P L D 1969 Dacca 410 (PLP)

SALAHUDDIN AHMED, J.‑In this Rule the petitioners have challenged the legality of an order passed by the First Labour Court of East Pakistan on a complaint made to the Court by respondents Nos. 2 and 3 under section 25 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 (East Pakistan Act No. VIII of 1965) hereinafter called the Stand ing Orders Act. The petitioners have a shop including a Tailoring Department wherein respondents Nos. 2 and 3 were employed as tailors. Respondent No. 2 Abu Hossain was first employed by the petitioners in the year 1960 while respondent No. 3 was so employed in January 1963. It is the case of the petitioners that both the employees‑respondents worked as piece‑rated workers and both of them voluntarily ceased to work. The reason for such cessation of work was that in the case of respondent No. 2 he was asked to make adjustments in regard to certain advances made to him and as a result of this demand he stopped work on and from the 29th of October 1965. Similarly, respondent No. 3 was rebuked for spoiling some clothes and he absented himself on and from the 4th February 1966. Both the respondents were asked by the petitioners to resume their work but they failed to do so. Instead, the two respondents filed two separate cases, namely, respondent No. 2 filed case No. 1 of 1966 and respondent No. 3 filed Case No. 384 of 1966 before the First Labour Court, East Pakistan, complaining that the respondents had been dismissed venally by the petitioners on the ground that the petitioners were winding up the Tailoring business. In the two cases, before the Labour Court, which were hear, together and disposed of by one judgment, respondent No. 2 Abu Hossain prayed for payment of various amounts under several heads while respondent No. 3 in addition to his claim for various amounts under different heads, also prayed for reinstatement. Before the Labour Court, the petitioners' defence was that respondent Abu Hossain was asked on the 16th of October 1965, to adjust the advance of Rs. 78.18 paisa against the latter's subsequent weekly payment but he, did not agree to do so and stopped work from the following day and did not return to duty although the petitioner's asked the respondent to resume his duties. Similarly, in the case of respondent No. 3 S. M. Chand, the petitioners' defence was that the former stopped work of his own accord and did not resume his duty although asked to do so by a letter, dated the 14th of March 1966. On a consideration of the evidence before it, the Labour Court found that the services of both the respondents were terminated by the petitioners without any fault on the part of the respondents and without giving, them the requisite notices. The Court, therefore, passed orders allowing each of the two respondents certain sums of money under four different heads, namely: certain amount in lieu of the requisite notice; certain sum of money by way of compensation; certain amount for unavailed annual leave; and certain amount by way of arrears of wages. The prayer for re‑instatement made by respon dent No. 3 was, however, rejected. Mr. Islam, learned counsel appearing on behalf of the petitioners, has contended that, inasmuch as none of the respondents is a "permanent worker", the Award given by the Labour Court under section 19 of the Standing Orders Act is without jurisdiction. Mr. Islam has further contended that it is not a case of termination of services but a case of deser tion, pure and simple. Mr. Islam has not disputed that the respondents are not "worker" within the meaning of the Standing Orders Act. Section 4 of the Standing Orders Act classifies workers into six classes, namely: (a) apprentices, (b) badlis, (c) casual, (d) permanent, (e) probation and (f) temporary. Each of these terms has been defined in section 2 of the Act. Mr. Islam has contended that at least respondent No. 2 is a "casual worker". "Casual worker" has been defined in section 2 to mean "a worker whose employment is of a casual nature". Having regard to the definition of the various term, Mr. Islam has conceded that none of the respondents is an "apprentice" or a " Badli " or a " probationer " It, therefore, remains for us to consider whether any one of the respondents is covered by the description "casual", "perma nent" or "temporary". We have already noticed the definition of the expression "casual worker". "Permanent worker" has been defined to mean "a worker who has been engaged on a permanent basis or who has satisfactorily completed the period of his probation in the shop or the commercial or industrial establishment." "Temporary worker" has been defined to mean "a worker who has been engaged for work which is essentially of temporary nature and is likely to be finished within a limited period." On the facts disclosed in the petition as well as before the Labour Court and also on certain admitted facts, it appears to us that none of the respondents can be described as a "casual worker". The petitioners have not said that the Tailoring Department of the shop was itself of a "casual" nature or it was engaged in work which was essentially of a "temporary" nature which was likely to be finished within a limited period. From the averments made in the petition as well as the statements contained in the letters written by the petitioner, there is no doubt that the respondents are "permanent workers" under the Standing Orders Act. Other wise there is no meaning in asking them to resume their duties. In this connection, Annexure "A" to the petition which is self‑explanatory may be referred. The annexure which is addressed to respondent No. 3 contains the following statements `With reference to your application, dated 10‑2‑66 we have to say that while you were in employ you spoiled some of the cloth for which you were warned as the company was incurring loss. On this you left us all of a sudden without giving any notice and had submitted the above application. Please, therefore, take notice that we consider you still in your employ and if you fail to report to duty within a week from the date of receipt of this letter we shall be compelled to dispense with your service." Both respondents Nos. 2 and 3 have categorically stated in their affidavits‑in‑opposition hat they are " permanent worker". Having regard to the facts and circumstances of the case, we see no reason to doubt the statements made on behalf of the respondents that they were " permanent workers" under the petitioners. We are supported in our view by the fact that the petitioners never challenged before the Labour Court that any one of the two respondents was a "permanent worker" The petitioner' only defence before the Court was that both the respondents had voluntarily deserted their employment and were, therefore, not entitled to any of the reliefs prayed for. Petitioners not having termi nated the services of the respondents in the manner provided elsewhere in the Act, the Labour Court has rightly dealt with the cases of the two respondents under section 19 of the Standing Orders Act which runs as follows "

19. Termination of Employment.‑(I) For terminating the employment of a permanent worker by the employer, otherwise than in the manner provided elsewhere in this Act, ninety days' notice in the case of monthly‑rated workers and forty‑five days' notice in the case of other workers, in writing, shall be given by the employer: Provided that wages for ninety days or forty‑five days, 41s the case may be, may be paid in lieu of such notice: Provided further that the worker whose employment is so terminated, shall be paid by the employer compensation at the rate of fourteen days' wages for every completes year of service or for any part thereof in excess of six months, in addition to any other benefit to which he may be entitled under this Act or any other law for the time being in force. Explanation.‑For the purpose of calculation of wages under this subsection, wages shall mean the average of the basic wages and dearness allowance, if any, raid to the worker during the period of twelve months immediately preced ing the date of termination. (2) If a permanent worker desires to terminate his employ ment, one month's notice in the case of monthly‑rated workers, and fourteen days' notice in the case of other workers in writing, shall be given by him to his employer: Provided that a worker who terminates his employment under this subsection shall not be entitled to the payment of any compensation mentioned in subsection (1) but he shall be entitled to other benefits, if any, under this Act or under any other law for the time being in force. (3) For terminating the employment of temporary worker by the employer, otherwise than in the manner provided elsewhere in this Act, and if it is nit due to the completion, cessation, abolition or discontinuance of the temporary work which he was appointed to perform, one month's notice in the case of monthly‑rated workers and fourteen days' notice in other cases, in writing, shall be given by the employer: Provided that wages for one month or fourteen days, as the case may be, may be paid in lieu of such notice." It has been argued by Mr. Islam that in any event the respondents should not have been allowed any sum under the heads: (1) money in lieu of unavailed leave and (2) arrears of wages, inasmuch as a worker is not entitled to claim these reliefs under the Standing Orders Act. We are unable to accept this contention. Under section 5 of the Stan ling Orders Act, workers employed in shops are entitled to leave and holidays with wages as provided in the East Bengal Shops and Establishments Act, 19: 1 the Factories Act, 1951 or any other law for the time being in force as the case may be and other holidays which the Provincial Govern ment may specially declare to be holidays for workers by notification in the official Gazette. We, therefore, do not think that the sum allowed to the respondents for unavailed leave is outside the purview of the Standing Orders Act. So far as the powers of the . Labour Court is concerned, section 25(d) provides as follows " 25. (1) . . . . . . . . . (a) . . . . . . . . . . (b) . . . . . . . . . . (c) . . . . . . . . . . (d) in deciding the matter the Court may pass such order including orders regarding cost, as it may deem just and proper and it may, in appropriate cases, require, by such order, the re‑instatement of the complainant thereof and such order shall be final (e) . . . . . . . . . ." It is, therefore, evident that the Court has been given wide discretion in the matter of passing orders on a complaint made to it under section 25 of the Standing Orders Act. In our opinion the Court is competent to give relief under the said two heads. Mr. Islam has further contended that section 22 of the Payment of Wages Act, 1936 operates as a bar to the entertainment by a Labour Court of any claim for payment of wages. This contention is untenable, for section 22 of they Payment of Wages Act puts no such bar so far as a Labour Court constituted under the provisions of the East Pakistan Labour Disputes Act, 1965 is concerned. Section 22 is ass follows: "

22. Bar of Suits.‑No Court shall entertain any suit for the recovery of wages or of any deduction from wages in so far as the sum so claimed (a) forms the subject of an application under section 15 which has been presented by the plaintiff and which is pending before the authority appointed under that section or of an appeal under section 17 ; or (b) has formed the subject of a direction under section 15 in favour of the plaintiff ; or (c) has been adjudged, in any proceeding under section 15, not to be owed to the plaintiff ; or (d) could have been recovered by an application under section 15." Evidently the section bars a Court to entertain any suit for the recovery of wages and the "Court" referred to appears to us to be a "Civil Court" and not a Court of the special description as the Labour Court. The proceeding before the l Labour Court under section 25 of the Standing Orders Act is not a suit. In our opinion, therefore, section 22 of the Payment of Wages Act has no application to the present case. It has also been argued before us that, inasmuch as the Labour Court has expressed the opinion that it was "highly probable that the Management terminated their services as they were thinking of closing down the business in the near future though they have not done so up till now ", the Labour Court, consistent with this observation, should have dealt with the cases of the respondents under section 12 of the Standing Orders Act instead of section 19 of the Act. Section 12 is as follows: "

12. Conditions of retrenchment.‑No worker employed in any shop or commercial or industrial establishment, who has been in continuous service for nit less than one year under an employer shall be retrenched by the employer unless‑ (a) the worker has been given one month's notice in writing, indicating the reasons for retrenchment or the worker has been paid in lieu of such notice, wages for the perio3 of notice ; (b) a copy of the notice in respect of the retrenchment is sent to the Chief Inspector or any other officer authorised by him ;and (c) the worker has been paid, at the time of retrenchment, compensation which shall be equivalent to fourteen days' wages for every completed year of service or for any part thereof in excess of six months, or gratuity, if any, whichever is higher Provided that in case of retrenchment of a worker under subsection (3) of section 9, no notice as mentioned in clause (a) will be necessary but the worker shall be paid fifteen days' wages in addition to the compensation or gratuity, as the case may be, which may be payable to him under clause (c). Explanation.‑For the purpose of calculation of compensation under this section, wages shall mean the average of the basic wages plus dearness allowance, if any, paid to the worker during the period of twelve months immediately preceding the date of retrenchment." Reading the two sections together, namely, sections 12 and 19, it seems clear to us that the provisions of the latter section apply to a worker unless his services have been terminated in any other manner prescribed in the said Act. 1t is not, and it could not be, the case of the petitioners that they terminated the services of the respondents in the manner mentioned in section 12 ; nor was any such termination ever alleged by the petitioners before the Labour Court where the petitioners' case was that the respondents had voluntarily deserted their employment. The case of desertion has been negatived by the Court and we see no reason to interfere with the impugned order of the Labour Court in any manner whatsoever. For the reasons stated above, we do not find any sub stance in this rule and it is accordingly discharged without any order as to costs. A. M. SAYEM, J.‑I agree. A. E./S. A. H. Petition dismissed. Rule discharged.