↓Skip to main content
Labour Laws
  1. Case Law/

M.A. Malek Vs. Respondent: Md. Yousuf

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Criminal Misc No. 1055 of 2000

Decided On: 23.01.2017

Appellants: M.A. Malek Vs. Respondent: Md. Yousuf

Hon’ble Judges/Coram: Syed Muhammad Dastagir Husain and Md. Ataur Rahman Khan, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Mahbubul Hoque, Advocate

JUDGMENT

Syed Muhammad Dastagir Husain, J.

  1. Rule was issued calling upon the opposite party to show cause as to why the impugned proceedings of Criminal Case No. 22 of 2006 punishable under Section 26 of the Bangladesh Employment of labour (Standing Order act, 1965). now pending in the court of learned 1st labour Court, Chittagong should not be quashed.

  2. Short facts, necessary for disposal of the Rule, is that, the complainant opposite party filed Complaint being Complaint Case No. 08 of 2003, in the Second labour Court, Chittagong for recovery of service benefit, labour Court after hearing allowed the complaint case and directed to pay termination benefits to the complainant opposite party on 15.02.2004. As against that the accused petitioner preferred appeal before the labour Appellate Tribunal, Dhaka, which was dismissed on the ground that the appeal is not maintainable under Section 38(3A) of the Industrial Relations Ordinance, 1969 and the accused petitioner paid Tk. 3,69,840/- as termination benefit to the complainant opposite party and the complainant opposite party received the same.

  3. Thereafter, the complainant opposite party filed Criminal Case 22 of 2007 under Section 26 of the Bangladesh Employment of labour (Standing Orders) act, 1965 before the labour Court, Chittagong praying for punishment for non-payment of Tk. 25,95,317/- but the labour Court did not pass any order mentioning the quantum of amount is to be paid to the complainant. Thereafter the accused petitioner filed Criminal Case No. 22 of 2006 in the 1stLabour Court, Chittagong under Section 241A of the Code of Criminal Procedure for discharging him stating that the accused petitioner has already paid the termination benefit amounting to Tk. 3,69,840/- to the complainant, as such, this case is not maintainable, which was rejected on 25.09.2008.

  4. Against which the accused petitioner filed this application before this court under Section 561A of the Code of Criminal Procedure.

  5. Mr. Mahbubul Hoque, the learned Advocate for the accused petitioner submits that the complainant opposite party filed a Criminal Case for non-payment of Tk. 25,94,317/- for his service termination benefit, whereas as per calculation the complainant-opposite party was entitled to get only Tk. 3,69,840/- for his termination benefit and the accused petitioner as per record paid the same to the complainant - opposite party. He further submits that the case of the complainant opposite party is vague and unspecified and the labour Court by mis reading and misrepresentation passed the impugned Judgment against the accused petitioner. He further submits that the labour Court has no jurisdiction to proceed with the proceedings against the accused petitioner and has no jurisdiction to determine the quantum of amount payable to the complainant-opposite party under Section 26 of the Bangladesh Employment of labour (Standing Orders) act, 1965. He further submits that without ascertaining the claim of the complainant-opposite party under Section 34 of the Industrial Relations Ordinance, 1969 or under Section 13(2) of the payment of wages act, 1936, no criminal case can be filed against the accused petitioner under Section 26 of the Bangladesh Employment of labour (Standing Orders) act, 1965. Accordingly, he submits that the present Rule may be quashed for ends of justice.

  6. Non one appears on behalf of the complainant-opposite party.

  7. Heard the learned Advocate for the accused-petitioner. On perusal of the record, it appears that the complainant opposite party filed a Complaint petition being Complaint Case No. 08 of 2003 in the Second labour Court, Chittagong, for recovery of service benefit, which was allowed. Against which the accused petitioner preferred appeal under Section 38 (3A ) of the Industrial Relations Ordinance, 1969 before the labour Appellate Tribunal, Dhaka, which was dismissed on the ground that the appeal is not maintainable. Thereafter, the accused petitioner paid Tk. 3,69,840/- as termination benefit to the complainant opposite party and the complainant opposite party received the same.

  8. Thereafter, the complainant opposite party filed Criminal Case 22 of 2007 under Section 26 of the Bangladesh Employment of labour (Standing Orders) act, 1965 before the labour Court, Chittagong praying for punishment for non-payment of Tk. 25,95,317/- , but the labour Court did not pass any order mentioning the quantum of amount is to be paid to the complainant opposite party. Thereafter, the accused petitioner filed Criminal Case No. 22 of 2006 in the 1st labour Court, Chittagong under Section 241A of the Code of Criminal Procedure for discharging him stating that the accused petitioner paid the termination benefit to the complainant and he has received the amount. Therefore there remains no litigation and it ends.

  9. The learned Advocate for the petitioner however referred a decision, in the case of Abdul Hamid Khan, GM, Daily Banglar Bani (Modhumoti Mudranalya) Vs. Md. Abul Kashem ( Ex Senior Retoucher of Banglar Bani), reported in 55-DLR page 231, wherein it has been held that :-

" unless the amounts of claim are ascertained which can only be done on an application under section 34 of the Industrial Relations Ordinance, 1969, the complainants can not resort to criminal proceedings for alleged no-compliance."

  1. Another decision, in the case of Brigadier Choudhury Khalequzzaman and others Vs. Sk. Shahabuddin, reported in 42 DLR page 293, and it has been held that:-

" The labour court has no jurisdiction to determine the quantum under Section 26- labour Court cannot punish an alleged offender for failure to comply with an indefinite order. "

  1. The complainant opposite party filed a Criminal Case for non-payment of Tk. 25,94,317/- for his service termination benefit, whereas as per calculation the complainant -opposite party was entitled to get Tk. 3,69,840/- for his termination benefit and the accused petitioner as per record paid the same amount to the complainant - opposite party. It also appears that the labour Court by mis-reading and misrepresentation passed the impugned Judgment against the accused petitioner.

  2. As per decision as mentioned above, the labour Court under section 26 of Employment of labour (Standing Orders act, 1965) has no jurisdiction to proceed against the accused petitioner as it has no jurisdiction to determine the quantum of amount payable to the complainant-opposite party.

  3. Considering the above fact and circumstances, we find substance in this Rule.

  4. Accordingly, the Rule is made absolute.

  5. The proceedings of Criminal Case No. 22 of 2006, pending before the 1st labour Court, Chittagong is hereby quashed.

  6. The complainant opposite party may prefer an application under Section 13(2) of the payment of wages act, 1936 for determination of his claim, if he is so advised.

  7. The order of stay granted earlier by this court stands vacated.

  8. Communicate the order at once.