S.M. Zahidul Islam and Ors. Vs. Syed Ahmed Chowdhury and Ors.

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Criminal Petition for Leave to Appeal Nos. 142, 1357 of 2011 and 973 of 2014

Decided On: 28.05.2015

Appellants: S.M. Zahidul Islam and Ors. Vs. Respondent: Syed Ahmed Chowdhury and Ors.

Hon’ble Judges/Coram: Surendra Kumar Sinha, C.J., Nazmun Ara Sultana, Syed Mahmud Hossain and Hasan Foez Siddique, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Sara Hossain, Khorshed Alam Khan, Advocates instructed by Zahidul Islam, Advocate-on-Record

For Respondents/Defendant: Abdur Razzaque Khan, Senior Advocate instructed by Taufique Hossain, Advocate-on-Record

Relevant Section: BANGLADESH Labour Act, 2006 - Section 33(9); BANGLADESH Labour Act, 2006 - Section 283

Acts/Rules/Orders: Code of Criminal Procedure (CrPC), 1898 - Section 561A

Prior History: From the Judgment and Order dated 15.02.2011 passed by the High Court Division in Criminal Miscellaneous Case No. 11530 of 2009, From the Judgment and Order dated 31.03.2011 passed by the High Court Division in Writ petition No. 914 of 2011 and From the Judgment and Order dated 18.06.2013 passed by the High Court Division in Writ Petition No.4308 of 2010

Citing Reference:

JUDGMENT

Surendra Kumar Sinha, C.J.

1. The delay in filing these leave petitions are condoned. In these petitions common question of law is involved and accordingly these petitions are disposed of by this order.

2. Facts relevant for the disposal of these petitions are that the petitioner made a complaint against the respondents for taking cognizance of an offence punishable under section 307 of the Bangladesh Shrama Ain, 2006 alleging inter alia that he joined the service of V.F. Asia Ltd. 1st November, 1992 to the post of quality controller which was not an administrative or managerial job; that his last monthly wage was Tk. 1,38,000/- that on 29th November, 2007 he was forcibly made to sign a resignation letter by the respondents over which he lodged a G.D. Entry on 30th November, 2007 with the Gulshan Police Station; that he was entitled to get the termination benefits, compensation and other dues amounting to Tk. 27,36,222/; that he sent to notice on 2nd December, 2007 for payment and as the respondents did not respond to his notice he was compelled to make the complaint.

3. The Labour Court took cognizance of an offence under section 307 of the Ain against the respondents against which they moved the High Court Division a petition under section 561A of the Code of Criminal Procedure for quashing the proceedings mainly on the ground that the complaint petition does not disclose any criminal offence and therefore, the proceedings is an abuse of the process of the court. A Division Bench of the High Court Division quashed the proceedings by the impugned judgment on the reasoning that the ingredients of section 307 of the Ain are absent in the complaint petition, inasmuch as, to attract an offence under the said provision an order of the Labour Court must have been disobeyed by the offender and that the dispute between the parties is of civil nature and therefore, the continuation of the proceedings is an abuse of the process of the court.

4. Ms. Sarah Hossain, learned Counsel appearing for the petitioner has taken us to the complaint petition and submits that section 307 of the Bangladesh Shrama Ain has been incorporated in the Ain with the object to protecting and safeguarding, as far as possible, the workers security in service, and the benefits so conferred on them are to add the increased sense of security which they will enjoy, and the owners should render industrial life more attractive and thus increase the available supply of workmen. The views taken by the High Court Division, it is submitted, is foreign to the object and the purpose for which the penal provision has been included in the Ain. It is contended that the High Court Division erred in law in holding the view that no complaint can be entertained in the absence of any violation of the order made by the Labour Court in failing to consider that the language used in section 307 is so wide to come to the conclusion that for violation of any of the provisions of the Ain, the Labour Court can take cognizance of such offence. It is finally submitted that since the Labour Court on consideration of the complaint was satisfied that a prima facie case has been made out against the respondents and framed charge, the High Court Division erred in law in holding that the complaint does not disclose any offence.

5. A plain reading of section 307 of the Ain manifests that the Labour Court can award a sentence of three months, or with fine of taka one thousand or with both to any person who contravenes any of the provisions of the Ain or any Rules or Regulations or refuses to honour for which no other penalty is elsewhere provided therefor. So the consequence of non compliance of the Ain or Rules not covered by some of the provisions of the Ain is penal.

6. The host of obligations in the Ain requiring a owner/employer or worker to comply with, some of them are penal and some of them are not. If we take the literal meaning of section 307 of the Ain, there is no gainsaying that anyone who violates some of the provisions of the Ain would render liable for prosecution. This is not the purpose and object of the law.

7. The provisions of the Ain ordains obligation to comply with by both the parties i.e. the owner/employer and the worker. Chapter II deals with employment and conditions of service; Chapter III deals with employment of child worker; Chapter IV deals with maternity benefits; Chapter V deals with health protection arrangement; Chapter VI deals with security; Chapter VII deals with health, security related provisions; Chapter VIII deals with welfare arrangement; Chapter IX deals with working hours and leave; Chapter X deals with wages and payment; Chapter XI deals with establishment of Wage Board; Chapter XII deals with payment of compensation to injury related workers due to accident; Chapter XIII deals with trade union and industrial relations; Chapter XIV deals with conciliation, Labour court, legal procedures etc.; Chapter XV deals with participation of workers in company’s profit; Chapter XVI deals with dock workers and security; Chapter XVII deals with workers relating to non-government organizations particularly tea plantation workers’ future fund; Chapter XVIII deals with appointment of apprentice workers and Chapter XX which contains sections 283 to 316 deals with offence, penalty and procedure.

8. According to the complaint the petitioner was forced to submit his resignation letter and he was not afforded with the termination benefits. Now question is whether this refusal of non-payment of the termination benefits constitutes an offence under section 307 of the Ain. According to the petitioner, he was terminated from the service forcefully in violation of law, inasmuch as, no termination notice was served upon him and no termination benefit was given to him. So sections 20 and 25 of the Ain are applicable to his case. In Chapter XIX, 33 remedies for violation any of the provisions of the Ain have been specifically mentioned. Section 283 relates to refusing to comply with any order of the Labour Court, the violator shall be punished. Similarly, for appointment of child or a minor in violation of any of the provisions is also a penal offence. So also for violation of some provisions of Chapter IV, for violation of security or payment of wages at lower rate or for causing severe injury to a worker by accident due to non - service of notice intimating the risk or for preventing from trade union activities or for refusing to implement award or for illegal strike or for inciting workers not to work in violation of law or for removal of a worker without prior permission of Labour Court during the pendency of a dispute before it or for participation of any activities other than the activities of registration of a trade union, the registration of which has been cancelled or for becoming member of more trade unions or for non-appearance in a conciliation proceeding on the date fixed for execution of agreement or for using of authority in his favour by any person who has been authorised under the Ain or for maintaining a false register or document which he knows as incorrect for deceitful purposes or for disclosure of secret information while performing his public duties or for violation of any responsibility by a worker or for preventing the authority in performing its duty in accordance with law.

9. Section 33 provides that for removal of a worker by way of lay-off, termination, discharge or for any other causes, if the worker is inclined to seek remedy, he is required to make redressal petition within thirty days from the date of knowledge of removal to the owner or employer in writing by registered post. If the worker does not get any relief or if he is aggrieved by the action of the employer or owner, he can make a complaint to the Labour Court within thirty days from date thereafter. So there is efficacious remedy available to a worker for violation of section 26 of the Ain under sub-sections (1)-(6) of section 33. The procedure for making a complaint to the Labour Court has been provided in sub-sections (2) and (3), and the procedure of the Labour Court to be followed is provided in sub-sections (4) and (5). The Labour Court can direct the owner or employer to reinstate the worker with or without outstanding wages and also it can reduce the punishment. The order of the Labour Court is appealable. It is clearly provided in sub-section (8) that any complaint under section 33 cannot be deemed as criminal complaint. There is thus clear prohibition to making complaint treating it as penal offence. This sub-section excludes the jurisdiction of the Labour Court to invoke its power as penal offence. It is only in cases where the Labour Courts has passed an order directing the owner or employer to reinstate a worker with or without outstanding wages or altered the conviction to one of minor penalty under sub-section (5) of section 33, the violator may be sentenced not exceeding three months simple imprisonment or with fine or with both under section 283 of the Ain and not otherwise.

10. As noticed above, though the language in section 307 is couched with generic terms, its applicability is circumscribed by the condition that in the absence of any other remedy for violation of any other provisions of the Ain. The marginal note clearly manifests the applicability of section 307 that অন্নান্য অপরাধের দণ্ড that is, the penalty for other offences. True, marginal notes cannot be referred to for the purpose of construing the Act or Ain. Although they form no part of the statute they are of some assistance, inasmuch as, they show the drift or trend of the section and elucidate and illumine its meaning in case of doubt. The court may look at the marginal notes for assistance with reference to such Acts as are framed with the marginal notes and which appear in their publications. In Bengal Immunity Co. Ltd. Vs. State of Bihar (1955) 4 SCR 603, the Supreme Court observed with regard to marginal note to Art. 286:

“The marginal note to Art 286 is ‘Restrictions as to imposition of tax on the sale or purchase of goods’ which, unlike the marginal notes in Acts or British Parliament, is part of the Constitution as passed, by the Constituent assembly (and) prima facie, furnishes some clue as to the meaning and purpose of the article”.

11. If a penalty or remedy is provided elsewhere in the Ain, no penal action can be taken under section 307. Mere non-payment of termination benefits or illegal termination of a worker is not an offence as evident from section 26. It will be an offence if after illegal termination, the Labour Court directed the owner/employer to pay the termination benefits or re-employ him and if the owner/employer disobeys the direction it will be a penal offence under section 283 and not otherwise. The Scheme of the Ain, as discussed above, shows that there are various remedies against non-compliance of the provisions of the Ain, of them, we are concerned about penal remedies and those are provided in sections 283 to, 310. The infringement of some of the provisions such as sections 288, 289, 290, 291, 292, 293, 294, 295, 296, 297, 298, 299, 300, 301, 302, 303, 304, 306 and 309 are penal and rest are punishable with fine except section 283.

12. A combined reading of sections 26 and 33 shows that the violation of them is not penal provisions. The expression ‘penal’ and ‘penalty’ when employed without qualification, are calculated to mislead because they are capable of being construed so as to extend the rule to all proceedings for the recovery of penalties, whether exigible by the State in the interest of the community, or by private persons in their own interest. In ordinary acceptation the word ‘penal’ may embrace penalties for infractions of general law which do not constitute offences against the State. It may for many legal purposes be applied to penalties created by contract. Hence, it when taken by itself, fails to mark the distinction between civil rights and criminal wrongs. (See Huntington V. At trill, 1893 AC 150 (186) (PC).

13. From the view point of penalty or sanction statutes fall into three classes; (a) Act enforceable by criminal remedies; (b) Acts enforceable by civil remedies by way of damages; and (c) Acts enforceable by civil remedies in the form of penalty, forfeiture or disability. The last class consists of Acts in which the sanction for disobedience lies in the right to sue for a specific penalty by civil procedure. A Penal Act has thus two meanings. In the wider sense, it includes the three classes as above; while in the narrower sense, it means the first category. In this context, Crates on Statute Law, Seventh Edn. at page 528 lays down six rules for deciding whether statutes are or are not to be deemed penal:
    (a) Prima facie, the imposition of a fine or penalty or forfeiture by a statute makes the procedure criminal. “Where a proceeding is one to enforce a penalty, or where a proceeding is one-not that must end in a penalty, because the decision may be in favour of the person against whom it is taken but where the proceeding is of such a nature that it may result in a penalty, it is a penal proceeding. “Lord Fitzgerald, in Bradlaugh V. Clarke, (1883) 8AC 354) thus laid down the rule to be deduced from the old authorities. “Where it is ordained by statute that for feasance, misfeasance, or nonfeasance the offender shall forfeit a sum of money, and it is not expressed to whom he forfeits it, in all such cases the forfeiture shall be intended for that Queen, save in cases where the penalty is assessed as compensation to the party injured and a private individual cannot sue."
    (b) That the fine, penalty, or forfeiture is payable to an individual does not per se render the remedy civil.
    (c) But where the penalty is recoverable by action of debt the remedy is civil. A collusive action for penalties has been held to be ineffectual.
    (d) In certain cases the penalty has been held to be in truth liquidated damages and not a penalty in the stricter sense. Where an Act imposes a penalty for its contravention, the question arises whether the penalty is inflicted by way of punishment or by way of compensation for the breach. If the former, the contravention is a criminal offence, and even if the sole remedy for the offence is the statutory penalty, the contravention is nonetheless criminal.
    (e) In certain other cases, the penalty being recoverable only by a person aggrieved, the action is deemed so far penal that Discovery in aid of it is not permitted.
    (f) An Act may be remedial from one point of view and penal from another.

14. A penal statue must be strictly construed. In such statute it is contrary to all rules of contraction to read words into the Act unless it is absolutely necessary to do so. If there is any ambiguity in the words which set out the elements of an Act or omission declared to be an offence; so that it is doubtful whether the Act or omission falls within the statutory words, the ambiguity will be resolved in favour of the person charged. In the words of Lord Esher, MR. in Tuck V. Priester, (1887) 19 QBD 629, ‘If there is reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction’. In W.H. King V. India, 1952 SCR 418, Aiyer, J, observed,

‘As the statute creates an offence and imposes a penalty of fine and imprisonment, the words of the section must be strictly construed in favour of the subject’.

15. In modern times, this means that unless penalties are imposed in clear terms they are not enforceable.

16. Mr. Abdur Razzaque Khan, learned Counsel submits that mere non-payment of termination benefits admissible to a worker under section 26 of Bangladesh Shrama Ain is completely a civil dispute and therefore, the High Court Division has rightly quashed the proceeding. In elaborating his submission, learned Counsel submits that the complainant is claiming termination benefits, compensation and other dues by using the process of a criminal proceedings as a tool to realize them and that the facts disclose in the complaint clearly show that the dispute is of civil nature and therefore, the High Court Division is perfectly justified in quashing the proceedings.

17. Though we do not fully agree with the views taken by the High Court Division, we agree with the ultimate decision that no complaint can be made directly without seeking redress to the Labour Court for non-payment of service benefits.

18. We find no substance in the submission of the learned Counsel for the petitioner, inasmuch as, in view of section 33(9) of the Ain read with section 283 of the Ain, the Labour Court erred in law in taking cognizance of the offence.

19. The petitions are disposed on with the above observations.