Superintendent, James Finlay PLC & another Vs. Chairman, 2nd Labor Court & another, 57 DLR (AD) (2005) 196

Case No: Civil Appeal No. 128 of 1998

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. M.A. Mannan,,

Citation: 57 DLR (AD) (2005) 196

Case Year: 2005

Appellant: Superintendent, James Finlay PLC

Respondent: Chairman, Labor Court

Subject: Labour Law,

Delivery Date: 2003-11-4

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Fazlul Karim J
Md. Hamidul Haque J
Md. Tofazzul Islam J 
 
Superintendent (now General Manager), James Finlay PLC and another
………........... Appellants
Vs.
Chairman, 2nd Labour Court and another
…………........ Respondents 
 
Judgment
November 4, 2003.
 
The Employment of Labour (Standing Order) Act, 1965 (VIII of 1965)
Section 25 
It is not the function of the Labour Court to make any reassessment of the evidence recorded by the Enquiry Committee. The fact that upon the assessment of the evidence a different finding could be arrived at is not a ground to hold that the enquiry was inappropriate or unfair.….. (14)
 
Cases Referred:
Mohd Abdun Noor vs. Platinum Jute Mills Ltd. and another 1978 BSCR 467; Lesson vs. General Council of Medical Education and Registration 43 Chancery Division 366.
 
Lawyers Involved:  
MA Mannan Senior Advocate, instructed by Md. Nawab Ali, Advocate‑on‑Record‑ For the Appellants.  
Mahbubul Haque, Advocate, instructed by Ahsanullah Patwary Advocate‑on‑Record‑For Respondent No. 2.
Ex parte‑ Respondent No. 1. 
 
Civil Appeal No. 128 of 1998.
(From the judgment and order dated 26th August 1998 passed by the High Court Division in Writ Petition No. 670 of 1994). 
 
JUDGMENT
Md. Fazlul Karim J.
 
           The second‑party respondent obtained leave to appeal against the judgment and order dated 26‑8‑1998 passed by a Division Bench of the High Court Division in Writ Petition No. 670 of 1994 making the Rule absolute and sending back the Complaint Case No. 122 of 1992 to the respondent No. 1 for fresh trial with direction to decide the case in the light of the observations made in the impugned judgment. 
 
2. The appellant moved the writ petition challenging the legality of the judgment and order dated 20‑12‑1993 passed ex parte by the respondent No. 1 in Complaint Case No. 122 of 1992 under section 25 of the Employment of Labour (Standing Order) Act, 1965 directing the appellant to reinstate the respondent No. 2 in his service with all back wages. The respondent No. 2 was appointed by the appellant on 15‑2‑1989 as a Storekeeper of Balisera Central Hospital, PS Sremangal, Moulvi Bazar and was discharged from service on 2‑10‑1992 for misconduct in accordance with the provision of section 17(3)(b) of the Employment of Labour (Standing Order) Act, 1965. On 20‑7‑1992 at 7‑00 AM the respondent No. 2 sent information to the Estate Medical Officer that on opening the store house he found that the glass of one window was broken and one rod of the same window was curved up and he suspected theft in the medical store. The EMO then and there rushed to the store and on his direction an inventory of the medicine in the store was prepared and found that medicine worth Taka 72,541 was missing. A first information report was lodged with Sree Mongal Police Station; the officer‑in‑charge of the Police Station came to the place of occurrence and started investigation; suspected the respondent No. 2 and he was taken to police station for interrogation. The respondent No. 2 confessed to the investigating officer that he took away the entire quantity of medicine from time to time with the aid of others. The police forwarded him to the Court and the learned Magistrate remanded him to custody. The police after completion of investigation submitted charge‑sheet against him under sections 461 and 380 of the Penal Code. That on 1‑8‑1992 the respondent No. 2 was served with a charge‑sheet under section 7(3) (b) of the Act asking him to submit his written explanation on 8‑8‑1992 against the charges. The respondent No. 2 submitted his written explanation denying the allegations brought against him and contending that he had no complicity with the alleged theft of medicine from the store and that he was innocent. The explanation submitted by the respondent No.2 was found not satisfactory and a three­-member Committee was constituted for holding an enquiry into the charges brought against respondent No.2 and asked him to appear before the Enquiry Committee on 26‑8‑1992 with his witnesses if any. The Enquiry Committee held the enquiry on 25‑8‑1992, 27‑8‑1992 and 28‑8‑1992 and in his presence witnesses were examined but except one witness he declined to cross examine others. He examined himself as a witness but did not examine any other witness in support of his defence. That the Enquiry Committee while holding the enquiry found that only one rod of the window was bent about 6/7 inches and it was not possible for any person to enter into the store from outside by that bend. Attention of the respondent No.2 was drawn by the Enquiry Committee to the above fact and he also expressed his doubt about it; the Enquiry Committee further found that one set of key of the stores used to remain with respondent No.2 and the second set was kept in the safe of the Chief Medical Officer; and that the respondent No.2 alone used to open the store house by his keys and no one else could unlock it; he alone received the medicine and distributed the same. The Enquiry Committee after a fair enquiry submitted its report dated 19‑9‑1992 unanimously finding him guilty of the charges brought against him. Upon consideration of the enquiry report as well as the extenuating circumstance that the respondent No.2 was the first offender during his service career, the appellant No.1 instead of dismissing the respondent No.2, discharged him from service under sub‑section (2) of section 17 read with section 18(6) of the Standing Order Act vide letter dated 2‑10‑1992. On receipt of the said order of discharge from service dated 2‑10‑1992, the respondent No.2 submitted a grievance petition to appellant No. I under section 25(1)(b) of the said Act. The appellant No.1 by its letter dated 27‑10‑1992 replied to the said grievance petition upholding its earlier decision dated 2‑10­1992. Thereafter, the respondent No.2 filed Complaint Case No. 122 of 1992 under section 25(1)(b) of the said Act before the respondent No.2, Chairman, 2nd Labour Court, Dhaka challenging the order of his discharge from service dated 2‑10‑1992 passed by appellant No. 1 and prayed for an order for his reinstatement in service with back wages. 
 
3. The appellant No. 1 alone contested the said complaint case by filing a written statement denying the material allegations made in the complaint petition and stating that respondent No.2 was an employee of the writ petitioner No. 1 and was appointed and discharged from service by the writ petitioner No. 1 and has no connection whatsoever with appellant No. 2, as such, the case is within the exclusive jurisdiction of Labour Court, II, Chittagong vide Notification dated 22nd April, 1980 and Notification dated 4‑11-­1991 and the 2nd Labour Court, Dhaka had no jurisdiction to entertain the case. The appellant No. 1 after filing written statement, filed a petition raising the question of jurisdiction but the respondent No. 1 did not give any decision on the question of jurisdiction. The further case of the appellant No. 1 was that since the respondent No.2 has not alleged any grievance of unfairness or bad faith or malafide on the part of the Enquiry Committee in his petition of complaint, the Labour Court had no jurisdiction to interfere with the findings of the Enquiry Committee because the Labour Court is not a Court of appeal having no occasion to consider whether the respondent No.2 is guilty or not. 
 
4. The respondent No.1, however, passed an ex parte order dated 20‑11‑1993 allowing the complaint case directing the appellant to reinstate the respondent No.2 in his service with all back wages. The appellant thereafter moved the High Court Division but the Rule was made absolute sending the complaint case back to the Second Labour Court, Dhaka for fresh trial with direction to decide the complaint case in the light of the observations made in the judgment. 
 
5. Leave was granted to consider the following submission of the learned Counsel for the appellant:   
 
"Mr. MA Mannan, the learned Advocate for the petitioners, submits that the High Court Division in the writ jurisdiction is not a Court of Appeal and it has no jurisdiction to send a case back on remand in exercise of a jurisdiction in the nature of certiorari. Secondly, he submits, the observations which the Labour Court were directed to follow are not the proper yardsticks for determination of the legality of an order of discharge. The Labour Court is invested only with the power to see that the procedure followed by the domestic Enquiry Committee was in accordance with rules and principles of natural justice or not. The Labour Court also is not a Court of review or appeal over the Enquiry Committee." 
 
6. On perusal of the impugned judgment it appears that the High Court Division observed, inter alia that:   
 
"The judgment passed by the Labour Court is not a speaking one, although the Labour Court disposed of the case ex parte but it has not discussed the evidence of the respondent No.2 and the Labour Court did not discuss statements made in the written statement and, also did not discuss about the enquiry report. The Labour Court ought to have examined the show cause issued against the respondent No. 2, the reply made by the respondent No. 2, the enquiry report submitted by the Enquiry C6mmittee and further, whether the petitioner discharged the respondent No. 2 from his service in accordance with law or not, etc. The Labour Court does not appear to have performed its function which it was required by law to do and, as such, the judgment and order passed by the respondent No. 1 is not in accordance with law and the same is liable to be set aside." 
 
7. The exercise of jurisdiction under certiorari empowers High Court Division to declare a proceeding to have been taken without lawful authority and of no legal effect which includes either declaring the impugned proceeding to have been taken without any lawful authority or discharging the Rule or making an order of remand to the Court or tribunal below for disposal of the proceeding in accordance with law. Remand is also a method of disposal by a Court. By way of issuance of certiorari the Court is to see whether the authority concerned, or administrative, body has acted without bias observing the rule of natural justice as to fair hearing and whether there is, an error of law apparent on the face of the record justifying the issuance of certiorari
 
8. Such error must clearly be apparent resulting in manifest injustice. The finding based on no evidence or inadmissible evidence or arriving at the finding of guilt without any enquiry is an error of law. 
 
9. The Labour Court disposed of the case ex parte by order dated 20-12-1993 without any finding as to whether the order of dismissal was passed in accordance with law. The High Court Division, however, making the Rule absolute remanded the case for fresh trial. 
 
10.  Writ of certiorari under Article 102(2)(a)(ii) of the Constitution authorises the High  Court Division  to  issue  the  writ  for declaring an order or an act done or proceeding taken to be without lawful authority and of no legal effect. Thus the Court could interfere only when a person proceeded against has done the act or action taken is vitiated by an act of lack of jurisdiction or by being in excess of jurisdiction. 
 
11. It is now an established principle of law that the Labour Court sitting over the impugned order of the Authority concerned is invested with the power to see whether the Enquiry Committee proceeded in accordance with the procedure laid down in holding enquiry under section 18(1) of the Employment of Labour (Standing Order) Act and to see as to whether the principle of natural justice has been complied with or not and in disposing of the case the Labour Court is duty bound to arrive at a finding as to whether or not the law, that is, the aforesaid provisions, have been complied with or not. 
 
12.  In the instant case the Labour Court while disposing of the complaint case, as it appears, did not arrive at any such finding and massed the order without any finding of any kind. 
 
13. The Labour Court is established under section 35 of the Industrial Relations Ordinance, which empowers to determine and decide the case under section 25 of the Employment of Labour (Standing Order) Act and attached a duty to see as to whether the requirement of section 18 of the Act, i.e., an allegation against worker has been recorded in writing or whether he has been given a copy thereof or at least 3 days' time to explain was allowed or not or whether he has been given personal hearing, if prayed for, and as to whether the order of discharge or dismissal has been approved by the employer or not.
 
14. Thus it is not the function of the Labour Court to make any reassessment of the evidence recorded by the Enquiry Committee. The fact that upon the assessment of the evidence a different finding could be arrived at is not a ground to hold that the enquiry was inappropriate or unfair. 
 
15.  In the instant case, we do not find any such finding regarding the enquiry proceeding held by the domestic tribunal or that the Authority has exceeded its jurisdiction/power given to it to make it invalid or without lawful authority or that the Authority having initial jurisdiction has acted or exceeded its jurisdiction by doing act stepping out of its jurisdiction. 
 
16.  In the case of Mohd Abdun Noor vs. Platinum Jute Mills Ltd. and another reported in 1978 BSCR 467 it has been held that:   
 
"The phrase "the principles of natural justice" can only mean in this connection the principles of fair trial. A provision for an inquiry necessarily imports that the accused should be given a chance of defence and explanation. This was done by the Domestic Tribunal. The Labour Court was, therefore, clearly wrong to come to the conclusion that the principle of natural justice was violated. No bias was alleged nor has it been urged that a reasonable body of persons could not come to such conclusion on materials as was done by the Enquiry Committee." 
 
17. In the said decision a passage was quoted from the case of Lesson vs. General Council of Medical Education and Registration reported in 43 Chancery Division 366 on the scope of domestic enquiry:   
 
"There must be due inquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard and the decision must be honestly arrived at if he has had a full opportunity of being heard. With respect to the charge made, the charge of which he had notice, it is a charge of infamous conduct in some professional respect, and the particulars which should be brought to his attention in order to enable him to meet that charge ought to be particulars of conduct which, if established is capable of being viewed by honest persons as conduct which is infamous. That is all we have seen these conditions have been fulfilled by the enquiry and by the tribunal which institutes it. The functions of the Court of law are at an end".
 
18. In view of the above, although we find that within the scope of certiorari the High Court Division has the power to remand the case to the Court or Tribunal below to see as to whether there was any compliance of section 18(1) of the Employment of Labour (Standing Order) Act and/or the compliance of principle of natural justice but the observations made by the High Court Division to be followed by the Court, in our view, are not the proper course for the Labour Court to pursue under section 25 of the Employment of Labour (Standing Order) Act, 1965.

With these observations this appeal is dismissed without any order as to costs.
 
Ed.