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Labour Laws
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Md. Liakot Ali and Ors. Vs. Government of Bangladesh and Ors.

Citation: 67 DLR (2015) 441

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 16 of 2015

Decided On: 24.05.2015

Appellants: Md. Liakot Ali and Ors. Vs. Respondent: Government of Bangladesh and Ors.

Hon’ble Judges/Coram: Md. Emdadul Haque Azad and Muhammad Khurshid Alam Sarkar, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Choudhary Sanawar Ali, Advocate

For Respondents/Defendant: Mahbubul Haque and Md. Abdul Hye Bhuiyan, Advocates

JUDGMENT

Md. Emdadul Haque Azad, J.

  1. Subject-matter of the Rule: The dispute raised in this case relates to the election of Trade Union named Gas Transmission Company Karmachari Union (shortly the Trade Union). Two groups of people, being the two petitioners on the one side and respondent No. 3 and some others on the other, claim to be the elected office bearers of the Trade Union. The opposing claims of the two groups resulted in BLA Case No. 642 of 2014 and the 2nd labour Court, Dhaka passed order dated 24-9-2014.This order was set aside by the judgment dated 15-12-2015 passed by the labour Appellate Tribunal (shortly the Appeal Tribunal) in Appeal No. 595 of 2014. This judgment is under challenge in this writ petition. Earlier a Rule Nisi was issued in this case about the lawful authority of the Appeal Tribunal in passing the said judgment dated 15-12-2014 and also about the legality thereof.

  2. By that judgment the Appeal Tribunal directed respondent No. 4 being the Director of labour and Registrar of Trade Unions (shortly the labour Director) to supply to the appellant i.e. the present respondent No. 3 a copy of the list of office bearers of the Trade Union as elected on 15-5-2014. The Appeal Tribunal further directed the learned Chairman, Second labour Court, Dhaka to dispose of BLA Case No. 642 of 2014 instituted by respondent No. 3 for a direction so that the labour Director supplied the said list.

  3. Petitioners’ case:

The two petitioners, Md. Liakot Ali and Md. Abdul Kader, claim that they are the workers of the Gas Transmission Company Ltd. (shortly the Company), and that they were elected as President and Secretary of the Trade Union for the tenure of 2009-2011.

  1. However respondent No. 3 and some other people formed a new Trade Union under the name Gas Transmission Company Ltd., Karmachari League (shortly the Karmachari League) and obtained registration. So the petitioners filed BLA Case No. 15 of 2011 in the First labour Court, Dhaka for cancellation of the registration of the Karmachari League as a Trade Union of the Company. In that case, the present respondent No. 3 stated on oath that he had relinquished the membership of the old Trade Union and joined the new Trade Union being the Karmachari League.

  2. Subsequently the petitioners came across an undated application signed by respondent No. 3 for restoration of his membership of the old Trade Union. So the petitioners as President and Secretary, rejected that application on recorded reasons.

  3. Due to pendency of the BLA case No. 15 of 2011, the election of the Trade Union for the tenure 2011-2013 could not be held. So the petitioners continued to hold their respective office of the Trade Union.

  4. However, under demand of the members of the Trade Union the petitioners called a General Council Meeting on 7-5-2014. An Election Sub-committee was formed and election was held on the same day. In this election the two petitioners were elected for the next tenure of 2014-2016 as President and Secretary along with others. On 21-5-2014, the Election Sub-committee sent to the labour Director (respondent No. 4) the list of the newly elected office bearers of the Trade Union including those of the petitioners.

  5. But the petitioners came to know that respondent No. 3 has forged the signatures of the petitioners and others and prepared some documents showing a General Council Meeting of the Trade Union on 15-5-2014 and that some people also sent to the labour Director the list of the office bearers of the Trade Union as being elected on 15-5-2014. So on 8-6-2014 the petitioners submitted a complaint to the labour Director.

  6. In the meantime, responded No. 3 filed BLA Case No. 642 of 2014 in the 2nd labour Court, Dhaka without impleading the petitioners as parties. So the petitioners filed an application for being added as parties to the case. After hearing both sides, the said labour Court, by order dated 24-9-2014, allowed petitioners application and directed the labour Director to conduct the election of the CBA/Executive Committee as per the directives of the High Court Division as contained in judgment dated 8-7-2014 passed in WP No. 7372 of 2011 and No. 4316 of 2014.

  7. Against that order, the present respondent No. 3 as the First party of the said BLA Case No. 642 of 2014, preferred Appeal No. 595 of 2014 before the Appeal Tribunal. After hearing both sides, the Appeal Tribunal, by the impugned judgment, set aside the said order passed by the 2nd labour Court and illegally directed the labour Director to supply to respondent No. 3 a copy of the list of the office bearers elected on 15-5-2014 within seven days from the receipt of that order. Hence the present writ petition.

  8. Case of respondent No. 3:

respondent No. 3, Md. Lutfur Rahman, has filed an affidavit-in-opposition. He admits that the two petitioners were the elected President and Secretary of the Trade Union for the tenure of 2009-2011 and that the respondent had once resigned as a member of the Trade Union.

  1. However respondent No. 3 claims that the petitioners intentionally filed BLA Case No. 15 of 2011 to delay the election for the next tenure. So, for preventing the illegal activities of the petitioners, respondent No. 3 and others formed a new Trade Union called the Karmachari League, but respondent No. 3 ultimately resigned from the Karmachari League, because of the delay in disposal of the BLA Case No. 15 of 2011 instituted by the petitioners. Then he applied to the petitioners for restoration of his membership of the old Trade Union (Karmachari Union) and it was duly accepted and he rejoined the old Trade Union on 14-12-2012.

  2. Respondent No. 3 further claims that no General Council Meeting of the Trade Union was held on 7-5-2014 as claimed by the petitioners. Rather a real General Council Meeting was held on 15-5-2014 and the respondent No. 3 himself was duly elected as the President of the Trade Union along with other office bearers.

  3. Accordingly respondent No. 3 submitted an application to the labour Director for supplying a list of the newly elected office bearers of the Trade Union, but the later delayed in supplying the list. So respondent No. 3 filed BLA Case No. 642 of 2014 in the Second labour Court, Dhaka which passed order dated 24-9-2014 directing the labour Director to hold fresh election. So respondent No. 3 preferred Appeal No. 595 of 2014 wherein the Appeal Tribunal passed the impugned judgment and order dated 15-12-2015.

  4. Respondent No. 3 further claims that the petitioners filed a complaint dated 8-4-2014 to the labour Director raising objection to the election of respondent No. 3 and others. But the petitioners, on 26-6-2014, withdrew their complaint

  5. Respondent No. 3 has stated that, in compliance with the direction of the Appeal Tribunal as contained in the impugned judgment, the labour Director has already supplied to respondent No. 3 the list of the elected office bearers of the Trade Union and therefore the Rule has become infructuous and it should be discharged.

  6. Deliberation at the hearing. At the hearing of this case, Mr. Choudhury Sanwar Ali, the learned Advocate for the petitioners, submits that the impugned judgment and order dated 15-12-2014 passed by the Appeal Tribunal is a totally non - speaking order and it is self-contradictory as well, because the Appeal Tribunal has, on the one hand, directed the labour Director to supply the list of the disputed office bearers and, on the other, remanded the BLA Case to the labour Court for disposal of the same dispute on merit.

  7. Mr. Choudhury, the learned Advocate, next submits that the subject matter of the pending BLA case is the legality of the election of the respondent No. 3 and others as the office bearer of the Trade Union and it can be decided only upon recording evidence by the labour Court which was not one, but the Appeal Tribunal without the support of any evidence, passed the direction and thereby pre-empted the adjudication of the dispute by the labour Court.

  8. Mr. Choudhury, the learned Advocate, next submits that the labour Director has in his written statement/Report (Annexure-1 series-part), clearly stated the fact of existence of two rival group of claimants to be the elected office bearers of the same Trade Union and also about his inability to supply any list to any of the two groups, and yet the Appeal Tribunal observed that the said Report proves nothing.

  9. Mr. Choudhury, the learned Advocate next submits that the learned Chairman of the 2 labour Court Dhaka recorded his decision correctly, and yet the decision was illegal, because the order is silent as to whether the labour Court was duly constituted as required by section 214 of the labour act, 2006 to the effect that the labour Court shall consist of three persons, being the Chairman and one representative from the শ্রমিকপক্ষ and another from মালিকপক্ষ and decision is also silent as to whether the learned Chairman endeavored to obtain the non-binding opinion of the said representative.

  10. Mr. Choudhury, the learned Advocate next submits that in view of such illegality in the constitution of the labour Court the Appeal Tribunal should have simply set aside the order passed by the labour Court and should have remanded the BLA Case for disposal thereof on merit, and that the Appeal Tribunal should not have passed any direction to supply the list nor should have recorded any finding on the merit of the case.

  11. Mr. Choudhury, the learned Advocate next submits that, by the Rule issuing order, operation of the impugned judgment passed by Appeal Tribunal was stayed and therefore the fact of supply of any list by the labour Director during pendency of this Rule was illegal and does not affect the disposal of this Rule on merit.

  12. In reply Mr. Md. Mahbubul Haque, the learned Advocate for the respondent No. 3, submits that the order dated 24-9-2014 passed by the labour Court was illegal as the said court was not legally constituted and therefore the impugned judgment passed by the Appeal Tribunal setting aside the labour Court’s order was lawful and proper.

  13. Mr. Haque, the learned Advocate, next submits that the Appeal Tribunal was convinced that an election was duly held on 15-5-2014 and accordingly the said Tribunal passed the impugned judgment and order containing the direction to the labour Director to supply the list of the elected office bearers, and it has been duly complied with by the labour Director, and there is no legal bar to the adjudication of the pending BLA Case by the labour Court.

  14. Findings and Decisions:

It is evident that the dispute between the parties arose due to the fact that both groups claim to have been elected in the General Council Meeting allegedly held on two dates being on 7-5-2014 as claimed by the petitioners and on 15-5-2014 as claimed by respondent No. 3.

  1. It is further evident that, in the pending BLA Case No. 642 of 2014, the 1st party being present respondent No. 3 has prayed for direction so that the labour Director supplies to the 1 party (respondent No. 3) the list of the elected office bearers.

  2. In the above context, the other dated 24-9-2014 (Annexure H) was passed by the 2nd labour Court in BLA Case No. 642 of 2014. It appears that this order contains decision on two aspects namely allowing the application of the present petitioners for being added as second party to that case and direction to the labour Director was directed to hold election of the Trade Union in accordance with the guidelines as recorded by another Division Bench of this Court in the judgment dated 8-7-2014 passed in WP No. 7372 of 2011 and WP No. 4316 of 2014.

  3. Against the said order passed by the labour Court, the 1st party being respondent No. 3 preferred Appeal No. 595 of 2014 and the Appeal Tribunal passed the impugned judgment dated 15-12-2014 (Annexure-I).

  4. On perusal of this judgment (Annexure-I), it is revealed that the learned Advocates for both sides made submission before the Appeal Tribunal to the effect that, the members of the labour Court were not present and that there was no effort on the part of the learned Chairman of the labour Court to consult the members. The Appeal Tribunal recorded the following finding.

“I find substance in their submission and thus the impugned order dated 24-7-2012 passed by the learned Chairman labour Court, Dhaka is hereby set aside.”

  1. There is nothing on record to show that the 2nd labour Court, Dhaka while passing the order dated 29-9-2014 was duly constituted as required by section 214 of the labour act, 2006 to the effect that the labour Court shall consist of three members, being the Chairman and two representatives. Similarly there is nothing on record to show that the learned Chairman before passing that order took any effort to obtain the non-binding opinion of the two representative members.

  2. In view of such position, we hold that the order dated 24-9-2014 (Annexure-H) passed by the Second labour Court, Dhaka in BLA Case No. 642 of 2014 was passed without lawful authority and was legally and correctly set aside by the Appeal Tribunal on the ground of lack of jurisdiction of the Chairman alone to act as labour Court.

  3. However the principal dispute raised in this writ petition is with regard to the 2nd part of the impugned judgment passed by the Appeal Tribunal which is quoted below (under lines added):

“Further it appears from the letter dated 26-6-2014 that complaint against present appellant was withdrawn which proved that the contention of the appellant is legal. On the other hand a report was submitted by the Director of labour which proves nothing.

Hence respondent No. 1 is directed to supply certified copy of the list of Office Bearers elected on 15-5-2014 within 7(seven) days from the receipt of the copy of this order.

Meanwhile, the learned Chairman of the labour Court below is directed to dispose of the case on merit after taking evidence preferably within 2 (two) months from the date of receipt of the copy of this order.

This order shall be treated to be final order subject to the decision of the labour Court below”.

  1. It is evident that the Appeal Tribunal not only sent the BLA case on remand for disposal of the same on merit but also passed an interim direction to the labour Director to supply the “list of Office Bearers elected on 15-5-2014….”

  2. The petitioners claim to have been elected not on 15-5-2014, but on 7-5-2014, which means that this aspect of the dispute needs to be decided on merit upon recording evidence.

  3. It further appears that, in passing the above direction the Appeal Tribunal recorded its own finding on two other questions of fact, namely withdrawal of the complaint lodged by the present petitioners, and the merit of the report submitted by the labour Director.

  4. With regard to the report of the labour Director, the Appellate Tribunal recorded a finding that it “proves nothing”. We find from the copy of the said Report (Annexure-L) that the labour Director has stated the detailed facts with regard to the claim of the two rival groups as the elected office bearers of the same Trade Union and also about his inability to supply the list of office bearers to any of the rival groups.

  5. In that report the labour Director has further referred to the direction of this Court as contained in the judgment dated 8-7-2014 passed in Writ Petition Nos. 7372 of 2011 and No. 4316 of 2014 with regard to guidelines for holding election under supervision of the labour Director.

  6. The claim of the two rival groups as stated by the labour Director are disputed questions of fact that can only be adjudicated upon recording evidence and therefore the finding of the Appeal Tribunal that the aforesaid written statement/report submitted by the labour Court “proves nothing” is not based on any legal evidence.

  7. With regard to withdrawal of the complaint lodged by the petitioners, they have stated in this case that they never withdrew it and that the alleged withdrawal letter was a product of forgery. It is not clear as to the basis of the Appeal Tribunal’s finding on the issue of withdrawal.

  8. All the above noted questions of fact can be decided only upon recording proper evidence. But there is nothing on record to show that in the BLA Case No. 642 of 2014 any evidence was at all recorded. The Appeal Tribunal itself was also aware of this position and remanded the BLA Case for disposal on merit after recording evidence. So there was no legal scope on the part of the Appeal Tribunal to take decision on the aforesaid disputed questions of fact.

  9. It is noted that under section 216(1) and section 218(7) of labour act, 2006, the labour Court and the Appeal Tribunal respectively has the lawful authority to act as a Civil Court and a Civil Appellate Court respectively in the matter of recording evidence and taking decision on a dispute other than those of criminal nature. This means that the Appeal Tribunal should not have recorded the aforesaid findings on the disputed questions of fact before any legal evidence was recorded. The Appeal Tribunal exercised its appellate jurisdiction in passing the impugned judgment not in accordance with law particularly section 218(7) of the labour act, 2006.

  10. Accordingly, we hold that the impugned judgment is liable to be partly set aside so far it relates to the finding that the present petitioners had withdrawn their complaint and so far it relates to direction to the labour Director for supplying the list of the office bearers of the Trade Union.

  11. The other part of the impugned judgment dated 15-12-2014 passed by the Appeal Tribunal namely on setting aside of the labour Court’s order dated 24-9-2014 and on remanding the BLA case was lawfully and correctly passed on the preliminary ground that the 2nd labour Court, Dhaka was not duly constituted while passing its order dated 20-9-2014.

  12. It appears from the copy of the judgment dated 8-7-2014 in Writ Petition No. 7372 of 2011 and W.P. No. 4316 of 2014 that specific guidelines were given by another Division of this court about the manner of holding election of all Trade Unions under supervision of the labour Director as per the labour act, 2006. So we further hold that those guidelines are to be followed in the case of election of the instant Trade Union.

  13. In view of the above the Rule is made absolute in part. The impugned judgment and order dated 15-12-2014 passed by the labour Appeal Tribunal in Appeal No. 595 of 2014 is hereby declared to be of no legal effect so far it relates to the positive finding on the withdrawal of the complaint lodged by the petitioners to the labour Director and so far it relates to the direction given to the labour Director (respondent No. 4) to supply a copy of the list of the office bearers of the Gas Transmission Company Karmachari Union. The Second labour Court, Dhaka is directed to hear BLA Case No. 642 of 2014 and to dispose of the same including the application of the petitioners to be added as party in accordance with law after following the requirements of sections 214, 216 and other provisions of the labour act, 2006. If the said labour Court decides that election of any of the claimant groups was not held in accordance with law and the direction contained in the judgment passed in WP Nos. 7372 of 2011 and No. 4316 of 2014 the said labour Court shall ensure that the election is to be held in accordance with law and keeping in view of the said directives.

Send at once a copy of this judgment and order to the Appellate Tribunal and also to the Second labour Court, Dhaka.

No order as to costs.