Pubali Bank Limited Vs. Chairman, First Labour Court, Dhaka, II ADC (2005) 12

Case No: Civil Appeal No. 7 of 1998

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Salahuddin Ahmed,A.K.M. Shamsul Karim,,

Citation: II ADC (2005) 12

Case Year: 2005

Appellant: Pubali Bank Limited

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 2004-7-20

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
MM Ruhul Amin J
Md. Tafazzal Islam J
 
Pubali Bank Limited
...........................Appellant
Vs.
The Chairman, First Labour Court, Dhaka and another
..................Respondents
 
Judgment
July 20, 2004.
 
Penal Code (XLV of 1860)
Section 409
The order of dismissal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the materials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dismissal of the respondent No. 2 was not legal.  …….….. (9)
 
Since the departmental proceeding as well as the criminal proceeding were flawed and the order of the dismissal of the Respondent No.2 being based on the materials collected against him in flawed proceeding, as such, it cannot be said that the Labour Court was not correct in making the order of reinstatement of the respondent No. 2 with back wages.  ……… (11)
 
Lawyers Involved:
Salahuddin Ahmed, Advocate, instructed by Md. Nawab Ali, Advocate-on-Record-For the Appellant.
A.K.M. Shamsul Karim, Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record-For Respondent No. 2.
Not represented-Respondent No. 1.
 
Civil Appeal No. 7 of 1998
(From the Judgment and Order dated May 8,1997 passed by the High Court Division in Writ Petition No. 1905 of 1990).
 
JUDGMENT
Md. Ruhul Amin J.
 
The appeal by leave is against the judgment and order dated May 8, 1997 of a Division Bench of the High Court Division in Writ Petition No. 1905 of 1990 dis­charging the Rule obtained against the judg­ment and order dated June, 2, 1990 of the 1st Labour Court, Dhaka passed in Complaint Case No. 140 of 1984 allowing the same and there­upon setting aside the order of dismissal dated 21.8.1984 and making direction to the appellant (second party before the Labour Court) to rein­state the Respondent No. 2 (first party before the Labour Court) in the service in his former post with full back wages.
 
2. The Respondent No. 2 filed the afore­mentioned Complaint Case stating, inter alia, that on 1.6.1971 he was appointed as Godown Inspector by the appellant and later on he was promoted to the post of Inspector of advances on 29.11.1977 with effect from 1.12.1977 with terms and conditions of service to that of previ­ous post, that the appellant served on the Respondent No. 2 charge sheet on 8.3.1979 and he replied to that denying the allegation made in the charge-sheet, that he was placed under sus­pension on 20.6.1979 that he was served with two charge sheets, one was of 8.10.1979 and the other was of 19.5.1982, that the Respondent No. 2 replied to the allegations made in the said two charge sheets and claimed to be innocent, that the appellant appointed an Inquiry officer to inquire into the charges framed against the Respondent No. 2 but the Inquiry Officer did neither held any inquiry of the charges leveled nor examined any witness to prove the charges leveled against Respondent No. 2 in his pres­ence, that Respondent No.2 was not allowed to cross-examine the witness examined by the appellant and that Respondent No. 2 was not given proper opportunity to defend himself, that Inquiry officer did not find anything against the Respondent No.2 and the charges leveled were not established against the Respondent No. 2 that the appellant dismissed the Respondent No. 2 on 21.8.1984 and he received the said order of dismissal on 30.8.1984, that Respondent No. 2 sent grievance petition as against the order of dismissal by registered post on 11.9.1984 and also by special messenger, that the appellant did not reply to his grievance petition nor heard him.
 
3. The appellant contested the complaint case by filing written objection denying the material averments made in the petition of com­plaint and stating, inter alia, that the Respondent No.2 was appointed by the appel­lant as Godown Inspector on 1.6.1971 and that on 1.12.1977 he was promoted to the rank of Inspector of advances, that the Respondent No.2 was charge sheeted on 8.10.1979 and 19.5.1982 for (i) defying and disobeying the order of controlling authority, (ii) for creating shortfall in the stock of goods pledge to the Bank by the borrowers, (iii) negligence of duties and (iv) committing other misconducts, that all charges were duly inquired into in accordance with law and service Rules and that on the basis of the enquiry report Respondent No. 2 was dismissed with approval from the appropriate authority, that Respondent No. 2 is an officer entrusted with the duty of the admin­istration and managerial nature and hence being not a worker complaint case under the Employment of Labour (standing Orders) Act is not maintainable, that enquiry was held in accordance with law by providing opportunity to the Respondent No.2 to defend himself, that Inquiry officer found the Respondent No.2 guilty of the charges leveled against him.
 
4. The Labour Court on the findings that the first party was a worker under the second party as Inspector of advances and he was not an offi­cer under the second party Pubali Bank and hence the Complaint case is quite maintainable, that on perusal of the evidence of P.W.1 and D. W. 1 the Labour Court was of the opinion that witnesses for the prosecution were examined in the absence of the first party and those first party was not given any chance to defend him during the enquiry and to cross-examine the witnesses examined by the second party on three occasions and thus the Enquiry officer did not held enquiry against the first party in accor­dance with law and the first party was not given any chance to defend him during the enquiry and to cross-examine the witnesses examined by the second party and as such the enquiry held against the first party by the enquiry offi­cer was not fair and proper and consequently the order of dismissal passed by the second party dismissing the first party from service was not legal and tenable under the law and accord­ingly first party is entitled to be reinstated in service in his former post under the second party with full back wages, allowed the com­plaint case.
 
5. The appellant as against the judgment and order of the Labour Court moved the High Court Division by filing Writ Petition N. 1905 of 1990,
 
6. It was contended by the appellant before the High Court Division that the Labour Court made the decision on guess without considering the fact that there was ample evidence on record to find that the respondent No.2 was guilty of the offence charged and that the Enquiry officer followed the procedure laid down in the Employment of Labour (standing Orders), Act (The Act) in finding the respondent No.2 guilty of the charges and that Enquiry officer held enquiry in presence of the respondent No. 2 and afforded him all opportunity to cross-examine the witness and also to defend him that Labour court was in error in holding that the complaint case was maintainable since there was suffi­cient materials on record to show that the sec­ond party was an officer holding managerial as well as supervisory powers, that the judgment of the Labour Court is not sustainable since the same has been made disregarding the estab­lished principle that no court shall interfere with the findings of domestic enquiry unless gross illegality purported to have been committed is noticed and that there is nothing on record to show that any gross illegality has been commit­ted in holding enquiry against the Respondent No.2 causing prejudice to him in any way, that respondent No.2 without any plausible cause remained absent during enquiry and as such he can not be allowed to take benefit out of his default.
 
7. The High Court Division discharged the Rule on the findings that the Labour Court has rightly found that the case filed by the respon­dent No.2 under Section 25(1) (b) of the Act was maintainable, that respondent No.2 was not provided with opportunity to defend himself and thus there was infringement of his funda­mental right as envisaged under Articles 27 and 31 of the Constitution and as such Labour Court has correctly held that the findings of the Enquiry officer was bad in law, that the way enquiry was held the same offended the princi­ple of natural justice, that Writ-Petitioner has failed to prove that the Respondent No.2 was not a worker.
 
8. Leave was granted to consider the sub­mission that the judgment dated November 10, 1991 passed by the Special Judge, Dhaka in Special Case No. 254 of 1983 convicting the respondent No.2 under Section 409 of the Penal Code read with Section 5(2) of Act II of 1947 and sentencing him to 10 years simple impris­onment with a fine of Tk. 5 lakhs in default to suffer simple imprisonment for further 5 years was not brought to the notice to the High Court Division and that the basis of allegation in the departmental proceeding was the same as in the criminal case and as such whatever may have been the irregularity in the departmental pro­ceeding as found by the Labour Court, the per­son who has been convicted by a Criminal Court could not be foisted upon an unwilling private employer who has lost trust upon the said person. It was also submitted that in view of the judgment of the criminal court which was passed upon evidence collecting in presence of the accused the order of the Labour Court directing payment of full wages cannot be justi­fied.
 
9. It is seen from the materials on record that enquiry against the respondent no.2 by the appellant was not one fulfilling the requirement of law, or in other words enquiry was held by the appellant without affording opportunity to the respondent No.2, either to cross-examine the witness examined by the department or to put forward the case of the respondent No.2 and thus the High Court Division as well as Labour Court held that the enquiry that was held in respect of the charges  leveled against the respondent No. 2 was not legal and that there has been violation of the principle of natural Justice. On our perusal of the materials on record we are of the view that enquiry that was intimated to inquire into the allegations made in the charge sheet was flawed one and as such the enquiry report being not legal, the order of dis­missal passed on the basis thereof was not legal, or in other words order of dismissal having been passed taking into consideration the mate­rials collected through flawed enquiry, the order of dismissal was not sustainable in law or in other words dismissal of the respondent No.2 was not legal.
 
10. At the time of granting leave it was sub­mitted that inadvertently the appellant did not bring to the notice of the High Court Division that the respondent No.2 was convicted by the court of Special Judge, Dhaka in Special Case No. 254 of 1983 under section 409 of the Penal Code and section 5(2) of Act II of 1947 and sentenced to 10 years simple imprisonment with a fine of Tk. 5 lakhs in default to suffer simple imprisonment for further 5 years and as such whatever "may have been the irregularity in the departmental proceeding as found by the Labour Court" the respondent No.2 "could not be foisted upon an unwilling private employer who has lost trust upon the said person."
 
11. It may be mentioned that during the pendency of the appeal, the criminal appeal, Criminal Appeal No. 2111 of 1999, which the respondent No.2 preferred against his conviction and sentence in Special Case No. 254 of 1983, has been disposed of on May 17, 2004 by the High Court Division and the High Court Division has allowed the Criminal appeal of respondent No.2 upon setting aside the convic­tion and sentence passed by the Court of Special Judge in Special Case No. 254 of 1983. We have the advantage to look into the judg­ment of the High court Division at the time of hearing of the appeal and there from it is seen that the criminal proceeding that was initiated under Section 409 of the Penal Code and sec­tion 5(2) of Act II of 1947 was also flawed and because of that the High Court Division set aside the conviction and sentence passed on the respondent No.2 by the Court of Special Judge in Special Case No. 254 of 1983. It was the con­tention, at the time of granting leave to appeal, of the learned counsel for the appellant that whatever irregularities there were in the depart­mental proceeding as noticed by the Labour Court but because of the judgment of the crim­inal case order of the Labour Court for rein­statement of the respondent No.2 with back wages was not a justified one. The merit of this submission has disappeared on the acquittal of the Respondent No.2 from the charges leveled against him in Special Case No. 254 of 1983. Since the departmental proceeding as well as the criminal proceeding were flawed and the order of dismissal of the Respondent No. 2 being based on the materials collected against him in flawed proceeding, as such, it cannot be said that the Labour Court was not correct in making the order of reinstatement of the respondent No. 2 with back wages. The submis­sions for consideration where of leave was obtained would have been of merit, had the pro­ceeding, departmental and Criminal were not flawed and if the Criminal appeal had not ended in the acquittal of the respondent No.2 The con­tentions that were made at the time of hearing of the petition for leave to appeal and in the background thereof leave was granted do no longer hold good because of setting aside of the conviction and sentence that was passed by the Court of Special Judge in Special Case No. 254 of 1983 upon allowing of the appeal.
 
12. In the background of the materials on record it is seen that the Respondent No. 2 was dismissed from the service of the appellant on the basis of the flawed, departmental proceed­ing and criminal proceeding and consequently as the order of dismissal so made as was not legal the only conclusion that follows is that respondent No. 2 was not dismissed from the service of the appellant on august, 21, 1984. In that state of the matter the Labour Court was quite correct in making the order for reinstate­ment of the respondent No. 2 and for payment of back wages.
 
13. It has been represented by the learned Counsel of the respondent No.2 that by the time the Respondent No.2 has attained the age of retirement as per rules of the appellate. In that state of the matter the appellant is directed to pay the respondent No.2 his dues i.e. back wages as if he was never out of employment of the appellant till the attainment of the age of retirement as well as to pay the pension benefits that has accrued to the respondent No.2 having and gone on retirement as the employee of the appellant.
 
In the background of our discussions made hereinabove we do not find any merit in the appeal.
 
The appellant is directed to pay the respon­dent No.2 his back wages and the pension ben­efits.
 
The appeal is dismissed with cost.
 
Ed.