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Nizamuddin (Md.) and Ors. Vs. Chairman, labour Appellate Tribunal, Dhaka and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 4828 of 2008

Decided On: 02.02.2014

Appellants: Nizamuddin (Md.) and Ors. Vs. Respondent: Chairman, labour Appellate Tribunal, Dhaka and Ors.

Hon’ble Judges/Coram: Md. Moinul Islam Chowdhury and J.B.M. Hassan, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: K.M. Hafizul Alam, Advocate

JUDGMENT

Md. Moinul Islam Chowdhury, J.

  1. This Rule was issued at the instance of the writ petitioners, Md. Nizamuddin and another to show cause as to why the impugned judgment and order dated 11-2-2008 passed by the respondent No. 1 in Complaint Appeal No. 4 of 2007 passed by the First labour Court, Chittagong in Complaint Case Nos. 2 of 2005 and 3 of 2005 allowing the case by setting-aside the orders of dismissal dated 9-11-2004 and directing the respondent No. 2 to reinstate the petitioners to their former service/post with all back wages should not be declared to have been passed without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper. The relevant facts for disposal of the Rule, inter alia, are that the petitioner No. 1 was appointed on 29-6-1995 as an apprentice in the post of Cone Packer in Coats Bangladesh Limited, (the respondent No. 2 Company) and he was made permanent on 15-1-1996 in the factory situated at Faujderhat. The petitioner No. 2 was appointed in the said factory as a machine operator on 27-3-1993 and he was made permanent on 31-8-1994 in the same factory situated in the same place. When the petitioners were serving under the said respondent No. 2, Coats Bangladesh Ltd., a letter dated 21-10-2008 was issued containing some charges against the present petitioners and they were suspended from their services, they were also asked to reply within 4 days showing cause as to why a disciplinary action should not be taken against them. The petitioners replied denying the allegations. An inquiry committee was formed and the petitioners were request to attend before the inquiry committee giving opportunities to state their side of the case. After completion of the inquiry a report was submitted. The respondent No. 2 passed order on 9-11-2004 dismissing the petitioners from their service. Being aggrieved the petitioners submitted grievance petition on 4-12-2004 under section 25(1)A of the Employment of the labour (Standing orders) act, 1965 praying for withdrawal of the dismissal order which was rejected by the respondent No. 2 on 25-12-2004.

  2. The petitioners thereafter filed the complaint case Nos. 2 of 2005 and 3 of 2005 in the First labour Court, Chittagong making the present respondent No. 2 as Second Party, who contested the case by filing the written statements. In the hearing of the case both the present petitioners and the respondent No. 2 examined two witnesses each. After hearing the First labour Court, Chittagong set-aside the order of dismissal by its judgment and order dated 6-3-2007 and directed the respondents to reinstate the petitioners. Being aggrieved the present respondent No. 2 preferred the appeals in the labour Appellate Tribunal being Appeal Nos. 4 of 2007 and 5 of 2007. After hearing both the appeals analogously the labour Appellate Tribunal passed its judgment and order setting-aside the judgment and order passed by the First labour Court, Chittagong and also passed an order to send the case on remand to the First labour Court, Chittagong for hearing of the argument of the parties afresh.

  3. The present petitioners filed this writ petition making the judgment of the Appellate Tribunal as an impugned order and the Rule was issued thereupon.

  4. Mr. KM Hafizul Alam, the learned Advocate, appearing along with the learned Advocate Mr. Ibrahim Khalil, for the petitioner submits that appeal is a substantive right and this right cannot be invoked unless there is any specific provision for appeal in the existing laws, as such, no appeal lies after repeal of the Employment of labour (Standing Orders) act, 1965 under the new labour act, 2006 hence the impugned judgment and order is not sustainable under the law and the same is liable to be declared to have been passed without lawful authority and is of no legal effect.

  5. The learned Advocate further submits that the impugned judgment has been passed in violation of the existing law as there is no provision for appeal present to the saving clause containing in section 353(2) (a) of the labour act, 2006 against the decision of labour Court after repealing the Employment of labour (Standing Orders) act, 1965 as such the impugned judgment is not sustainable in law and the same is liable to be decaled to have been passed without lawful authority.

  6. In addition to the above submissions the learned Advocate submits that an effect of repeal of a provision by the subsequent law should be considered as per the provision laid down under section 6(c) of the General Clauses act which provides importance to consider the intention of the legislative authority for repealing any enactment, in particular, to consider whether any right provided by the repealed law could curtail by introducing a new law or not, as such, admitting and allowing the instant appeal has curtailed the right of the labour which is a vested fundamental right guaranteed under the Constitution of Bangladesh, as such, the impugned judgment and order should be declared passed without lawful authority and the Rule should be made absolute.

  7. The Rule has been opposed by the respondent No. 2, Coats Bangladesh Ltd., by filing an Affidavit-in-Opposition contending, inter alia, that the petitioners were given ample opportunities before their dismissal from services, as such, the dismissal order were passed by respondent No. 2 under the provision of law. It is also contended that the petitioner were committing gross misconduct which had no noxious with any industrial or any alleged Trade Union activities rather those were deteriorating the peaceful situation in the factory for running the factory smoothly and for the interest of both respondent No. 2 as the owner of the factory as well as for the interest of the other labours. The petitioners were causing trouble for the growth of production in the factory. It is also contended that the petitioner’s complaint cases were heard and judgments were passed by the respondent No. 2. Being aggrieved present appeals were preferred under the existing law of the country.

  8. Mr. Ashraful Hadi, the learned Advocate, appearing along with the learned Advocate Mr. Tanim Hossain, for the petitioner submits that the present respondent No. 2 preferred the appeals before the labour Appellate Tribunal under section 33 of the Bangladesh labour act, 2006বাংলাদেশ শ্রম আইন-২০০৬ which came into effect on 11-10-2006 whereas the First labour Court, Chittagong passed its judgment on 6-3-2007, as such, the respondent No. 2 had been vested with a right to prefer the appeal against the said judgment and order who has jurisdiction and competency to entertain the appeals, as such, the writ petition is not maintainable under law and the Rule should be discharged.

  9. The learned Advocate further submits that section 353(2)(a) of the Bangladesh Srama Ain, 2006 provides that anything done or any action taken under the provisions of the repealed laws insofar as the same is not inconsistent with the Bangladesh Srama Ain, 2006 should be deemed to have been done, taken under the corresponding provisions of the Bangladesh Srama Ain, 2006. Therefore, the judgment dated 6-3-2007 passed by the First labour Court Chittagong ought to be deemed to have been passed under the corresponding provision of the Bangladesh Srama Ain, 2006 and consequently, the said judgment would be appealable under section 33 of the Ain, 2006. In view of the said statutory scheme, it is submitted that the instant writ petition is misconceived and hence the Rule is liable to be discharged.

  10. The learned Advocate for the respondent No. 2 further submits that upon a total reading, it is manifestly clear from the Bangladesh Srama Ain, 2006 that it was promulgated by the Parliament to consolidate and amend the laws relating to employment of labour, which had hitherto been in operation. The provisions of the said Ain, 2006 demonstrates a clear intention of the legislature to bring about and put into practice the substantial changes to the earlier laws relating to employment of labour and cure the defects in the said old law, as such, the respondent No. 2, after completing the pending proceeding in the First labour Court of Chittagong passed its judgment on 6-3-2007, had been vested with a right to prefer an appeal before the respondent No. 1 and the respondent No. 1 had jurisdiction to entertain such appeal and hence the Rule issued in the instant writ petition is liable to be discharged.

  11. After considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the writ petition along with the Annexures therein and also considering the Affidavit-in-Opposition along with the Annexures therein, it appears to us that the petitioners were employees as labour under the respondent No. 2, Coats Bangladesh Ltd., on 29-6-1995 and 23-3-1993 respectively while they were in service as labour the respondent No. 2 brought some allegations against the petitioners and suspended them from services after submitting an inquiry wherein the petitioners were called in to respond against the allegation brought against them. A report was submitted by the inquiry committee and the respondent No. 2 dismissed them from service. Being aggrieved by the said order of dismissal the petitioners serve grievance application under section 25(1)A of the Employment of labour (Standing Orders) act, 1965 (Act VIII of 1965) for withdrawal of the dismissal orders. As the orders were not withdrawn the petitioners filed complaint cases in the First labour Court, Chittagong under section 25(1)A of the said act, 1965. It was heard in presence of both the parties and the labour Court passed its judgment and order on 6-3-2007 setting-aside the order of dismissal against the present petitioners. Being aggrieved two appeals were preferred by the respondent No. 2, Coats Bangladesh Ltd., on 4-4-2007 challenging the judgment and order passed by the labour court and the appellate court by its judgment allowed the appeal by setting-aside the judgment and order of the labour Court as well as sending the cases on remand for hearing of the arguments of both the parties. The petitioner filed this writ petition challenging the judgment and order passed by the labour Appellate Tribunal on the ground of maintainability and propriety of the said judgments.

  12. The important questions to be decided by this court are that, firstly, whether a forum of appeal was available by the present respondent No. 2 after the judgment and order passed by the labour Court on 6-3-2007 when the saving clauses provided under section 353(2) (Kha) of the labour act, 2006 and secondly whether this writ petition can settle the matters of dispute between the parties or not.

  13. Regarding the first question as to the main ability of an appeal in a circumstance when the earlier law namely the Employment of labour (Standing Orders) act, 1965 was repealed and replaced by the provisions of the labour act, 2006. In this regard the learned Advocate for the petitioner submits that under section 25(1)(d) of the act, 1965 provides that the decision and order of a labour Court shall be final and no appeal was existing at the time when the law should be applicable in the instant case. Section 25(1)(d) of the act, 1965 is reproduced below:–

“(d) in deciding the matter, the Court may pass such orders including orders regarding cost, as it may deem just and proper and it may, in appropriate cases, require, by such order, the reinstatement of the complainant thereof and such order shall be final.”

  1. Most important factor in this regard is that the above provision of law was repealed during pendency of the complaint cases in the labour court by the provision of the Bangladesh labour act, 2006 বাংলাদেশ শ্রম আইন-২০০৬ in particular, the saving clause under section 353 (2) (Kha) of the act, 2006 provides the law as to the continuity of hearing and conclusion of a case under repeal provision of law in the following manner-

“(খ) এই আইন প্রবর্তনের তারিখে কোন আদালত বা ট্রাইব্যুনালে বিচারাধীন কোন মামলা বা কার্য ধারা উক্ত আদালত বা ট্রাইব্যুনালে চালু থাকিলে এবং তৎকর্তৃক শুনানী ও নিষ্পত্তি করা হইবে, যেন উক্ত আইন রহিত হয় নাই।”

  1. On the basis of the above legal provision the learned Advocate appearing for the petitioners contents that there is no provision for appeal, as such, the appeals preferred by the present respondent No. 2 and the judgments and orders passed by the labour Appellate Tribunal were not within the frame work of law, as such, the impugned order cannot be considered as lawfully.

  2. However the learned Advocate appearing for the respondent No. 2 opposes the aforementioned contentious placed by the learned Advocate for the petitioners by submitting that there is no doubt as to the provision of section 25(1)(d) of the act, 1965 as to the finality of the labour Court judgment but that provision has been repealed by introducing a most coherent and beneficial law by the provision of the act, 2006, for example a clear and transparent provision of appeal against the judgment and order passed by the labour Court. As to the question of section 353(2) (Kha) of the act, 2006, he categorically submits that the saving clause is only applicable for a case which is pending for hearing in a court or a tribunal and the said court is entitled to hear and conclude under the provision of the repealed law. Nothing more or nothing less. Now the question before us is whether the appeals preferred by the present respondent No. 2 were filed under the valid provision of law or not. We consider that section 25(1)(d) of act, 1965 was repealed on 11-10-2006 by enacting the labour act, 2006 containing a saving clause for the cases pending for hearing in a labour court or a tribunal only pending matter and conclude only under the provision of the previous law.

  3. In this regard our apex court laid down certain principle regarding application of a subsequent law in a previously pending case. Our apex court, in particular, considered the legal position as to the maintainability of an appeal during pendency or after the conclusion of the trial court decision and applicability of a law introduced before a possible appeal although in a different circumstance. In a criminal case for crime against humanity namely, Government of Bangladesh vs Abdul Quader Molla reported in 22 BLT (AD) (2014) 8 passed by His Lordship Mr. Surendra Kumar Sinha, the Justice of the Hon’ble Appellate Division in the Criminal Appeal Nos. 24-25 of 2033 laid down following principle:

“If the necessary amendment to a statute shows a clear intention to vary existing rights or affecting the rights of the parties to pending actions, the court must give effect to the intention of the legislature and apply the law as it stands even through there is no express reference to pending actions. The presumption against retroactive operation has no application to enactments which affects only the procedure and practice of the court. No person has a vested right in any course or procedure but only the right of prosecution or defence in the manner prescribed for the time being, by or for the court in which he sues, and if the act of Parliament alters that mode of procedure he can only proceed accordingly to the altered made.”

In the said case to come to a conclusion in the following manner:-

“In view of what discussed above, I find no merit in the contention of the Razzak. Except one case which does not support him, the other cases cited by the learned counsel have no bearing to the facts and circumstances of the matter and I feel it not proper to dwell with the same since those cases are quite distinguishable on facts and law, and they have no manner of application in the appeal. Consequently, 1 hold that the appeal at the instance of the Government is maintainable.”

  1. Although the above decision was not exactly similar to the instant Writ Petition because the cited decision is a criminal case but the principle is applicable and appropriate in the instant writ petition for deciding case in a similar circumstances where the question has been raised as to the maintainability of an appeal against the labour Court under repeal provision of law. We consider that the new provision of law repealed the earlier law by providing the provision for appeal which was not applicable earlier. We also consider the saving clause provided under section 353(2)(Kha) of the act, 2006 and we consider that the labour Court heard and concluded the case under the provision of the previous law for the saving clause but as per as the appeals are concerned we consider that appeals were not pending and do not come within the ambit of the above saving clause as these were not pending when the earlier law was repealed and new law came in force. We, therefore, consider that the appeals preferred by the present respondent No. 2 are maintainable. However, we have perused the impugned judgment and order passed by the labour Appellate Tribunal which has not been decided on merit but only on some matters or sequences in which the labour Court passed its judgment and order. Therefore, we consider that justice would be done if the labour Appellate Tribunal, Chittagong hears the appeals afresh. The impugned judgment passed by the labour Appellate Tribunal, Chittagong in the Complaint Appeal Nos. 4 and 5 of 2007 on 11-3-2008 is hereby set-aside subject to the following direction. The labour Appellate Tribunal, Chittagong after hearing both the parties afresh to conclude and decide the appeals on merit by itself.

  2. Accordingly this Rule is disposed of.

  3. The labour Appellate Tribunal, Chittagong is hereby directed to hear the appeals being labour Appeal Nos. 4 and 5 of 2007 afresh along with the arguments for the respective parties and to conclude and decide within 3 (three) months from the date of receipt of a copy of the judgment of this court. We consider that the labour Appellate Tribunal, Chittagong, by its own judgment has raised question about the capability and competency of the First labour Court, Chittagong, thus, sending the cases on remand to be heard by the labour Court cannot be a justiciable decision.

  4. The First labour Court Chittagong is hereby directed to transmit the records of the complaint case Nos. 2 and 3 of 2005 immediately before the Appellate Tribunal, Chittagong. The interim order of stay granted at the time of issuance of the Rule upon operation of the impugned judgment and order dated 11-3-2008 (Annexure-P) passed by the respondent No. 1 in labour Appeal No. 4 of 2007 and 5 of 2007 is hereby recalled and vacated.
    The office is directed to communicate the judgment and order to the court concerned immediately.