Sabita Dutta Vs. Manager, Cinema Palace Chittagong and another, 51 DLR (AD) (1999) 215

Case No: Civil Petition for Leave to Appeal No. 656 of 1997

Judge: Latifur Rahman ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,,

Citation: 51 DLR (AD) (1999) 215

Case Year: 1999

Appellant: Sabita Dutta

Respondent: Manager, Cinema Palace Chittagong

Subject: Labour Law,

Delivery Date: 1998-6-7

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Latifur Rahman, J.
Md. Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.
 
Sabita Dutta
………………….Petitioner
Vs.
Manager, Cinema Palace Chittagong and another
…......................... Respondent
 
Judgment
June 7, 1998.
 
The Industrial Relations Ordinance, 1969
Section 34
The Employment of Labour (SO) Act, 1965
Section 25
High Court Division rightly held that the petitioner (a retrenched gate-keeper of a Cinema hall) being not a worker as defined under the Industrial Relations Ordinance, 1969 her application does not lie before the Labour Court under section 34 of the said Ordinance and the same could not be converted into an application under section 25 of the Employment of Labour (Standing Orders) Act, 1965 as no statutory compliance under that section was made……….(8 & 9)
 
Cases Referred to-
James Finlay Ltd. vs. Chairman, Second Labour Court Dhaka 33 DLR (AD) 58.
 
Lawyers Involved:
Dr. Kamal Hossain, Senior Advocate, (Subrata Chowdhury, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner.
AKM Halim, Advocate (appeared with the leave of the Court), instructed by AKM Shahidul Huq, Advocate-on-Record — For the Respondent No. 1.
Not Represented —Respondent No. 2.
 
Civil Petition for Leave to Appeal No. 656 of 1997.
(From the Judgment and order dated 01-06-97 passed by the High Court Division in Writ Petition No. 1778 of 1991)
 
JUDGMENT
Latifur Rahman J.
 
This petition for leave to appeal is against the judgment and order dated 1-6- 97 passed by a Division Bench of the High Court Division in Writ Petition No. 1778 o 1991 (Dhaka)/Writ Petition No. 47 of 1989 (Chittagong), making the Rule absolute and thereby reversing the decision and award dated 22-1-86 passed by the Chairman, Labour Court, Chittagong in Industrial Dispute Case No. 835 of 1983 under section 34 of the Industrial Relations Ordinance, 1969 allowing the case of the petitioner.
 
2. The case of the petitioner Mrs. Sabita Dutta is that, she was a Gate Keeper (Lady) under respondent No. 1 in the Cinema Palace, Chittagong since 1973. She worked in the Cinema hail upto 26- 5-80 till the cinema hall was burnt by fire. After reconstruction of the cinema hall she went to join in her duty but she was not allowed to join. Hence, she filed the case before the Labour Court at Chittagong under section 34 of the Industrial Relations Ordinance 1969.
 
3. Respondent No. 1 in his written statement before the Labour Court stated that the post of gate keeper (lady) was abolished from the cinema hail as the management abolished the separate female class in the cinema hall. Hence the petitioner was retrenched after giving her lawful dues.
 
4. Before the Labour Court respondent No.1 did not appear. Consequently the Labour Court after taking the evidence of the petitioner allowed the case. Subsequent thereto, respondent No.1 filed an application under Order 9 rule 13 of the Code of Civil Procedure for restoration of the labour case. But the same was dismissed. Thereafter respondent No. 1 filed the writ petition challenging the maintainability of the case under section 34 of the Industrial Dispute Ordinance, 1969 contending that the petitioner was not a ‘worker’ within the meaning of Section 2(XXVIII) of the said Ordinance and, as such, an application under section 25 of the Employment of Labour (Standing Orders) Act, 1965 was maintainable.
 
5. Before the High Court Division the petitioner did not appear.
 
6. The learned Judges of the High Court Division on a reference to the decision in the case of James Finlay Ltd vs Chairman, Second Labour Court, Dhaka, 33 DLR (AD) 58 held that the case before the Labour Court was not maintainable and consequently the judgment of the Labour Court was declared to have been passed without any lawful authority and is of no legal effect.
 
7. Dr. Kamal Hossain, learned Advocate appearing for the employee petitioner, submits, first, that the learned Judges of the High Court Division on wrong interpretation of the reported decision in 33 DLR (AD) 58 held that the petitioner’s case is not maintainable. He secondly, submits that this is a fit case which should be remanded to the Labour Court for a decision as to whether the application under section 34 of the Ordinance can be converted into an application under section 25 of the Employment of Labour (Standing Orders) Act, 1965.
 
8. In the Industrial Relations Ordinance, 1969 “worker” has been defined in section 2(XXVIII), wherein it refers to a dismissed or retrenched employee in course of an industrial dispute. There being no case of such a nature it is palpably clear that the application under section 34 of the Ordinance was not maintainable. Hence, the learned Judges of the High Court Division rightly held that the petitioner being not a worker as defined under the Ordinance her application does not lie before the Labour Court, In that, reported decision the definition of worker as given in both the statutes have been clearly noticed wherein it has been said that an individual worker after compliance with the formalities as contemplated under section 25 (1)(a)(b) of the Standing Orders Act, 1965 can maintain an application before the Labour Court. The principle of that decision applies with full force in this case. There is hardly any scope to distinguish this case with the reported decision.
 
9. With regard to the last submission of the learned Advocate for the petitioner as to remitting the case for converting the same into one under section 25 of the Standing Orders Act, it can be said that in the absence of compliance with the statutory requirements as contemplated under section 25 of the Act of 1965 no application can be converted from section 34 of the Ordinance. Hence, there is no scope for remitting the case to the Court below as argued by the learned Advocate for the petitioner.
 
10. Further, there was no argument, or material before the High Court Division for providing such opportunity of converting the application before the Labour Court. Consequently, the petition is devoid of any substance.
It is, therefore, dismissed.
 
Ed.