Siddiqur Rahman Vs. Chairman, Divisional Labour Court and others, 59 DLR (2007) 49

Case No: Writ Petition No. 667 of 2001

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Tufailur Rahman ,,

Citation: 59 DLR (2007) 49

Case Year: 2007

Appellant: Siddiqur Rahman

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 2006-3-12

 
Supreme Court
High Court Division
(Special Original Jurisdiction)
 
Present:
Md. Muzammel Hossain, J.
Farid Ahmed, J.
 
Siddiqur Rahman
……………………………Petitioner
Vs.
Chairman, Divisional Labour Court and others
…………………..……….Respondents
 
Judgment
March 12, 2006.
 
Labour Dispute Act, 1935
Section 9 (6)
The legislature has authorized the Labour Court to function in the absence of a member who is absent from any sitting of the Court. This situation indicates directly that the advice is not intended to be mandatory but directory.
Industrial Relations Ordinance (XXIII of 1969)
Section 35 (1)
Total absence of the members from the entire proceedings is a violation of sub-section (7) of section 35 and this violation renders the decision of the Labour Court null and void. 
 
Cases Referred To-
General Manager, Jamuna Oil Co. Ltd vs Golap Rahman and another 34 DLR (AD) 166 and Aminul Islam and others vs James Finlay and Co. Ltd 26 DLR (AD) 33; Project-in-Charge, Paruma (Eastern) Ltd vs Mr Aminur Rahman Khan and another 31 DLR 124; General Manager, Jamuna Oil Co. vs Golap Rahman 34 DLR (AD)166; Abdul Sattar vs Chairman, Labour Court Chittagong and another 1 MLR 199.
 
Lawyers involved:
Md. Nawab Ali, Advocate—For the Petitioner.
Tufailur Rahman with Israt Jahan, Advocates—For the Respondent No. 2.
Zaman Akhter, Deputy Attorney-General with Sk Taimur Reza Hasan, Assistant Attorney-General—For the Respondents.
 
Writ Petition No. 667 of 2001
 
JUDGMENT
 
Md. Muzammel Hossain J.
 
This Rule Nisi was issued at the instance of the petitioner calling upon the respondents to show cause as to why the decision and order of the Chairman of the Labour Court, Khulna passed in Case No, C9 of 1997 (Annexure-A) should not be declared to have been made without lawful authority and to be of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
2. The petitioner was initially appointed on 26-1-1977 as Bag Checker worker under the respondent No. 2 company and thereafter he was promoted to the post of Harakal helper. The petitioner being a Trade Union leader of the respondent mill was elected as the Vice-President of the Union in the session 1993-95 but he could not succeed in the election held in 1995. Because of his participation in different elections he had disputes with the ruling CBA leaders and because of the conspiracy of the respondent Mill Authority and some leaders of the union he was dismissed from service on 5-3-1994. Subsequently, he was reinstated on 6-12-1994. Though the petitioner was discharging his duty with sincerity, honesty and devotion the respondent No.2 Mill Authority raised false allegations against him on 12-8-1996. The petitioner gave reply to the charge framed by the respondent No. 2 Mill Authority. Without considering his reply the Mill Authority constituted an Enquiry Committee for investigation of the matter. The Enquiry Committee was not neutral. The petitioner was not given any opportunity to defend himself. On the basis of false assurance given by the Enquiry Committee the petitioner put his signature on some blank papers. The Enquiry Committee having used the said blank papers submitted report. The respondent No. 2 Company on the basis of the Enquiry Report dismissed him from service on 15-2-1997.
 
3. Being aggrieved by the order of dismissal the petitioner sent a grievance petition to the respondent No. 2 employer by registered post dated 28-2-1997. But the respondent No.2 company did not cancel the order of dismissal. Being aggrieved by the order of dismissal the petitioner filed a case being Case No. C9 of 1997 before the Labour Court.
 
4. The respondent No. 2 Company contested the case by filing written objection before the Labour Court denying material allegations made in the case stating, inter alia, that the petitioner used to work as Haracal Machine Man in 'Ka' Shift in Mill No. 2 of the respondent No. 2 Company and for misconduct a charge was framed against the petitioner on 12-8-1996. Since his reply to the show cause notice was not satisfactory the respondent Company formed one-member Enquiry Committee to investigate the allegations raised against the petitioner. The petitioner was given enough opportunity to defend himself before the Enquiry Committee. He crossexamined witnesses of the respondent No. 2 Company. He also examined 2 witnesses on his behalf including himself. The petitioner put his signature in all the documents of the proceedings before the Enquiry Committee and the allegations raised against the petitioner was proved and accordingly, he was dismissed from service on 15-2-1997. At the time of dismissal of the petitioner his first service record which was not clean was taken into consideration. He had a bad record of service. He was guilty of negligence for unauthorised absence and also for threatening his colleagues and superior officers using filthy language. In some cases he was exonerated and in some other cases disciplinary actions were taken. He was dismissed on 5-3-1994. But on the advice of the Jute Minister he was reinstated but even thereafter there was no change in the attitude or conduct of the petitioner. On 12-8-1996 he wanted to assault Tally Clerk Shahjan Ali and on 10-9-1996 he uttered filthy words against Abdul Khaleque, Deputy General Manager and for the said reasons charge was framed against him and consequently he was dismissed. The order of dismissal was legal and it was passed in accordance with law and, as such, the case is liable to be dismissed.
 
5. According to the report of the Enquiry Committee, the petitioner was found guilty and he was legally dismissed from service. At the time of trial the first party petitioner examined himself as PW 1 and he also examined the witnesses and crossexamined the witnesses of the 2nd party respondents. The Chairman, 2nd Labour Court, Khulna by his decision and order dated 4-2-2001 (Annexure A) dismissed the case and affirmed the order of dismissal.
 
6. Being aggrieved by the impugned decision and order dated 4-2-2001 passed by the Chairman, Divisional Labour Court, Khulna the petitioner preferred the writ petition and obtained the instant Rule from this Hon'ble Court.
 
7. The respondent No. 2 company contested the Rule by filing Affidavit-in-Opposition denying the material allegations made in the petition stating, inter alia, that the writ petition is not maintainable in its present form. The respondent No. 2 employer have complied with the requirements of law including the principles of natural justice by affording the petitioner an opportunity of being heard and he was allowed examination and cross-examination of the witnesses and, as such, he cannot have any grievance against an order passed by the Labour Court. The inquiry was held by duly constituted Enquiry Committee and the allegations were duly enquired into and the inquiry was held in accordance with law and the Enquiry Committee submitted its report to the authority. The Labour Court rightly found that the enquiry was held impartially and properly giving the petitioner enough opportunity of self-defence. The petitioner having never raised any objection regarding the conduct of the inquiry by duly constituted Enquiry Committee it does not lie in his mouth to question the validity of the Enquiry Committee. The Labour Court rightly found that the inquiry was conducted properly. The Labour Court adjudicated the matter in accordance with the provisions of law. The Labour Court was duly constituted and the members constituting the Labour Court were consulted as is evident from the judgment itself. The mere omission of the names of the members constituting the Court does not establish the fact that the Labour Court was not duly constituted. In the judgment it has been stated that the members were consulted. Had the court not been duly constituted the parties would have brought the same to the notice of the Court and refrained from proceedings any further. But having participated in the proceeding of the Court it is not proper on the part of the petitioner to question the validity of the proceedings. The grounds taken in the petition are misconceived and without any substance and, as such, the Rule is liable to be discharged.
 
8. Mr. Md. Nawab Ali, the learned Advocate appearing for the petitioner, submits that impugned decision and order passed by the Chairman, Divisional Labour Court, Khulna is wrong and misconceived in law and that the Chairman of the Labour Court wrongly relied upon the order of dismissal made by the respondent No. 2 without compliance with the provisions of law and, as such, the impugned decision and order is liable to be set aside and the Rule is liable to be made absolute. He then submits that the Labour Court having been constituted and the proceedings having been proceeded in violation of section 35 of the industrial Relations Ordinance 1969 the impugned decision and order is liable to be declared to have been passed without lawful authority and to be of no legal effect and the Rule is liable to be made absolute. In support of his contention Mr. Nawab Ali has cited the decision in the case of Bangladesh Steamer Agents' Association vs. Bangladesh & ors. reported in 31 DLR (AD) 272.
 
9. Mr. Tufailur Rahman, the learned Advocate appearing for the respondent No. 2 company, submits that the Enquiry Committee, having been constituted in accordance with law and the said committee having complied with the requirements of law, allowed the petitioner to examine and cross-examine the witnesses and thereby submitted the Enquiry Report finding the guilt of the petitioner and the respondent No. 2 Company having considered the reply to the show cause notice of the petitioner found him guilty of misconduct and negligence and accordingly, dismissed him from service and, as such, the Labour Court rightly found the petitioner guilty of the charge framed against him and dismissed him from the service of the company. He then submits that the Labour Court having been constituted with the Chairman and 2 members as per provisions of section 35 of the Industrial Relations Ordinance, 1969 and proceeded in accordance with law, there is no scope for this Hon'ble Court to interfere with the decision and order passed by the Labour Court. He contends that the decision reported in 31 DLR (AD) 272 does not help the petitioner since the Enquiry Committee having complied with the provisions of law and giving the petitioner an opportunity of being heard submitted its report. He finally submits that the Labour Court having been constituted in accordance with law passed the order without facing any objection raised by the petitioner and, as such, there is no merit in the submission of the learned Advocate for the petitioner and the Rule is liable to be discharged.
 
10. Mr. Zaman Akhtar, the learned Deputy Attorney-General for the respondents, having adopted the submissions of the learned Advocate for the respondent No. 2, submits that the Rule is liable to be discharged.
 
11. We have perused the writ petition with Annexures, Affidavit-in-Opposition filed on behalf of the respondent No. 2 company and the materials on record.
 
12. On perusal of the impugned decision and order dated 4-2-2001 passed by the Chairman, Divisional Labour Court, Khulna it appears that on the top of the order and decision the name of the Chairman was written and the column of the member was kept blank and the Chairman, Divisional Labour Court had signed the decision and order at the bottom of the same. On careful scrutiny of the judgment it could not be gathered when the members were present in the proceedings of the case before the Labour Court though before the operative part of the decision and order it has been noted by the Chairman, Divisional Labour Court to the following effect: "বিজ্ঞ সদস্যের সংঙ্গে পরামর্শ করা হইয়েছে" On perusal of the impugned decision and order it could not be gathered which member was present in the proceedings of the Labour Court, Khulna in Case No. C9/97. The order dated 17-8-1998 reads as follows:
 
"১৭-৮-৯৮/১৩ উভয় পক্ষ হাজির আছে । বিজ্ঞ সদস্য মোহসীন আহম্মদ ও সর্দার মোতাহার হোসেনকে লইয়া আদালত গঠন করিয়া মামলাটি উম্মুক্ত করা হইল । আগামী ৫-১০-৯৮ তারিখে শুনানী ।"
 
13. From the aforesaid order passed by the Divisional Labour Court it appears that on 17-8­1998 the Labour Court was properly constituted with the required number of members in accordance with the provisions of section 35(2) of the Industrial Relations Ordinance, 1969. Before considering the other issues in the matter, we would like to examine the constitution of the Labour Court i.e. whether the proceeding of the Court was started with the required number of members. In ground No. 5 of the writ petition it has been stated that no member was appointed for deciding the Case No. C9/97 as no name of a member could be found from the heading of the decision and order (Annexure-A) passed by the Labour Court. But on perusal of the order dated 17-8-1998 passed by the Divisional Labour Court we have noticed that the Court was constituted in accordance with law before the commencement of the hearing of the case on 17-8-1998.
 
14. In this context we would like to refer to section 35 of the Industrial Relations Ordinance, 1969 which reads as follows:
 
“35. (1) The Government may, 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 jurisdiction under this Ordinance.
(2) A Labour Court shall consist of a Chairman appointed by the Government and two members to advise the Chairman, one to represent the employers and the other to represent the workmen appointed in the manner hereinafter provided.
(3) A person shall not be qualified for appointment as Chairman unless he has been or is, or is qualified to be a Judge, or Additional Judge of the High Court Division or is a District Judge, or an Additional District Judge.
(4) The Government shall constitute, in the prescribed manner, by notification in the official Gazette, two panels, one of which shall consist of representatives of employers and the other of representatives of the workmen, each consisting of not more than five persons:
Provided the Government shall reconsti­tute such panels after every two years, but the members of the panels, notwithstanding the expiry of the said period of two years, shall continue on the panels till the new panels are constituted and notified in the official Gazette;
(4A) The Chairman shall, for adjudication, enquiry, determination or disposal of a case relating to a specific industrial dispute, select one person from each of the two panels constituted under sub-section (4), and persons so selected, together with the chairman, shall be deemed to have constituted the Labour Court in respect of that industrial dispute:
Provided that the Chairman may select any member from either of the panels as a member of the Labour Court in respect of more than one case pending before the Labour Court.
(5) A Labour Court shall have exclusive jurisdiction to-
 
(a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance;
(b) enquire into and adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by the Government;
(c) try offences under this Ordinance and such other offences under any other law as the Government may, by notification in the official Gazette, specify in this behalf;
(d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law.
(6) Notwithstanding anything contained in the Workmen's Compensation Act, 1923 (VII of 1923) or the Payment of Wages Act, 1936 (IV of 1936), the [Government] may, by notification in the official Gazette, appoint a Labour Court to be, or confer upon it any power or function of, any authority under any of the said Acts, and upon such notification, the Labour Court shall be deemed to be such authority and shall exercise the powers and perform the functions of such authority under the relevant Act.
(7) If any member of the Labour Court is absent from, or is otherwise unable to attend, any sitting of the Court, the proceedings of the Court may continue, and the decision or award may be given in the absence of such member; and no act, proceeding, decision or award of the Court shall be invalid or be called in question merely on the ground of such absence, or on the ground of any vacancy in, or any defect in the constitution of, the Labour Court."
 
15. Section 35 of the Industrial Relations Ordinance enumerates the provisions regarding the constitution and function of the Labour Court. Sub-­section (2) of section 35 provides that a Labour Court shall consist of a Chairman appointed by the Government and two members to be appointed to advise the Chairman. Sub-section (3) of section 35 enumerates the provisions for the qualification of the Chairman who is qualified to be a Judge, or Additional Judge of a High Court or is a District Judge, or an Additional District Judge. But the qualification of the members are not properly spelt out except that one to represent the employer and the other to represent the workmen and the Chairman shall select one member from the panel of the representatives of the workmen and the other member from that of the employers. Sub-section (7) of section 35 of the Ordinance provides that if any member of the Labour Court is absent from, or is otherwise unable to attend, any sitting of the Court, the proceedings of the Court may continue and the decision or award may be given in the absence of such member; and no act, proceedings, decision or award of the Court shall be invalid or be called in question merely on the ground of such absence of the member.
 
16. In order to decide as to the constitution of the Labour Court, functioning of the court in the absence of a member and whether the advice of the members of the court is mandatory, reliance may be placed on two leading decisions of the Appellate Division in the cases of General Manager, Jamuna Oil Co. Ltd vs. Golap Rahman and another reported in 34 DLR (AD) 166 and Aminul Islam and others vs. James Finlay and Co. Ltd. reported in 26 DLR (AD) 33. In the case reported in 26 DLR (AD) 33 the Appellate Division while considering section 9(6) of the East Pakistan Labour Disputes Act, 1965 read with Rule 34 of the Industrial Disputes Rules, 1960 decided that when a member becomes incapable to sit as a member of the Labour Court or ceases to be so, the Chairman of the Court in giving an award is not under any obligation to have such member's opinion. Acceptance of such member's opinion is merely directory not obligatory. There can be no question of having advice of a member who becomes incapable to sit as a member or ceases to be a member of a panel as under both the circumstances the said member will cease to be a member of the court. The Appellate Division held that Rule 34 of the Industrial Disputes Rules provides that the Chairman while giving an award shall consider the advice given to him by the members of the Court, but the said advice will not be binding upon the Chairman in making the award. The advice, if given in writing, will merely be a part of the record and not of the award which will be made by the Chairman himself. Though it is enjoined upon the Chairman to consider the advice given to him, the Rule does not require the Chairman to follow the members to obtain their advice in any manner it is possible. If any member intentionally refuses to give advice the Chairman has got no authority to impose any penalty upon him for his non-compliance with the Rule. The Rule is silent as regards the consequence of noncompliance. This clearly indicates that no special importance is attached to the direction as regards advice. The court also held that under Rule 32(7) of the Industrial Disputes Rules the draft of the award cannot be shown to the member who either becomes incapable to sit as a member or ceases to be a member of the panel. This provision too does not indicate that the advice of the members is indispensable. The Appellate Division further held that under section 9(6) of the Labour Disputes Act, 1965 the legislature has authorised the Labour Court to function in the absence of a member who is absent from any sitting of the Court. This situation indicates directly that the advice is not intended to be mandatory but directory. In this context, the Appellate Division observed as follows:
 
"If the legislature intended the advice of the members to be mandatory, it must have made necessary provisions to meet such eventualities either by reconstitution of the court or by substitution of a member from the panel in the place of the one becoming incapable to sit as a member or ceasing to be a member of the panel. Instead, the legislature has authorised the court to function in the absence of such member. No advice can be sought or obtained from the said erstwhile member. This situation does not indicate that the advice is intended to be mandatory. There is, however, no provision in the Labour Disputes Act, 1965 to penalise a member if he chooses not to give advice or if he intentionally refuses to give advice. It is thus obvious that the Chairman has no control over a member refusing to give advice. In such situation, the prescription in respect of advice of the members will be regarded as intended to be directory as the non-compliance of the Rule as regards advice by the members will cause injustice or inconvenience to the adverse party if such requirements are said to be essential and imperative.
 
We are of the view that the provision regarding advice to be obtained from the member is not mandatory. It is recommendatory, in other words, it is directory.
So, the award if made without any advice from either of the members will not be vitiated if it is otherwise valid."
 
17. The Appellate Division in its decision reported in 34 DLR (AD) 166 have considered the decisions in the cases of National Bank of Pakistan vs. Md. Golam Mostafa reported in 27 DLR 158, Aminul Islam and others vs. James Finlay and Co. Ltd. reported in 26 DLR (SC) 33 and Paruma (Eastern) Ltd. vs. Mr. Aminur Rahman Khan and another reported in 31 DLR 124.
 
18. In the case of National Bank of Pakistan vs. Md. Golam Mostafa reported in 27 DLR 158 at page 161 it has been held that the advice must be tendered and taken into consideration by the chairman before the determination of the case. It has also been held that "any sitting", referred to in sub-­section (7) of the section 35, means one or more than one sitting, but it does not mean all the sittings or, in other words, a total absence. Total absence of the members from the entire proceedings is a violation of sub-section (7) of section 35 and this violation renders the decision of the Labour Court null and void.
 
19. In the case of Project-in-Charge, Paruma (Eastern) Ltd. vs. Mr. Aminur Rahman Khan and another reported in 31 DLR 124 it has been held that sub-section (7) of section 35 appears to be an enabling provision and that when the proceeding of the Labour Court started with the required number of members it may continue in the absence of a member if a member is absent from any sitting. The High Court Division observed:
 
"Sub-section (7) provides for continuation of a proceeding in absence of a member if the proceeding already started with the Chairman and both the members and that the total absence of a member means in effect that the Court has not been duly constituted."
 
20. In the case of General Manager, Jamuna Oil Co. vs. Golap Rahman reported in 34 DLR (AD)166 the Appellate Division of the Supreme Court having considered the provisions of section 9(6) of the Labour Disputes Act, 1965 and section 35(7) of the Industrial Relations Ordinance, 1969 found that the provisions of the former are similar to provisions of the latter. The Appellate Division observed:
 
"From the provisions of section 35 of the Industrial Relations Ordinance, 1969 it would appear that if, after the constitution of the Court, a member is absent from any sitting of the Court such absence will not invalidate the decision of the Court. Expression 'any' that qualifies the word 'sitting' means one or all the sittings of the Court. If, therefore, a member is absent from the sitting of the Court or fails to attend any sitting of the Court after his inclusion in the panel there is no obligation upon the Chairman to obtain his advice. To try to obtain advice from a member who had been partially or wholly absent from the sittings of the Court will itself be meaningless. This, however, does not lead to the conclusion that a Labour Court may proceed to function without any member being present at all. On the other hand, even if a member is absent or ceases to be a member or incapable of sitting as a member, it has been empowered to continue to function. As no obligation has been imposed upon a member to attend the sitting of the Court, no consequence follows his failure to attend the sitting of the Court. What appears to be incumbent is, that a two-member panel was to be created to assist the Court."
 
21. The provision of law is, that a two-member panel will be created to assist the Court. The absence of one member does not render the decision of the Court illegal.
 
22. In the decision reported in 34 DLR (AD) 166 at page 172, the Appellate Division further observed:
 
"What has not been provided in the section itself cannot be provided by the court by stretching the language of the section beyond its normal meaning. Accordingly, the proceeding before the Labour Court cannot be declared to have been illegal."
 
23. The intention of the legislature, as appears from the language employed in sub-section (7) of section 35 of the Ordinance, is that the Court itself either cannot compel the attendance of such member or extract his advice.
 
24. In the case of Abdus Sattar vs. The Chairman, Labour Court, Chittagong and another reported in 1 MLR 199, at page 200, para 6 it has been observed:
 
"Labour Court is constituted with a Chairman and two members to advise the Chairman under section 35(2) of the Industrial Relations Ordinance. Advice tendered by the members is not binding on the Chairman. But the Chairman is to consider the advice in deciding a case. If after considering the advice tendered by the members the Chairman finds the same contrary to law or unreasonable then the Chairman can discard the same. But when the advice tendered by the members is well reasoned and in consonance with law and justice the Chairman should give proper weight to such advice. While discarding well reasoned advice of the members or member the Chairman should give reasons for not accepting the same."
 
25. In the instant case, we have observed that the Labour Court was properly constituted by order No. 13 dated 17-8-1998 but it could not be gathered from the impugned decision and order dated 4-2­2001 and from the Lower Court Records whether any of the members or both the members were present in the proceedings of the Court till the delivery of the decision and order dated 4-2-2001. In the certified copy of the impugned decision and order annexed to the writ petition as AnnexureA it is found that the name of the Chairman Md. Momin Ullah was written on the top but the name of the member present was kept blank and at the bottom of the said decision and order the Chairman Md Momin Ullah put his signature. But from the original decision and order dated 4-2-2001 of the lower court records we find that at the top sheet of the same the name of the Chairman Mominullah along with a member Moazzam Hossain were shown to have been present on the date of delivery of decision and order. It appears that the Labour Court was properly constituted with the Chairman and 2 members namely, Mohsin Ahmed and Sarder Motahar Hossain on 17-8-1998 but the decision and order dated 4-2-2001 was given by the Labour Court constituted with the Chairman Mominullah and the member Moazzam Hossain. In that view of the matter how it could be accepted that the Labour Court was properly constituted with the member Moazzam Hossain in the midst of a part heard matter without the constitution of the Labour Court afresh with the Chairman and two members including Moazzam Hossain at the beginning of the proceeding in accordance with the provisions of section 35 and rule 36. From the four corners of the order sheets of the lower Court records we could not find out the constitution of the Labour Court with a member named Moazzam Hossain rather, from the certified copy of the decision and order annexed to the writ petition (AnnexureA) we find that after the name of the Chairman Mominullah, the name of the member was kept blank. This has led to the conclusion that the Labour Court was not duly constituted with the said member Moazzam Hossain. According to section 35(7), if any member of the Labour Court is absent from, or is otherwise unable to attend any sitting of the Court, the proceedings of the Court may continue and the decision or award may be given in the absence of such member. In the case reported in 31 DLR 124 it has been held that if the proceedings already started with the required number of members and if thereafter, there is any causal absence of a member, the proceeding need not be stopped but it may be carried to its conclusion. But in the instant case by order dated 17-8-1998 the proceedings of the Labour Court had started with required number of members but from the subsequent order it could not be gathered whether the proceedings was carried to its conclusion with the required number of members or not. But it could not be gathered which member, in fact, had attended the proceedings of the Court to its conclusion. From the order dated 17-8-1998 we find the names of 2 members, namely, Mohsin Ahmed and Sarder Motahar, whereas from the original copy of the decision and order the name of one Moazzam Hossain as member appeared on the top of the same after the Chairman. This shows that the Labour Court which was constituted with the required number of members could not proceed with the same constitution till the conclusion of the hearing of the case, rather the order dated 4-2-2001, as appears from the lower court records, does not disclose the name of any of the members who were present but the impugned decision and order discloses the name of Moazzam Hossain as one of the members. This shows that initially the Labour Court was constituted in accordance with law with the required number of members but subsequently till the disposal of the case it could not continue as per provisions of section 35(7). We have noticed that section 35(7) provides for continuation of the proceedings in the absence of a member, if the Labour Court is properly constituted with the Chairman and two members and that the total absence of members means, in fact, the Court is not properly constituted. In the present case, we have already noticed that though the Court was properly constituted initially with the required number of members yet it could not be said with certainty that the proceedings continued with the required number of members as per provisions of sub-section (7) of section 35 because the name of a different person as a member appeared in the decision and order after the Chairman of the Labour Court. Though the proceedings commenced with the required number of Members yet subsequently it could not be ascertained that it continued with 2 Members or one member till its disposal rather, on the date of passing the decision and order the name of a different person appeared as a Member of the Court which shows that there was a total non-application of mind on the part of the Chairman who in the impugned decision and order observed that the learned Member had been consulted. The provision of law is that the advice of a Member or Members is not binding upon the Chairman. It is also decided in the case reported in 34 DLR (AD) 166 that the intention of the legislature, as appears from the language employed in sub-section (7) of section 35 of the Ordinance, is that the Court itself either cannot compel the attendance of an absentee Member or extract his advice. In the context of the instant case, we are of the view that a Member who has been present in the proceeding till its conclusion should be required to express his advice in writing so that no misunderstanding may arise as to the fate of the advice tendered by him to the Labour Court. In the decision of the case of Abdus Sattar vs. Chairman, Labour Court Chittagong and another reported in 1 MLR 199 it has been held that the opinion of the member of the Labour Court has to be considered by the Chairman with due weight Non-consideration of such opinion without discarding with proper reasoning is arbitrary. In the instant case, the act of arbitrariness has been obvious from very observation of the Chairman when he stated that, "বিজ্ঞ সদস্যের সংঙ্গে পরামর্শ করা হইয়েছে" . If after considering the advice tendered by the members, the Chairman finds the same to be contrary to law or unreasonable then the Chairman can discard the same. But when the advice tendered by the members is well reasoned and in consonance with law and justice, the Chairman should give proper weight to such advice. While discarding well reasoned advice of the Members or Member, the Chairman should give reasons for not accepting the same. Whether in the instant case the advice had been tendered orally or in writing it is also not stated in the decision. Mere mentioning in the decision and order that Member has been consulted is not enough to justify the decision taken by the Chairman. In considering the advice of a Member a duty is cast upon the Chairman to state as to why he has not concurred with such advice tendered by the Member with the proper reasoning. In the absence of any such reason it amounts to arbitrariness and in the instant case because of the absence of any reason the decision suffers from legal infirmity. With all fairness, in order to remove any misunderstanding or ambiguity, the advice or opinion of the Member should be an express opinion in writing and the Chairman of the Labour Court while dealing with such opinion should consider the same with proper reasonings so that the reasons for the concurring or the dissenting views can be easily understood. A statement to the effect that a Member has been consulted will not suffice. The Chairman is required to state the reason for his concurring or dissenting views. In the instant case we find that the Chairman of the Labour Court failed to apply his judicial mind at the time of passing the decision and order as to the constitution of the Court from the date of its formation till the disposal of the case and thereby a different person is shown to have been a Member of the Court which has vitiated the decision and order. Accordingly, we are of the opinion that in the instant case the Labour Court was not constituted in accordance with law and that the impugned decision and order having been passed without application of mind is declared to have been made without lawful authority. We have refrained from making any comment as to the merit of the case. We have observed that the case has been decided by the court not having been constituted in accordance with law, we are of the view that the case should be sent back on remand to the Labour Court to decide the same on merit after constitution of the Court in accordance with law. The Labour Court shall be constituted according to the provisions of section 35 read with Rule 36. Since the opinion of the Members or a Member is not binding on the Chairman, the decision and order of the Labour Court constituted under section 35(2) of the Industrial Relations Ordinance, 1969 with a Chairman and 2 Members to advise the Chairman, is not required to be signed by the members.
 
26. In the result, the Rule is made absolute without any order as to costs and the impugned decision and order dated 4-2-2001 is declared to have been made without any lawful authority and to be of no legal effect. The case is sent back on remand to the Divisional Labour Court, Khulna and the Chairman of the said Court is directed to constitute the Court with the required number of members and dispose of the case expeditiously in accordance with law.
 
Send down the Lower Court Records and a copy of the judgment and order immediately.
 
Ed.