Act/Law wise: Judgment of Supreme Court of Bangladesh

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Employment of Labour (Standing Orders) Act, 1965
Section/Order/Article/Rule/Regulation Head Note
Section 2(v)

The term "worker", contem­plates not only a person to be employed in the work for productive purposes in any commercial or industrial establishment, but also embraces a person who on being employed does any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the term of employment be express or implied. Managing Director, Rupali Bank Limited vs Md Nazrul Islam Patwary and others 48 DLR (AD) 62. ....View Full Judgment

Section 2(V)(ii)(8)

Mere designation is not sufficient to indicate whether a person is a 'worker' or an 'employer', but it is the nature of the work showing the extent of his authority which determines whether he is a worker or employer. Dosta Textile Mills vs SB Nath 40 DLR (AD) 45. ....View Full Judgment

Section 2

In the absence of compliance with the statutory requirements under section 25 of the Act of 1965 no application made under section 34 of the Ordinance can be converted to one under the Act and as such there is no scope for remitting the case to the Court below. Sabita Dutta vs Manager, Cinema Palace, Chittagong and another 51 DLR (AD) 215. ....View Full Judgment

Section 2(V)

Worker—The Dacca Improvement Trust (D.I.T.) is not a commercial or industrial establishment and its employees are not workers within the meaning of section 2(V) of Employment of Labour (Standing Orders) Act, 1965 — Such employees cannot enforce the provisions of section 18 of that Act relating to subsistence allowance pending inquiry into misconduct in a proceeding under section 34 of the Industrial Relations Ordinance, 1969 — The terms and conditions of such employees are regulated by the Town Improvement Act and Rules frarped thereunder. Chairman, DI. T. and another Vs Chairman, ‘2nd Labour Court and another, IBLD(AD)462 ....View Full Judgment

Section 2(V)

‘Worker’—Definition of—Mere designation is not sufficient to indicate whether a person is a ‘worker’ or an ‘employer’ but it is the nature of the works showing the extent of his authority, which determines whether he is a worker or employee—Mere supervisory capacity will not bring him to the category of a worker. Senior Manager, Messrs Dust Textile Mills Ltd. and another Vs. Sudhaiisu Bikash Nath; 8BLD(AD)66 ....View Full Judgment

Section 2(b)

Mere designation is not sufficient to indicate where a person is a “worker” or an ‘employer, but it is the nature of the work showing extent of his authority which determines whether he is a worker or employer. M/s. Pioneer Garments Limited represented by its Managing Director Vs Md. Abul Kalam Azad and ano., 2O BLD (AD) 62. ....View Full Judgment

Section 2(V)

Definition of ‘Worker”
The term ‘worker’ as defined in the Section 2(v) of the Act contemplates not only a person to be employed in the work of a commercial or industrial establishment for productive purposes but also it includes a person who on being employed does any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the term of employment be express or implied. But a person who is employed in a managerial, administrative or supervisory capacity and does perform specified functions is not a worker. The Managing Director, Rupali Bank Limited Vs. Md. Nazrul Islam Patwary and others, 15 BLD (AD) 169. ....View Full Judgment

Section 2(b)

Mere designation is not sufficient to indicate where a person is a “worker” or an ‘employer, but it is the nature of the work showing extent of his authority which determines whether he is a worker or employer.
M/s. Pioneer Garments Limited represented by its Managing Director Vs Md. Abul Kalam Azad and ano., 2O BLD (AD) 62.
Ref: Senior Manager, MIs. Dosta Textile Mills. Ltd. vs. Sudhansu Bikash Nath, 40 DLR (AD) 45—relied. ....View Full Judgment

Section 4(2)

No work no pay– Section 4(2) of the Act, 1965, acquired a right to be permanent in their respective posts– The petitioners were appointed as casual workers on ‘no work no pay’ basis against the permanent posts initially for 90 days, because of their continuous services therein for 7/8 years without any gap and thus, they having completed the period of probation of three months as provided in section 4(2) of the Act, 1965, acquired a right to be permanent in their respective posts, the High Court Division did not commit any illegality in making the Rules absolute. ...Bangladesh Biman Corporation=VS=Md. Zahangir Farazi, (Civil), 2020 [9 LM (AD) 323] ....View Full Judgment

Sections 5(3) and 17(3)(d)

Worker — Loss of lien to appointment— Worker to be kept on the badli list’ only if there be a badli list’-—The law does not warrant the maintenance of a ‘badli list’ as a matter of compulsion. The Manager, MC Gregor and Balfour (Bangladesh) Limited, Dacca Vs. Chairman, First Labour Court, Dacca and others; 3BLD (AD)8 ....View Full Judgment

Section 5

read with Convention of the Rights of the Child (CRC)
Article-12 read with The Guardians and Wards Act, 1890 Section-17(3)
The applicability of provisions of International instruments
Unless provisions of international instruments are contrary to our domestic laws, the beneficial provisions may profitably be referred to and implemented in appropriate cases. AnikaAli Vs. Rezwanul Ahsan 21 BLT (AD) 185. ....View Full Judgment

Section 6

Application for D.N.A. test It appears from the record that the plaintiffs filed the suit for dower and maintenance of the plaintiff Nos. 1 and 2 on assertion, inter alia, of due solemnization of marriage. The plaintiffs filed an application for D.N.A. test of plaintiff No.2 and the defendant on 20.07.2006 against which the defendant filed written objection and after hearing the parties the learned trial Court rightly and legally allowed the application for D.N.A. Test. The High Court Division rejected the revisional application holding that since there is no merit in this revisional application and it must fail. The learned Courts below rightly allowed the application for D.N.A. Test for finding out the truth and the real status of the plaintiff Nos.l and 2 and the defendant. Md. Ijal Uddin Munshi Vs. Mst. Rokeya Khatun & Anr 20 BLT (AD) 87. ....View Full Judgment

Section 16

Discharged from service on the ground “continued ill-health—Respondent No. 2 was performing the functions of Head Sarder in the winding department of the appellant. He was continually absent from 19-9-80 due to his illness. His last application for leave is dated 25-2-81. In the said application he stated that he was improving, but the medical certificates appended thereto is silent about his recovery and failed to recover from the said illness during the course of 5 months. The appellant employer has rightly takes the view that respondent No. 2 was suffering from ‘continued ill-health” and would not be in a fit and sound condition of health to perform his assigned duties. [Para- 11] M/S. Karim Jute Mills Ltd. Vs. Second Labour Court 5 BLT (AD)-289 ....View Full Judgment

Section 16

The employer has rightly connected the nature of illness of the worker, the duration and relationship of the illness with the nature of job performed by him and has rightly come to a conclusion as to his further usefulness in service bonafide on records and such use of power by the employer cannot be hedged with interpretive conditions which make the exercise of power impossible or much too difficult.
The words ‘such other reasons not amounting to misconduct’ occurring in section 16 of the Act should be interpreted ejusdem generis with the words ‘physical or mental incapacity’. M/s. Karim Jute Mills Ltd. Vs Chairman, Second Labour Court, Dhaka and another, 17 BLD (AD) 209. ....View Full Judgment

Section 16

Continued ill-health and physical incapacity— two different aspects with different consequence—
"Continued ill-health" and Physical and mental incapacity as envisaged in section 16 are two different terms with different consequences. In the case of continued ill health the employee may recover the power to work but the case of physical and mental incapacity may not be recouped. The interpretation of the terms of "continued ill health" should not be put to any rigid formula rather it should be left for consideration of the employer depending on the circumstances of individual case so that the exercise of the power of the employer does not become too difficult or impossible. Messers Kartm Jute Mills Ltd. Vs. Chairman Second Labour Court and another 2, MLR (1997) (AD) 203. ....View Full Judgment

Sections 17(3) and 25( d)

Labour Court has the power to convert an order of dismissal into one of termination of service in appropriate circumstances. Bank of Credit and Commerce vs Tajul Islam 45 DLR (AD) 61. ....View Full Judgment

Section 17(3)(b)

Admittedly, respon­dent No. 1 did not pray for his reinstatement in service with back wages and the relief sought for was in declaratory form and the Labour Court found that such relief was not available to the respondent even though he had a good case for directing reinstatement. The High Court Division granted relief by way of reinstatement with 50% back wages. It is well settled that the High Court Division cannot sit as a court of appeal in such matters and act as a civil appellate authority and hence the High court Division acted beyond its jurisdiction. Bangladesh Tobacco Company Ltd and another vs Md Azizul Huq & another 7 BLC (AD) 119. ....View Full Judgment

Section 17(3)

The High Court Division affirmed the judgment and order passed by the Labour Court. The respondent No.2 was charged with making over payments which constitutes misconduct within the meaning of section 17(3) of the Employment of Labour (Standing Orders) Act, 1965; inquiry was held and he was given full opportunity of being heard and the inquiry committee found him (respondent No.2) guilty of the offence charged with, and he was dismissed from his service. The impugned judgment is liable to be set-aside. Since the respondent No.2 was a worker and served for 15 years in the appellant company, the Appellate Division is inclined to allow him (respondent No.2) to have some benefits and accordingly, allowed the appeal, but with modification, inasmuch as the order of dismissal is converted into an order of termination and the respondent No.2 shall be given termination benefits as per­missible under the law. Chittagong Jute Manufacturing Co Ltd vs Chairman 1st Labour Court, Ctgll BLC (AD) 83. ....View Full Judgment

Section 18(6)

It is purely a matter of discretion of the employer to take into consider­ation previous good services of an employee before awarding him punishment. Serajul Islam vs Bangladesh 45 DLR (AD) 100. ....View Full Judgment

Section 18

Worker—The Dacca Improvement Trust is not a commercial or Industrial establishment and his employees are not workers within the meaning of section 2(v) of the Employment of Labour (Standing Orders) Act, 1965—Such employees cannot enforce the provision of section 18 of that Act relating to subsistence allowance pending inquiry into misconduct in a proceeding under section 34 of the Industrial Relations Ordinance, 1969 — Terms and conditions of such employees are regulated by the Town Improvement Act and Rules framed there under. Chairman, D.L T. and another Vs. Chairman, 2nd Labour Court and another; 1BLD (AD)462 ....View Full Judgment

Section 18

Apart from the provisions of Section 18 of the Act, a domestic tribunal is not bound by any procedural law or the law of evidence. Bangladesh Paper Mills Ltd Vs. Chairman, Third Labour Court and another, 14 BLD (AD) 97. ....View Full Judgment

Sections 19 & 25

The respondent though a worker his civil suit is maintainable as the proviso to section 25(1) does not provide him any scope for redress as the order of termination was not passed for trade union activity or for depriving him of benefits specified under section 19. Managing Director, Rupali Bank Limited vs Md Nazrul Islam Patwary and others 48 DLR (AD) 62. ....View Full Judgment

Section 19

An order of termination — Appellant is the employer and respondent No. 2, a driver of the appellant’s establishment — on the allegations of unauthorised absence for 155 days the employer drew a regular proceeding against the driver charging him with misconduct — an enquiry was held by the employer during which the driver was heard in person and on conclusion of the enquiry a report was submitted finding him guilty of misconduct by unauthorised and wilful absence. On the basis of this report he was dismissed from service. He filed a grievance petition before the employer which was rejected. Thereupon he filed a complaint before the Labour Court, under section 25 of the Act. The Labour Court did not find any error in the procedure adopted for the domestic enquiry or in the order of dismissal. Nevertheless, the Labour Court ordered for the driver’s re-instatement. The Labour Court’s order was unsuccessfully challenged, before the High Court Division — finds it difficult to defend the Labour Courts order for reinstatement as contended by the learned Advocate for the respondent No. 2 — Held: In view of this position, we need not restore the order of dismissal and we think it a fit case for termination instead under section 19 of the Act with all termination benefits. [Para - 6] Chittagong Urea Fertilizer Ltd. Vs. Labour Court Ctg & Ors. 3 BLT (AD)-201 ....View Full Judgment

Section 19

The Labour Court is power to convert order of dismissal to one of termination with all benefits under Section 19 of the Act is derived from the general principle that a dismissed worker should not be foisted upon his employer except when the dismissal order is illegal. Chittagong Urea Fertilizer. Ltd Vs. The Chairman, Labour Court, Chittagong & another, 14 BLD (AD) 153. ....View Full Judgment

Section 25(b)

The Appellate Division observed that the High Court Division on consideration of the materials on record held that there is no material to prove that the management was hostile or annoyed for any reason towards the appellant. The order of termination of service appeared from it was a termination simpliciter and the appellant failed to establish that the establishment terminated his service in the garb of dismissal by adducing sufficient material. The Court cannot go behind the order of termination to gather the motive of the order. When there is no expressed words in the impugned order itself which throw a stigma on the employee, the Court would not embark upon a roving enquiry to gather the motive of the order. Accordingly, this appeal is dismissed. .....Md. Shamsul Islam =VS= B.J.M.C & others, (Civil), 2016-[1 LM (AD) 206] ....View Full Judgment

Section 25(c) & (d)

The Employment of Labour (Standing Orders) Act, 1965
Section 25(c) & (d) read with
The Code of Civil Procedure, 1908
Order 9, Rule 4
Restoration–
The Employment of Labour (Standing Orders) Act, 1965 is a special law and the Labour Court not being a civil court can not take recourse to and apply the provisions under Order 9, Rule 4 of the Code of Civil Procedure for restoration of any proceeding before it in terms of the said Order and Rule if the proceeding before it is dismissed for default. But it (Labour Court) can certainly, in a just and appropriate case, interfere with its own order of dismissal for default in following the provisions of the said law in substance to prevent any miscarriage of justice. .....Crescent Jute Mills Co. Ltd =VS= Chairman, Labour Court, (Civil), 2018 (1) [4 LM (AD) 101] ....View Full Judgment

Section 25(1)(a)

Grievance procedure– In a case of admitted service of grievance petition by the worker within the specified time, the formality of sending the same by registered post should not be interpreted in a way detrimental to the interest of the worker. Bangladesh Road Transport Corporation vs Md Esken Mallick and another 56 DLR (AD) 125. ....View Full Judgment

Section 25(1)(b)

This Court can as well for doing complete justice in any cause treat the application under section 25(1)(b) as an application under the Payment of Wages Act for realisation of the benefits consequent upon retirement of the deceased worker. BWDB and others vs Chairman, Divisional Labour Court, Khulna and others 55 DLR (AD) 5. ....View Full Judgment

Section 25 (1) (b)

Respondent No. 2 was employed as a permanent worker of the petitioner’s Jute Mills. On December 8, 1985 respondent No. 2 was served with a charge sheet on the allegation that he was caught red-handed on December 7, 1985 while stealing 14 bundles of finished goods (sewed sacks) of previous date with a view to showing the same to have been sewed by him in order to get more wages—an enquiry committee held enquiry in the matter and found respondent No. 2 guilty of the charges, 1ev- elléd against him and accordingly he was dismissed from his service. He submitted a grievance petition before the petitioner which was rejected and then he filed the complaint case in the Labour Court — on consideration of the evidence, Labour Court allowed the complaint case. The Labour Court’s order was unsuccessfully challenged before the High Court Division — Held: Admittedly there was no removal of any goods from the possession of the petitioner mills by respondent No. 2 and as such the Labour Court rightly found that there was no offence of theft. At the most the delinquent might have been charged for an attempt to realise enhanced wages by showing increased number of work; but the delinquent was charged for committing the offence of theft. As such the charge framed against the delinquent was a misconceived one and it cannot be said that the Labour Court sat on a judgment over the findings of the domestic enquiry committee — the petition is dismissed. [Para-5] Khulna Labour Court & Ors Vs. Chairman Khulna Labour Court & Ors. 3BLT (AD)-203 . ....View Full Judgment

Section 25(d)

Under Section 25(d) of the Act, a Labour Court is competent to pass “such order as it may deem just, and proper and require reinstatement of the complainant in appropriate cases.” Chittagong Urea Fertilizer Ltd Vs. The Chairman, Labour Court, Chittagong& another, 14 BLD (AD) 153. ....View Full Judgment

Section 25(1)

Grievance Procedure
As proviso to section 25(1) of the Act does not provide the aggrieved security guard of the Bank any scope for lodging any complaint seeking any redress thereunder, as the order of his termination of employment though made under Section 19 of the Act, was not passed for his trade union activities and it did not deprive him of the benefits specified in Section 19 of the Act, Section 25 of the Act does not stand as a bar to his civil suit against the order of termination simpliciter The Managing Director, Rupali Bank Limited Vs. Md. Nazrul Islam Patwary and others, 15 BLD (AD) 169. ....View Full Judgment

Section 25(1)(b)

Section—25(1)(b) ‘Proviso’
Employment of Labour (Standing Orders) (Amendment) Ordinance, 1986, ‘Proviso’
It provides that no complaint shall lie against an order of termination of employment of a worker under section 19, unless the service of the worker concerned is alleged to have been terminated for his trade union activities or unless the worker concerned has been deprived of the termination benefits. A labourer could not make any complaint against the order of his termination before the Labour Court unless his case falls within the exceptions mentioned in the said proviso, that is to say, he was not an officer of a Registered Trade Union and his employment was not terminated for his trade union activities nor was he deprived of the termination benefits. The plaintiffs suit for a declaration that the order of termination is illegal, void etc. could not be maintainable before the Labour Court and under such circumstances, the Civil Court’s jurisdiction is not ousted. General Manager, Sonali Bank and an. other Vs Md. Abu Khayer and others., 17 BLD (AD) 183. ....View Full Judgment

Section 26

Quashing of criminal proceeding — Whether jurisdiction of the High Court Division has been taken away to quash proceedings of a criminal case before the Labour Court under MLO 19 of 1982 — Jurisdiction of the High Court Division has not been taken away expressly by MLO 19 of 1982 — High Court Division can entertain the application for quashing the proceedings. under section 26 of the Employment of Labour (Standing Orders) Act, 1965 — Code of Criminal Procedure (V of 1898), S. 561A — Martial Law Order No. 19 of 1982. Asaduzzaman and another Vs. Chairman, Second Labour Court and others; 5BLD (AD) 196 ....View Full Judgment

Section 45

An application for comparison of the disputed thumb impression in question - allowed the prayer exparte
The main issue in controversy between the parties being the genuineness of the deed of gift, the thumb impressions appearing therein should be examined by an expert for the purpose of enabling the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit. Though the High Court Division allowed the prayer exparte, the defendant having challenged the said order in the appellate forum, we are of the view that whatever error the High Court Division has committed in allowing the prayer exparte has been cured by availing the appeal before this Division. As the examination of the disputed thumb impression is necessary for the purpose of resolving all controversies involve in the suit between the parties, we are of the view that such exparte order has occasioned no failure of justice. Kabir Ahmed Vs. Korban Alt & Ors 21 BLT (AD) 130. ....View Full Judgment

Section 73

Report of the finger Print expert
The case of Jaspal Singh, Vs. State of Punjab, reported in AIR 1979 SC 1708 wherein Indian Supreme Court held that the science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. We endorse the aforesaid view. Nanda Rani Mondal & Anr Vs. Md. Abdus Sukur & Ors 18 BLT (AD) 497. ....View Full Judgment

Section 74

The High Court Division held that certified copies of the kabuliyats, the originals of which were not called for nor produced were admissible in evidence as public documents. We are constrained to observe that the findings of the High Court Division are not at all based on the materials on record regarding title and possession of the plaintiffs in the suit land and the findings of the High Court Division that the certified copies of the kabuliyats without calling for the originals or the volume from the office of the Registrar is admissible in evidence is not the correct proposition of law. Abdul Quddus Matabbar Vs. YousufAli Bayati &Ors 17 BLT (AD) 45. ....View Full Judgment

Section 102

The owms, is squarely on the claimant of the building to prove that the building is not an abandoned property.
The proposition of law has been settled by this court in the case of Government of Bangladesh Vs. Md. Jalil and others reported in 48 DLR(AD)10 where it has been laid down that the onus, is squarely on the claimant of the building to prove that the building is not an abandoned property. The Government has no obligation either to deny the facts alleged by the claimant or to disclose the basis of treating the property as abandoned property merely because the same is disputed by the claimant. Ali Hossain & Ors Vs. Chairman, 1s' Court of Settlement & Anr 20 BLT (AD) 216. ....View Full Judgment

Section 102 with Section 114(g)

Presumptions of fact-burden of proof Regarding Muslim marriage - A marriage may also be proved presumptively by general conduct of the parties over which I have discussed above. The sources of presumptions of fact are, (i) the common course of natural events, (ii) the common course of human conduct, and (iii) the common course of public and private business. When a presumption operates in favour of a party, the burden of proof is on the opponent and when a burden of proof is on a party, there is a presumption operating in favour of the opponent. A presumption of fact is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved. The difference between Hanafi and Shia School is that in Hanafi law in regard to valid retirement has the same effect as consummation in respect of (1) the confirmation of Mahr; (2) the establishment of descent, or paternity; (3) the necessity for the wife observing iddat; (4) the wife's right to maintenance and residence during iddat; and (5) the prohibition by conjunction against the husband marrying the wife's sister or other four women with her. In respect of above five matters, the rights of the parties would be same as though consummation has taken place. Mst. Momtaz Begum Vs. Anowar Hossain 20 BLT (AD) 143. ....View Full Judgment