Star Jute Mills Ltd. Vs. Chairman, Labour Court and others, 2005, 34 CLC (AD)

Sunday, 11 October 2009 17:02

Written by Md. Ershadul Karim

0 Comments

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

MA Aziz J

Amirul Kabir Chowdhury J

Star Jute Mills Ltd................Appellant

Vs.

The Chairman, Labour Court and others........... ..............Respondents

Judgment

March 30, 2005.

Lawyers Involved:

Khalilur Rahman, Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellant.

Abdul Halim Chaklader, Senior Advocate-on-Record - For Respondent No. 2.

Dispensed with - Respondent No. 1.

Civil Appeal No. 585 of 2001.

(From the Judgment and Order dated 29.4.1998 passed by the High Court Division in Writ Petition No.2016 of 1993)

Judgment

MA Aziz J.- This appeal by leave by the Second Party Star Jute Mills Ltd. Calls in question the judgment and order dated 29.4.1998 passed by the High Court Division discharging the rule in Writ Petition No. 2016 of 1993 affirming those dated 23.10.1993 passed by the Chairman Labour Court, Khulna in Complaint Case No. 55 of 1992.

2. One Golam Mostafa (respondent No. 2 herein) filed Complaint Case No. 55 of 1992 under section 25(1)(b) of the Employment of Labour (Standing Orders) Act, 1965 hereinafter to be called the said Act before the Chairman, Labour Court, Khulna contending that he was appointed as a worker in the mills in 1975 and his service record was clean, that while he was working in the mills he was involved in a Criminal Case under section 302/201/34 of the Penal Code giving rise to Sessions Case No. 88 of 1990 and the Sessions Judge, Khulna by judgment and order dated 15.1.1992 convicted him under section 201/34 of the Penal Code and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Tk. 200/-, in default, to suffer rigorous imprisonment for two months more. Thereafter, the mills authority suspended him by letter dated 30.1.1992. In the meantime the respondent No. 2 preferred an appeal before the High Court Division against his conviction and sentence and obtained bail. Thereafter, he prayed for joining his duties through letter dated 17.2.1992 but the mills authority dismissed him from service by order dated 4.5.1992 on ground of his conviction.

3. Before dismissal no show cause notice was issued and no personal hearing was given to respondent No. 2 and that being so the order of dismissal dated 4.1.1993 was sought to be declared as being without jurisdiction and illegal.

4. After obtaining the order of dismissal the first party sent his grievance petition by registered post on 21.6.1992 but the second party (Jute Mills) did not consider it and accordingly, the first party filed Complaint Case No.52 of 1992 and prayed for setting aside the order of dismissal dated 4.5.1992 and for reinstatement in his service with back wages.

5. The second party (Jute Mills) contested the case by filling written statement contending that the case was not maintainable, that he was a worker under the petitioner mills and was governed by the provisions of the Employment of Labour (Standing Orders), Act, 1965 and as there is no allegation against him of any misconduct under section 17(2), his dismissal is not subject to the provision of section 18 of the said Act. Rather, it was a case of dismissal under section 17(1)(a) of the said Act on ground of his being convicted in a Criminal Case. The first party also admitted in his application that he was convicted and sentenced to imprisonment for two years with a fine. As such it was not necessary to issued any show cause or charge-sheet prior to dismissal and to follow the provision of section 18(1) of the Act. Section 17(1) of the Act empowers the management to dismiss a worker without prior notice.

6. The Chairman, Labour Court, Khulna having heard both the sides, allowed the case by judgment and order dated 23.10.1993 and directed the second party to reinstate the first the party in service with all back wages within 30 days. As against that the second party (Jute Mills) Preferred writ petition.

7. Mr. Md. Khalilur Rahman, learned Advocate for the second party appellant submits that under section 17(1) of the Act a worker may be dismissed without prior notice or pay in Lieu thereof or any compensation if he is convicted, that the Labour Court as well as the High Court Division were wrong in holding that the appellant cannot dismiss the first party under section 17 without following the procedure laid down in section 18 of the Act and the decision reported in 22 PLD, Dhaka at page 115 was misread and misconstrued as it was not applicable in the instant case, that a dismissal order under section 17(1)(a) is different from a dismissal under section 17(1)(b) of the said Act which is misconduct.

8. Having gone through the judgment and order of the Labour Court as well as the High Court Division we find that both the courts below committed an error of law in construing section 17(1)(a) where the provision of section 18 of the Act is not required to be complied with because the order of dismissal is not on ground of misconduct rather it is on ground of conviction and sentence passed by a Competent Court of Criminal jurisdiction. In view of the discussion above the appeal is allowed without any order as to costs and the judgment and order passed in writ Petition No. 2016 of 1993 is set aside.

Ed.

This Case is also Reported in: II ADC (2005) 825.