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Seven Circle Bangladesh Ltd. Vs. Chairman, labour Appellate Tribunal, Dhaka and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 4879 of 2011

Decided On: 15.05.2012

Appellants: Seven Circle Bangladesh Ltd. Vs. Respondent: Chairman, labour Appellate Tribunal, Dhaka and Ors.

Hon’ble Judges/Coram: Tariq ul Hakim and Md. Faruque, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Abdur Razaque Khan and Md. Nurul Huda, Advocates

For Respondents/Defendant: Choudhury Sanaqwar, Advocate

JUDGMENT

Tariq ul Hakim, J.

  1. In this Rule Nisi was issued calling upon the respondents to show cause as to why the impugned judgment and order dated 24-3-2011 passed by the learned Chairman, labour Appellate Tribunal, Dhaka (Respondent No. 1) in Appeal Case No. 74 of 2009 (Annexure-E) setting-aside the judgment and order dated 14-5-2009 in Complaint Case No. 04 of 2006 by the Third labour Court, Dhaka has been passed without any lawful authority and is of no legal effect. In this application under article 102 of the Constitution it has been stated that the impugned judgment of the appellate tribunal has been passed against the judgment and order of the labour Court, which passed its judgment under the Employment of labour Standing Order act, 1965.

  2. Mr. Abdur Razaque Khan, the learned Advocate for the petitioner submits that there is no right of appeal against the judgment and order of the labour Court under the Employment of labour Standing Order act, 1965 which is to be considered as per the section 25(d) of the said act. He further submits that although the Bangladesh labour act, 2006 came into force during the pendency of the complaint case before the labour Court the judgment passed by the said Court could not be appealed against to the labour Appellate Tribunal due to the saving clause in section 353 of the new act. Accordingly he submits that the appeal against the judgment of the labour Court to be labour appellate tribunal was not maintainable and consequently the impugned judgment passed by the said tribunal is to be declared to have been passed without lawful authority and is of no legal effect.

  3. Mr. Chowdhury Sanwar Ali, the learned Advocate for the respondent however submits that at the time of the passing of the judgment by the labour Court, the new act i.e. the Bangladesh labour act, 2006 had already come into force and under its provisions judgment of the labour Court was appealable to the labour Appellate Tribunal and, as such, no illegality has been done by preferring the said appeal to the labour appellate tribunal and the judgment passed by the said tribunal does not call for interference by this Court.

  4. Since the maintainability of the appeal to the labour Appellate Tribunal has been challenged, we will address this point before going into the merits of the Rule. The labour act, 2006 came into force on 11-10-2006 when the dispute between the parties was pending before the labour Court. Section 353(b) of the Bangladesh labour act, 2006 is as follows:–

“Any case or proceeding pending in any Court or tribunal at the time of commencement of this Code shall continue to be heard and settled in those Court and tribunal as if those Acts have not been repealed.”

  1. Although the new act of 2006 repealed the earlier act i.e. the Employment of labour (Standing Orders) act, 1965 nevertheless due to the aforesaid provision pending proceedings before the labour Court would continue to be heard and settled by the same Court as if the said act had not been repealed. In the instant case therefore, the labour Court, which was already in seisin of the matter, completed the hearing and passed the impugned judgment on 24-5-2009 Annexure-C. The respondent being aggrieved by the said judgment preferred an Appeal to the labour Appellate Tribunal soon thereafter. However, since section 25(d) of the Employment of labour (Standing Orders) act, 1965 says that a judgment of a labour Court would be “final” there is no scope for him to prefer any Appeal to the labour Appellate Tribunal. Although the new act of 2006 provided him with such a remedy nevertheless since the dispute was adjudicated under the old act there was no scope for any appeal to the Tribunal as provided under the new act. This finds support from a judgment of the High Court Division in the case of Iqbal Hossain v. Chairman, labour Appellate Tribunal reported in 16 BLC 889 where it was held:–

“It appears from the Annexure-A which relates to Complaint Case No. 21 of 2002 that the said complaint case was filed under section 25 of the Employment of labour (Standing Order) act, 1965. The judgment and order passed under section 25 of the Employment of labour (standing Order) act, 1965 is a final order. Therefore, the appeals filed under section 33(6) of the Bangladesh labour act, 2006 are misconceived one.”

  1. In this connection it may be noted that Appeal is a creature of Statute, it does not arise out of implication. The Employment of labour (Standing Orders) act 1965 does not provide any right of appeal. Furthermore the new act of 2006 also does not provide for any Appeal to the labour Appellate Tribunal from cases decided under the old act.

  2. The submission of the learned Advocate for the respondent, that the act of 2006 is a consolidating act which has consolidated the Industrial Relations Ordinance, 1969, Payment Wages act, 1936 etc. which provide for Appeal to the labour Appellate Tribunal from a judgment of the labour Court and, as such, since the labour Court passed its judgment after the new act came into force, the impugned Appeal was rightly filed before the tribunal is totally misconceived for the reasons stated earlier. Having said so it cannot be said that the respondent is without any remedy. He could have preferred an application under Article 102 to the High Court Division against the order of the labour Court. Since the Appeal is not maintainable we do not wish to go into the merits of the case, as this might prejudice the parties. Accordingly for the reasons stated above, this rule has merit and it is made absolute. The impugned judgment and order dated 24-3-2011 passed by the labour Appellate Court in Appeal Case No. 24 of 2009 is hereby declared to have been passed without lawful authority and is of no legal effect.

There shall be no order as to costs.