SUPERINTENDENT, JAMES FINLAY PLC Vs. CHAIRMAN, LABOR COURT

JUDGEMENT

(1.) The second-party respondent obtained leave to appeal against the judgment and order dated 26-8-1998 passed by a Division Bench of the High Court Division in Writ Petition No. 670 of 1994 making the Rule absolute and sending back the Complaint Case No. 122 of 1992 to the respondent No. 1 for fresh trial with direction to decide the case in the light of the observations made in the impugned judgment.

(2.) The appellant moved the writ petition challenging the legality of the judgment and order dated 20-12-1993 passed ex parte by the respondent No. 1 in Complaint Case No. 122 of 1992 under section 25 of the Employment of Labour (Standing Order) Act, 1965 directing the appellant to reinstate the respondent No. 2 in his service with all back wages. The respondent No. 2 was appointed by the appellant on 15-2-1989 as a Storekeeper of Balisera Central Hospital, PS Sremangal, Moulvi Bazar and was discharged from service on 2-10-1992 for misconduct in accordance with the provision of section 17(3)(b) of the Employment of Labour (Standing Order) Act, 1965. On 20-7-1992 at 7-00 AM the respondent No. 2 sent information to the Estate Medical Officer that on opening the store house he found that the glass of one window was broken and one rod of the same window was curved up and he suspected theft in the medical store. The EMO then and there rushed to the store and on his direction an inventory of the medicine in the store was prepared and found that medicine worth Taka 72,541 was missing. A first information report was lodged with Sree Mongal Police Station; the officer-in-charge of the Police Station came to the place of occurrence and started investigation; suspected the respondent No. 2 and he was taken to police station for interrogation. The respondent No. 2 confessed to the investigating officer that he took away the entire quantity of medicine from time to time with the aid of others. The police forwarded him to the Court and the learned Magistrate remanded him to custody. The police after completion of investigation submitted charge-sheet against him under sections 461 and 380 of the Penal Code. That on 1-8-1992 the respondent No. 2 was served with a charge-sheet under section 7(3) (b) of the Act asking him to submit his written explanation on 8-8-1992 against the charges. The respondent No. 2 submitted his written explanation denying the allegations brought against him and contending that he had no complicity with the alleged theft of medicine from the store and that he was innocent. The explanation submitted by the respondent No.2 was found not satisfactory and a three-member Committee was constituted for holding an enquiry into the charges brought against respondent No.2 and asked him to appear before the Enquiry Committee on 26-8-1992 with his witnesses if any. The Enquiry Committee held the enquiry on 25-8-1992, 27-8-1992 and 28-8-1992 and in his presence witnesses were examined but except one witness he declined to cross examine others. He examined himself as a witness but did not examine any other witness in support of his defence. That the Enquiry Committee while holding the enquiry found that only one rod of the window was bent about 6/7 inches and it was not possible for any person to enter into the store from outside by that bend. Attention of the respondent No.2 was drawn by the Enquiry Committee to the above fact and he also expressed his doubt about it; the Enquiry Committee further found that one set of key of the stores used to remain with respondent No.2 and the second set was kept in the safe of the Chief Medical Officer; and that the respondent No.2 alone used to open the store house by his keys and no one else could unlock it; he alone received the medicine and distributed the same. The Enquiry Committee after a fair enquiry submitted its report dated 19-9-1992 unanimously finding him guilty of the charges brought against him. Upon consideration of the enquiry report as well as the extenuating circumstance that the respondent No.2 was the first offender during his service career, the appellant No.1 instead of dismissing the respondent No.2, discharged him from service under sub-section (2) of section 17 read with section 18(6) of the Standing Order Act vide letter dated 2-10-1992. On receipt of the said order of discharge from service dated 2-10-1992, the respondent No.2 submitted a grievance petition to appellant No. I under section 25(1)(b) of the said Act. The appellant No.1 by its letter dated 27-10-1992 replied to the said grievance petition upholding its earlier decision dated 2-101992. Thereafter, the respondent No.2 filed Complaint Case No. 122 of 1992 under section 25(1)(b) of the said Act before the respondent No.2, Chairman, 2nd Labour Court, Dhaka challenging the order of his discharge from service dated 2-10-1992 passed by appellant No. 1 and prayed for an order for his reinstatement in service with back wages.

(3.) The appellant No. 1 alone contested the said complaint case by filing a written statement denying the material allegations made in the complaint petition and stating that respondent No.2 was an employee of the writ petitioner No. 1 and was appointed and discharged from service by the writ petitioner No. 1 and has no connection whatsoever with appellant No. 2, as such, the case is within the exclusive jurisdiction of Labour Court, II, Chittagong vide Notification dated 22nd April, 1980 and Notification dated 4-11-1991 and the 2nd Labour Court, Dhaka had no jurisdiction to entertain the case. The appellant No. 1 after filing written statement, filed a petition raising the question of jurisdiction but the respondent No. 1 did not give any decision on the question of jurisdiction. The further case of the appellant No. 1 was that since the respondent No.2 has not alleged any grievance of unfairness or bad faith or malafide on the part of the Enquiry Committee in his petition of complaint, the Labour Court had no jurisdiction to interfere with the findings of the Enquiry Committee because the Labour Court is not a Court of appeal having no occasion to consider whether the respondent No.2 is guilty or not.