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Mehreen Asaf Vs. Chairman, Labour Court

Citation: 66 DLR (2014) 256

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 8958, 8960, 8308 and 8309 of 2010

Decided On: 13.01.2013

Appellants: Mehreen Asaf Vs. Respondent: Chairman

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

Counsels: For Appellant/Petitioner/Plaintiff: Abdul Khalegue and Syed Moyeenul Huq, Advocates

For Respondents/Defendant: A.S.M. Shafiqul Islam Biplob, Advocate, Rajik-al-Jalil, D.A.G., S.M. Quamrul Hassan, AAG and Yesmin Sultana (Shamsad), A.A.G.

JUDGMENT

  1. Since the questions of law and facts involved in the aforesaid writ petitions under Article 102 of the Constitution are almost same, they were taken up together for hearing. Rules in the aforesaid writ petitions were issued calling upon the respondents to show cause as to why the criminal proceedings pending before the respective labour Courts under sections 307 read with section 310 of the Bangladesh labour act, 2006 should not be declared to have been initiated without lawful authority and is of no legal effect.

  2. In Writ Petition No. 8958 and 8960 of 2010, both the respondent Nos. 2 filed the Bangladesh labour Law (Criminal) Case No. 432 and 423 of 2010 before the First labour Court, Dhaka under sections 307 and 310 of the labour act, 2006 (hereinafter called “the said Act”) alleging, inter alia, that they joined the petitioners’ establishment B. 2 B. Excellence Ltd. on (2-9-2006 and 1-3-2008 respectively without any appointment letters. While serving as Line QC under the Sewing Quality section, they were orally terminated on 22-4-2010 along with some other workers without any prior notice. Upon such termination, although their employers were obliged under law to pay Taka 44,004 and Taka 39,004 respectively on account of their arrear wages and termination benefits etc, they were paid nothing. They then initiated the impugned criminal proceedings, after serving a legal notice, on the allegations that the employer-petitioner, by such non-payment, violated the provisions under sections 3 and 123 of the said act and, as such, liable to be punished under section 307 of the same.

  3. In Writ Petition Nos. 4308 and 4309 of 2010, both the respondent Nos. 2 also filed Bangladesh labour Law (Criminal) Case No. 121 of 2009 and 533 of 2008 before the First labour Court, Dhaka under sections 307 and 310 of the said act, alleging, inter alia, that they joined the establishment of the petitioners namely “দৈনিক যায় যায় দিন”, on 1-4-2006 and 1-6-2006 as Assistant Editor and Translation Editor respectively. However, they were terminated from their services on 23-9-2008 and 29-6-2008 without any prior notice. Upon such terminations, they were entitled to receive Taka 3,88,622 and Taka 5,42,747 respectively as per the 7th Wage Board Decisions on account of termination and other benefits. However, they were paid only Taka 1,94,117 and Taka 2,28,391 respectively. Thus, they initiated the impugned proceedings, after serving Legal Notices, against the petitioners on the allegation that the petitioners had violated the provisions of the said act.

  4. The petitioners in Writ Petition No. 8958 and 8460 of 2010 obtained the aforesaid Rules after obtaining bail from the concerned labour Court. The petitioners in Writ Petition Nos. 4308 and 4309 of 2010 also obtained bail from the concerned labour Court and challenged the impugned proceedings through the said writ petitions after the concerned labour Court had rejected their applications for discharge.

  5. The legal question involved in all the aforesaid Rules is same which is that whether or not the petitioner-employers are liable to be prosecuted for punishment under sections 307 read with section 310 of labour act, 2006 or under any other provisions for their alleged violation or noncompliance of the provisions of the said act or Rules or Regulations or Scheme made there under without or before exhaustion of legal avenues as provided by section 33 and/or section 132 of the said act.

  6. At the very outset, the learned advocates for the petitioners have referred to two decisions of this Court, namely the cases of Sayeed Ahmed Chowdhury vs. S.M. Zahidul Islam (Zahid), 63 DLR 212 (decided under criminal jurisdiction) and Kazi Rokanuddin Ahmed vs. labour Court, 63 DLR 382 (decided under writ jurisdiction) (hereinafter called “Sayeed Ahmed’s case” and “Kazi Rokanuddin’s case” respectively).

  7. The cumulative submissions of both the learned Advocates (Mr. Abdul Khaleque and Mr. Syed Moyeenul Huq), appearing for the above mentioned two sets of petitioners respectively, are that since the dispute involves determination of facts, namely whether the concerned workers were at all terminated or not and as well as determination of actual monetary liability of the employers, the remedies available to the workers are either grievance proceedings under section 33 or proceedings under section 132, and under both the provisions, the labour Court may resolve the disputes like a Civil Court. Thus, according to them, since the labour Court, in exercise of criminal jurisdiction under section 307 or other relevant provisions of the said act cannot be in a position to resolve those bona fide disputes involving civil liabilities of the employers, the impugned criminal proceedings should not be allowed to continue.

  8. On the other hand, Mr. Rajik-al-Jalil learned Deputy Attorney-General, appearing with the leave of the Court, submits that the decisions in Sayeed Ahmed’s case and Kazi Rokanuddin’s case have not decided the questions of law involved in the matters in clear terms. According to him, section 307 criminal proceeding is an independent proceeding which is not in any way dependent on the exhaustion or initiation of the proceedings either under section 33 or section 132. He further submits that whether a worker will take recourse to section 33 or section 132 of the said act is dependent on the desire of the concerned worker as both the provisions made it optional for the said worker, and if a particular worker does not intend to take recourse to those two provisions, he will not be rendered bereft of any remedy in so far as the penalty for violation of the provisions of law by the employers is concerned.

  9. Heard the submissions and considered the materials on record. In view of section 30, once the employment of a worker has terminated due to his retirement, discharge, retrenchment, dismissal or termination etc, the appointing authority is obliged to pay his entire dues (প্রাপ্য সকল পাওনা) within thirty working days from such end of service. On the other hand, section 123 oblige the employers to pay the entire wages প্রদেয় সকল মজুরি of the concerned worker within seven working days from the end of his employment on account of retrenchment, discharge, removal, dismissed etc. Besides, in case of Wage Board Decision for the news paper employees, section 148 made it mandatory for the employers to comply with the decisions of the Wage Board. It also recognized the rights of the newspaper employees/workers to receive minimum wages declared by the said Wage Board Decision. Section 149 even made it prohibitory for the employers to pay any wages below the rate determined by the Wage Board.

  10. Now, the question is whether the legal obligations to pay as mentioned in sections 30, 123 and 148 and the prohibition under section 149, are mere literature in the statute book or they have any meaningful purpose. If we accept the submissions of the learned advocates for the petitioners, the said obligations as mentioned under sections 30, 123 and 148 and the prohibition under section 149 will be rendered to be mere letters in the statute book without any teeth to bite. Section 33 and 132 provides for civil remedies in accordance with certain procedures and limitation period through which the labour Court has power to settle the dispute in exercise of its civil jurisdiction and may, in an appropriate case, direct the employer to even pay the entire dues or entire wages, as the case may be. Penalties for non-compliance of any such direction of the labour Court have also been mentioned in the relevant provisions. These provisions are optional for the workers concerned. The issue is what if any person, in this case the employers, violates, or does not comply with, any specific provisions of the said act, Rules, Regulations or Scheme there under. This aspect is dealt with by some specific penalty provisions enumerated from sections 283 to 306 under Chapter 19 of the said act, and section 307 is there as a residue penalty provision. Section 307 runs as follows:

“৩০৭। অন্যান্য অপরাধের দন্ড। কোন ব্যক্তি এই আইন বা কোন বিধি, প্রবিধান বা স্কীমের কোন বিধান লংঘন করিলে বা মানিতে ব্যর্থ হইলে এবং ইহার জন্য উহাতে অন্য কোন দন্ডের বিধান না থাকিলে, তিনি তিন মাস পর্যন্ত কারাদন্ডে, অথবা এক হাজার টাকা পর্যন্ত অর্থদন্ডে, অথবা উভয় দন্ডে দন্ডনীয় হইবেন”।

  1. Upon reading the relevant Petition of Complaints as annexed to the aforesaid writ petitions, it appeals that the basic allegation of the concerned workers is that the employers concerned either violated the provisions of the said act or did not comply with the specific provisions of law. Although in Writ Petition No. 4308 and 4309 of 2010 the Petition of Complaints alleged violation of sections 148 and 149 and specific penalty for such violation is provided under section 289, this non-mentioning of section 289 or wrong mentioning of section 307 should not in any way vitiate the entire proceedings initiated against the employer if it is found that the allegations made in the Petition of Complaints do disclose the culpability punishable under the said act. Therefore, our prima-facie view is that the criminal proceedings concerned in the aforesaid writ petitions should not be nipped in the bud and they should be allowed to proceed. The labour Court in those proceedings will of course not endeavour to determine exact liability and will not pass direction to pay like in the proceedings under sections 33 and 132. Nevertheless, it will go into the merit of liability just to determine the culpability as to whether there was any violation of, or non-compliance with, any provisions on the part of the employers. Any bona fide dispute, if raised by the employers, can also be taken care of in a criminal proceeding either at the time of framing of charge or subsequently. We find indirect support of our this view in an unreported judgment of our High Court Division dated 17-4-2002 in Writ Petition Nos. 2100-2111 of 1999.

  2. Although the legal issues involved in the instant writ petitions were not elaborately discussed and/or answered in Sayeed Ahmed’s case and Kazi Rokanuddin’s case as referred to above, it is palpable that the basic ratio intended to be expressed by their Lordships in those cases is that no criminal proceedings can be initiated or proceeded against the employers under section 307 or any other provisions for the following reasons:
    a) no order of labour Court was violated or non-complied with (Sayeed Ahmed’s case);
    b) the concerned worker claimed some dues which involve calculation and, as such, a civil dispute (Sayeed Ahmed case);
    c) initiation of criminal proceedings under sections 307 and 310 is “a misconception of Law” as the concerned work failed to take prior recourse to grievance proceedings under section 33 (Kazi Rokanuddin’s case);

Thus, it is very much understandable that, with all due respect to the Hon’ble Judges, we find it is very difficult to agree with the basic ratio as intended to be settled or expressed in the Sayeed Ahmed’s case and Kazi Rokanuddin’s case. Therefore, the instant writ petitions should be referred to the Hon’ble Chief justice for decision by a Full Bench as per the provisions of Chapter-VI, Rule-1 of the High Court Division Rules. Accordingly, let the aforesaid Writ Petitions be placed before the Hon’ble Chief Justice for a decision by a Full Bench in view of Chapter-VII, Rule-1 of the High Court Division Rules.