient to hold that he was physically incapable of continuing in service. In reply Mr. Faruque Ahmed submits that respondent No. 2 had been serving the mill for a long time and in consideration of his long service the authority was not justified to discharge him from service for availing leave of 211 days in the year 1989 on medical ground.
14. It is unconscionable that an employee even after availing 211 days leave out of 365 days of the year applied on 10.12.89 for another one month's leave on identical medical ground inspite of the caution notice issued by the employer on 20.8.89. It cannot be said that even then the employee should be treated by the employer as physically fit to serve the employer.
15. Neither the Labour Court nor the High Court Division specifically took note of such abnormal conduct of respondent No. 2 in setting aside the impugned order of discharge.
16. For the reasons stated above we have no hesitation to hold that the learned Judges of the High Court Division erred in not holding that the appellant had rightly discharged respondent No. 2 from the service under Section 16 of the Act.
17. We find substance in this appeal. It is allowed without however, any order as to costs. Both the judgments of the Labour Court as well as of the High Court Division are set aside.