Abdul Wahab and Ors. Vs. Chairman, First labour Court and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 1962, 1963, 1964 and 1965 of 2009

Decided On: 26.02.2013

Appellants: Abdul Wahab and Ors. Vs. Respondent: Chairman, First labour Court and Ors.

Hon’ble Judges/Coram: Bazlur Rahman and Sheikh Hassan Arif, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Md. Mozammel Hossain, Advocate

JUDGMENT

1. Since similar questions of law and facts are involved in the aforesaid four writ petitions, the same have been taken up together for hearing and are now being disposed of by this single judgment. At the instance of the writ petitioners, similar Rules were issued calling upon the respondents to show cause as to why four judgments and orders, all dated 25-2-2009, passed in Complaint Case Nos. 12, 13, 14 and 15 of 2002 respectively by the Chairman, First labour Court, Dhaka (Annexure-H to all writ petitions) should not be declared to be without lawful authority and are of no legal effect.

2. Short back ground facts, relevant for the disposal of the Rules, are that the writ petitioner-workers filed four Complaint Cases being Complaint Case Nos. 12, 13, 14 and 15 of 2002 respectively before the First labour Court, Dhaka (respondent No. 1) under Section 25(1)(b) of the Employment of labour (Standing Orders act, 1965) (hereinafter called “the SOA1965”) challenging their dismissals by the Dhaka Electric Supply Authority (“DESA”) (respondent No. 2) alleging, inter alia, that the petitioners were permanent workers of the DESA and were Trade Union activists holding different posts in Narayangong Branch of the DESA Sramik League (registration No. B-9), which was the Collective Bargaining Agent (CBA) of the DESA till 18-2-2002; that each of the first three petitioners was served with separate charge-sheets dated 4-10-2001 and the other petitioner was served with charge-sheet dated 10-10-2001 seeking their reply, and to face inquiry by an Inquiry Committee constituted by the DESA, to the allegations that on 26-9-2001, when a DESA team of Officers, including Mr. Mustafizur Rahman, Assistant Director (internal audit), went for meter inspection, the petitioners along with some other unruly workers and outsiders assaulted Mr. Rahman physically, snatched some papers from him and took him on a vehicle forcefully and thereby obstructed the team from performing their duty; the petitioners, by their written replies, denied all the allegations; however, the Inquiry Committee, during inquiry, without giving them proper opportunity to defend and hearing and without examining any witnesses, found them guilty; DESA accordingly, dismissed them all from services under section 17(3) of the SOA 1965 as a measure of victimization for their trade union activities; the petitioners then lodged the aforesaid Complaints before the labour Court as their grievance notices under section 25(1)(a) of the SOA 1965 got no response. DESA contested the said Complaint Cases by filing Written Statements contending, inter alia, that the petitioners were involved in the said assault and attempted abduction of the officers of the said inspection team and they were accordingly proceeded against through charge-sheets followed by an inquiry in accordance with law and having been found guilty were dismissed from service. The labour Court concerned, after examining the witnesses and considering the materials produced by the parties, vide judgment and order dated 14-11-2005, allowed the Complaint Cases and directed the DESA to re-instate the petitioners in their respective services with all back wages. Being aggrieved by this judgment, DESA moved Writ Petition Nos. 567-570 of 2006 from the High Court Division of the Supreme Court of Bangladesh, whereupon, a Division Bench of the High Court Division, vide judgment and order dated 3-8-2008, made the Rules issued therein absolute upon setting-aside the said judgment and order dated 14-11-2005 passed by the labour Court. Through that judgment, the High Court Division, however, did not pass any order or observation as to the legality of the order of dismissal or procedure followed leading to the said orders of dismissal, but sent the Complaint Cases back to the labour Court on remand for determining those issues as per the observations made in the said judgment. Thereafter, the labour Court again heard the parties arguments and, finally, by impugned judgment and orders, all dated 25-9-2009, dismissed all the four Complaint Cases filed by the petitioners. Being aggrieved by these judgments and orders, all dated 25-9-2009, the petitioners moved this Court and obtained the aforesaid Rules.

3. DESA contested all the four Rules by filing separate affidavits-in-opposition maintaining its earlier position that there was no procedural flaw on the part of the DESA in passing the orders of dismissal and that the labour Court, on remand, rightly dismissed the Complaint Cases in question.

4. Mr. Md. Mozammel Hossain, learned advocate appearing for all the four petitioners, at the very outset, has taken us through the earlier judgment dated 3-8-2008 of this Court passed in Writ Petition Nos. 567-570 of 2006 (Annexure-G) and submits that he does not have any issue with regard to the observations of law made by this Court in that judgment. However, he submits that, the labour Court, on remand, did not or failed to follow those observations of law in their true essence in the particular set of facts and circumstances of the instant cases. Referring to the cases as cited in the said judgment, namely the case of SH Quddus vs. Chairman, labour Court, Chittagong 33 DLR 1 and the case of Bashir Ahmed vs. Bangladesh Jute Mills Corporation [44 DLR (AD) 267], Mr. Hossain argues that since the superior Courts of this country have time and again held that it is the responsibility of the labour Court to see whether there was any flaw in the procedures adopted by the employer before passing an order of dismissal against a particular worker, the labour Court concerned has failed to detect that procedural flaw inasmuch as that the alleged victims of the incident were not even produced before the Inquiry Committee and none of their evidences or depositions was recorded by the Inquiry Committee in presence of the writ petitioners, thus depriving them any opportunities of cross-examining those victims. Accordingly, he continues, the DESA Inquiry Committee or the DESA authority not only failed to conduct proper inquiry for finding the guilt of the concerned workers in view of section 18(4)(a) but also failed to give real personal hearing within the meaning of section 18(1)(c) when such prayer for personal hearing was admittedly made by some workers. Mr. Hossain further submits that although the statement allegedly made by the victim officers as regards the alleged assault was before the Inquiry Committee and the same was taken into consideration by the Inquiry Committee for reaching its conclusion, yet the said statement was even not produced before the petitioner-workers nor their attention was ever drawn to the contents of such statement. This being so, he submits, the Inquiry Committee, thereby, failed to give them any opportunity either to controvert the allegations contained therein or to give proper reply as to those allegations. Given this particular scenario of the instant cases, he submits that the ratio as applied in the Bashir Ahmed’s case in the facts of that case will not be applicable in the facts and circumstances of the present cases in that the labour Court in the instant case on remand failed to appreciate that the authority had committed major procedural flaw in reaching its conclusion of awarding major punishment of dismissal against the petitioners. In support of his submissions, Mr. Hossain refers to the decisions of this Court in MA Hai vs. TCB 31 DLR (AD) 49, Bangladesh vs. Md. Abu Taher 31 DLR (AD) 33 and Mostafa Miah vs. Chairman, First labour Court, Dhaka 46 DLR 373.

5. Mr. Kazi A Habib, learned advocate appearing for the DESA, on the other hand, submits that since the labour Court in the earlier judgment decided the cases like an appellate forum through re-assessing the evidences, the High Court Division in Writ Petition Nos. 567-570 of 2006 set-aside the said judgment of the labour Court and sent the cases back on remand directing the labour Court to decide the cases like a revision and further directed it not to re-assess the evidences. In the said judgment, he continues, this Court observed that in view of the ratio declared by our Appellate Division in Bashir Ahmed’s case, cross-examination of witnesses in all cases were not required and the authority could reach its decision of dismissal by mere questioning the accused-workers. Mr. Habib submits that since the labour Court, on remand, followed the direction given by the High Court Division in the said judgment and accordingly found no procedural flaw on the part of the DESA in punishing the concerned workers, this Court should not interfere into the same. Mr. Habib further points out that since the allegation was that some officers were physically assaulted by some workers including the petitioners, it would have been much more embarrassing for those officers to again come forward and depose before the Inquiry Committee allowing the petitioners to cross-examine them regarding the said assault. Considering this aspect, he continues, the Inquiry Committee rightly decided no to bring those victim officers before the Inquiry Committee and reached its conclusion relying on the statement made by those officers on the day of occurrence. Mr. Habib further argues that the petitioners, who sought personal hearing as per law, were given such hearing and they were asked specific questions through questionnaire, to which they gave their reply. This being so, he submits that, the authority followed all the procedural requirements of law as regards the inquiry and/or hearing and, as such, committed no illegality in reaching its decision. In support of his above submissions, Mr. Habib refers to the decisions of this Court in Bashir Ahmed vs. BJMC [44 DLR (AD) 269], SH Quddus vs. Chairman, labour Court, Chittagong 33 DLR 1, Manager, GBSM Ltd. vs. Chairman, First labour Court 34 DLR 1, Adamjee Jute Mills vs. Chairman, Third labour Court 42 DLR 371, Md. Motabar Hossain vs. BJMC [36 DLR (AD) 282], Principal, Shahriar Murshed [48 DLR (AD) 33], Masum Iqbal vs. Director, SW, BUET 49 DLR 104, Kazi Mokhlesur Rahman vs. secretary, Ministry of Law [49 DLR 126] and Akhlasur Rahman vs. Safarullah 42 DLR (AD) 189.

6. Considered the submissions of the learned advocates, perused the writ petitions, impugned judgments, labour Court Records and other materials on record. It is on record and admitted position that the petitioners were ordered to be re-instated with back wages by the labour Court through its earlier judgments and orders dated 14-11-2005. However, this Court, vide its judgment dated 3-8-2008 passed in Writ Petition No. 567-570 of 2006, set-aside the same and directed the labour Court to rehear the Complaint Cases on merit in line with the guidelines and observations contained in the said judgment. In formulating the guidelines and observations in the said judgment, this Court relied on the ratio declared by the High Court Division and the Appellant Division of this Court in two cases, namely SH Quddus vs. Chairman, labour Court, Chittagong 33 DLR 1 and Bashir Ahmed vs. Bangladesh Jute Mills Corporation 44 DLR (AD) (1992) 267, and observed as follows:

“So it is seen that the labour Court cannot make any reassessment of the evidence recorded by the Domestic Tribunal and arrive at its own finding unless the same is a perverse one. The duty of the labour Court under Section 25 is to see whether the Domestic Tribunal complied with the requirements enumerated in Section 18(1) of the act of 1965, nothing more, nothing less. Precisely speaking, in this respect, the labour Court is akin to a Revisional Court.

Coming back to the present case, it is on record that no witnesses were examined by the Domestic Tribunal either on the side of the DESA or on the side of the workers. However, out of four workers, Abu Hanifa and Abdul Wahab prayed for personal hearing and accordingly they were heard in person and they also replied to the written questionnaires supplied to them. But the remaining two workers, namely, Md. Jane Alam and Abul Hashem did neither make any prayer for personal hearing nor they were supplied with any written questionnaires. In any case, all the workers were found guilty of misconduct by the Domestic Tribunal leading to their eventual dismissal from service.

The ‘ratio’ that has been enunciated in the case of Bashir Ahmed vs. Bangladesh Jute Mills Corporation and others reported in 44 DLR (AD) 267 is that in an appropriate case, the Domestic Tribunal may arrive at a decision simply by questioning the accused and considering his explanation and again, in, a particular case, examination of witnesses in presence of the accused my be absolutely necessary. So the mandate of our Appellate Division is that examination of witnesses in all cases by the Domestic Tribunal is not a must. The above ‘ratio’ decided by the Appellate Division should have been taken note of by the labour Court in deciding the Complaint Cases lodged by the workers”.

7. Finally, this Court concluded by observing:

“It appears that the labour Court did not bear in mind the requirements of Section 18(1) of the act of 1965 while disposing of the Complaint Cases instituted by the workers. It is the duty of the labour Court to see whether the Domestic Tribunal committed any procedural flaw in finding the guilt of the workers or whether the said finding was perverse or not. The labour Court ought to have disposed of the cases just like a Court of Revision but surprisingly enough the labour Court made an in-depth analysis of the evidence of the wit-nesses examined before it and arrived at its own findings like a Trial Court. The materials upon which the Domestic Tribunal banked in finding the guilt of the workers were not considered by the labour Court.

In view of the discussions made above, we are led to hold that the impugned decisions of the labour Court are without lawful authority and of no legal effect. But since we are inclined to remand the cases to the labour Court for disposal on merit, we refrain from making any observation thereon”.
(Underlines supplied to give emphasis)

8. It appears from the above observations of this Court that the High Court Division very purposefully refrained from passing any order or observation as to the very legality of the procedure adopted by the Inquiry Committee or DESA and left it for determination by the labour Court on remand. The emphasis as given by this Court in that judgment was on the responsibility of the labour Court to see whether or not the authority, through its Domestic Tribunal, committed any procedural flaw in finding the guilt of the workers. The ratio declared by the cases of Bashir Ahmed and Quddus are also almost on the same premises which are that the labour Court cannot act as an appellate forum and, as such, cannot reassess the evidences as already assessed by the Domestic Tribunal and, thereby, cannot substitute the finding of guilt reached by the said Domestic Tribunal. The only responsibility of the labour Court is to see whether the Domestic Tribunal, in the particular facts and circumstances of a case, has committed any procedural flaw.

9. The procedures provided under section 18 of the SOA 1965 for imposing punishments of dismissal or discharge on a worker have to be followed by the Domestic Tribunal or the authority in reaching its decision to impose such punishment. Those procedural requirements include the writing of the allegations against the delinquent worker, giving copy of such allegations to him, according him a personal hearing if such prayer is made, an inquiry to be made as regards such allegations and the worker has to be found guilty of any of the charges alleged. It is further provided under sub-section 4(b) of Section 18 that if the delinquent worker is not found guilty as such he shall be deemed to have been on duty for the period of suspension for inquiry and shall be entitled to his wages for such period of suspension upon adjustment of subsistence allowances received already.

10. Now the question before us is whether, as per the ratio declared by this Court in the cases of Bashir Ahmed and Quddus, the labour Court concerned did examine properly whether or not there was any lapse on the part of the Authority or the Domestic Tribunal in fulfilling the requirements of the aforementioned procedures as provided under section 18. In doing such examination, however, labour Court cannot go into the re-assessment of the evidences or materials before the Domestic Tribunal unless it is a case of no evidence or a case of perverse decision.

11. Since recording of allegations and serving copies thereof on the petitioner-workers are not disputed by either of the parties before us, the entire issue is focused on the question of ‘inquiry’ and ‘personal hearing’ as provided under section 18 of the SOA 1965. The petitioners’ contention is that although an inquiry took place, the same was not a proper inquiry and that the petitioners were not given proper hearing. To address these two issues, we have examined the labour Court Records. It appears from orders of the labour Court dated 22-1-2009 to 25-2-2009 that upon receiving the copy of the judgment of the High Court Division passed in the earlier Writ Petition Nos. 567-570 of 2006, the labour Court concerned proceeded with the hearing of arguments by the parties as the parties refused to produce any further witness to depose. For better scrutiny of the scope of inquiry and hearing as conducted and accorded by the DESA through its Domestic Tribunal, we have perused the depositions of the Inquiry Officer, who deposed before the labour Court as DW 2, to get some light as to the procedure adopted in the said inquiry. It appears from the said deposition that the written statement of the victims as given on the day of occurrence was before the Inquiry Committee for its consideration as had already been sent to it by the DESA authority. It further appears that the petitioners, who sought personal hearing, were given one set of written questionnaire seeking their answers to several questions already written therein. The said questions mostly concerned as to whether or not the said petitioners assaulted the said Mr. Md. Mustafizur Rahman and whether they snatched papers and spectacles from him, to which they answered in the negative. The petitioners who did not want any personal hearing, were not given any such questionnaire to answer, and the Inquiry Committee, upon mere examining the charge, reply and the said written statement of the victim officers, reached its conclusion of guilt as to the involvement of the petitioners in the said assault.

12. Section 18 of the SOA 1965 gave emphasis on, amongst others, two major requirements, viz., the ‘personal hearing’, if the same is sought by the delinquent worker, and finding him guilty “on inquiry”. We have already gone through the decisions of this Court in the case of Quddus and Bashir Ahmed and in full agreement with them in that examination of witnesses in all cases is not required and that the Domestic Tribunal may reach its decision in some cases by mere putting some questions to the delinquent workers in the form of questionnaire. Now the question is whether, in the given facts and circumstances, the instant cases are those cases where examination of witnesses was not necessary. In other words, whether the inquiry by the Domestic Tribunal was done properly. To examine that issue, we have perused the provisions under Section 18 for better understanding of the words “on inquiry” as mentioned under sub-section 4(a) of section 18.

13. In the facts involved in the instant cases, it appears that a copy of charge-sheet was served upon each of the petitioners containing the allegations as to their alleged involvement in the assault on Mr. Mustafizur Rahman and his team, to which the petitioners, in reply, denied in categorical terms, although admitted that they were present at the place of occurrence at the relevant time and gave explanation for their such presence. It further appears from the written questionnaire as well that the same questions were put to some of them in written form to which they again replied in the negative and explained the reasons for their presence at the place of occurrence.

14. It is true that the examination of witnesses in all cases are not required but this cannot be the rule for each and every set of facts. Even in Bashir Ahmed’s case, our Appellate Division observed that in a particular case examination of witnesses in presence of the accused may be absolutely necessary. But on the facts of that case, the Apex Court held that such opportunity of cross-examination was not necessary. The factual matrix of the cases before us and the Bashir Ahmed’s case are totally different. In Bashir Ahmed’s case, there were allegations against the delinquent employee regarding his involvement, active or passive, in the supply of jute from a place not authorized by the authority concerned. Upon inquiry it was found that although the higher quality of Jute were to be supplied from Kanaipur, in fact inferior quality of Jute were purchased from Zikargacha causing a loss of Taka 2.81 lakh and in that supply of lower quality Jute the connivance of the delinquent employee was found. The toll-receipts of a particular bridge and other documents indicating the purchase of lower quality jute from Zikargacha were before the Inquiry Committee on the basis of which the Inquiry Committee was able to reach its conclusion as to the involvement of the delinquent employee. However, in the instant cases, the admitted position is that the situation was tensed at the place of occurrence at the relevant time. It is even apparent from the very statement of the victim-officers (as submitted before the labour Court and kept in the Lower Court record in Complaint Case No. 13 of 2002), that some unruly people assaulted the concerned officers and snatched papers from them. The said statement of victims further reveals that even the victims were not entirely sure as to the identity of the petitioners. The statement reads at one point:

“পরে জানা যায় শারিরিকভাবে লাঞ্চিত করার ক্ষেত্রে মূখ্য ভূমিকা পালন করেন আনে আলম নামক একজন ব্যাকি, যিনি লাইনম্যান হিসাবে প ও স বিভাগ, নারায়নগঞ্জে কর্মরত আছেন। ইহাছাড়াও যাহাদের সনাক্ত করা যায় তাহারা হইলেন জনাব আবু হানিফা, মিটার পাঠক, জনাব আব্দুল ওহাব, ইলেকট্রিশিয়ান-বি, মিটার রিডিং কাজে কর্মরত। ইহাছাড়াও উক্ত দলে পনের-বিশজন সদস্য ছিল যাহাদের সনাক্ত করা যায় নাই।”

15. At another stage, the said statement of victims reads:

“কর্মকর্তাদের বহণকারী গাড়ি দুইটি ঢাকার উদ্দেশ্যে রওনা হইলে হামলাকারীরা বলেন জনাব আবুল হাশেম, সিবিএ ইট নিট কমিটির সাধারণ সম্পাদক, সাহেবের নির্দেশ রহিয়াছে সকল পরিদর্শক সদস্যকে সিংশ্লিস্ট বাঃ পঃ নারায়নগঞ্জ অফিসে যাইতে হবে।”

16. This statement itself reveals that the identity of the persons involved in the assault or behind the assault came to the knowledge of the victim-officers subsequent to the occurrence, which means they came to know about their identity from other sources and not on their own. It further shows that although the names of the petitioners are mentioned in the said statement, the petitioners were not personally known to the victims at the time of occurrence. Be that as it may, we are not in a position to say anything as to the genuineness of the source or basis of those information as contained in the said statement of the victims. Those information may be entirely correct or partially correct or wrong. But the million dollar question is when the victim officers came to know about the identity of the writ petitioners from other sources subsequent to the occurrence, did the petitioners not have any right to controvert those knowledge of identity or sources of identity implicating them in the alleged assault? Again, when there were more than 20 persons present in a tensed situation at the place of occurrence at the relevant time, did the petitioners not have any right to justify their presence at the place of occurrence by questioning the victims as to the manner and nature of assault took place in detail? At the same time, we fail to agree with Mr. Habib that if such opportunity of cross-examination was given, that would have been more humiliating to the victim-officers in particular when it is on record that the said victim Mr. Mustafizur Rahman was later produced by DESA before the labour Court to depose and was allowed to be cross-examined, although he was not required to be produced before the labour Court as such.

17. Besides, it is further admitted by the parties and even admitted by the Inquiry Officer in his deposition before the labour Court that the said statement of victims was not even brought to the notice of the writ petitioners during inquiry. When Section 18 particularly provides for finding of guilt on inquiry, we are of the view that the inquiry in question has to be a proper inquiry and not a mockery of inquiry. Had it not been the intention of the Legislature, the words “on inquiry” and the words “a worker is found guilty of any of the charges alleged” would become redundant. When sub-Section (1) of Section-18 provides for personal hearing if such prayer is made, sub-section 4(a) provides for inquiry which may in some particular cases should include ‘personal hearing’ as well although not specifically mentioned therein. Inquiry as an eye-wash cannot be the contemplation of the Legislature. Although personal hearing in an inquiry, if not sought by the delinquent worker, is not provided specifically by sub-Section (4) of Section 18, we are of the view that depending on the facts and circumstances of a particular case the Domestic Tribunal should read therein the words ‘personal hearing’ as a mandatory requirement in particular when the allegations themselves do not confirm the identity of the delinquent workers.

18. As stated earlier, the factual scenario in the instant cases before us is totally different from the facts of the Bashir Ahmed’s case. Here, most of the petitioners admitted that they were present at the place of occurrence at the relevant time but they did not commit any assault or were not involved in committing any assault even behind the door as alleged in the charge-sheet. The statement of the victims also do not confirm their involvement as a first-hand knowledge rather it implicates them on the basis of information received subsequently from other sources. Therefore, this is a fit case, as indicated in the Bashir Ahmed’s case, where cross-examination of the witnesses or victims were absolutely necessary. For the same reasons, personal hearing ought to have also been given through the inquiry to the petitioners who did not seek such hearing as the same is envisaged under sub-Section (4) of Section 18 in some circumstances like the instant ones and in that hearing they ought to have been given the opportunity to cross-examine the victims.

19. Again, although the inquiry committee observed in the Inquiry Report (Annexure-E) that the presence of some of the delinquent workers at the place of occurrence were not acceptable or they were not supposed to be present there, we are not in a position to question their judgment as we are not disposing of this matter as an appeal, nor even the labour Court was not in a position to substitute the opinion or inference drawn by the Inquiry Committee. Our concern is whether the inquiry was properly done or not. Since we have already found that this is a fit case where cross-examination of the witness or victims was absolutely necessary and since the statement of the victims, the very basis of the entire charges against the writ petitioners, was not even brought to the notice of the petitioners during inquiry, we are of the view that there were major procedural flaws in the inquiry by the Domestic Tribunal vitiating the decision of dismissal reached by the DESA. Since the law provides that finding of guilt of the delinquent workers has to be “on inquiry” and that inquiry, in the instant cases, is vitiated by major procedural flaws, we have no option but to hold that the finding of guilt as reached by the DESA was not ‘on inquiry’ as contemplated in the relevant provisions of law, but on some extraneous matters, which are not permitted by law.

20. Regard being had to the above facts and circumstances of the case and the discussions of law, we are of the view that the Rules have substance and the same should succeed. However, since we have focused on the procedures of inquiry adopted by the Domestic Tribunal and not on the finding of the guilt by the Domestic Tribunal or the DESA, which we cannot, and considering the seriousness of allegations against the petitioners, we are of the view that the authority should still be at liberty to proceed against the writ petitioners if it is so advised in strict compliance with the procedures mentioned under Section 18 of the SOA 1965 and the observations given hereinabove. In the result, the Rules are made absolute. All the four impugned judgments and orders dated 25-2-2009 passed by the First labour Court, Dhaka (respondent No. 1) on remand and the orders of dismissal in question passed by the DESA are, accordingly, set-aside. However, the DESA will be at liberty to proceed against the writ petitioners again, if it desires so, in strict compliance with the procedures under Section 18 of the Employment of labour (Standing Orders) act, 1965 and the observations made hereinabove.

Send down the labour Court Records and communicate this order at once.