P L D 1967 Dacca 724 (PLP)

SALAFIUDDIN AHMED, J.‑These two petitions are heard together as common question of facts and law are involved and they are now being disposed of by this judgment. Respondent No. 2 in Petition No. 588 of 1966 was a store keeper in the godown of the petitioner at Narayanganj and his services having been terminated by the petitioner, the respondent No. 2 felt aggrieved in respect of compensation and other benefits allowed to him and he, therefore, lodged a complaint with the Labour Court under section 25 of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 (hereinafter called the Act of 1965). The Labour Court on a consideration of the evidence before it decided the dispute in favour of respondent No. 2 and allowed him certain benefits. The petitioner having been aggrieved by this decision of the Labour Court approached this Court and obtained this rule on the 7‑11‑66 calling upon the respondents, namely, the Chairman, 2nd Labour Court, Govern ment of East Pakistan and respondent No. 2 (petitioner employee) and respondent No. 3 the Province of East Pakistan to show cause why the order passed by the Labour Court in Labour Dispute Case No. 44 should not be declared to be without lawful authority and of no legal effect. Similarly in Petition No. 598 of 1966, the services of respon dent No. 2 Dedar Hossain a Watchman at the godown of petitioner in Narayanganj, were terminated and he was given certain benefits which raised a dispute between him and the petitioner with the result that respondent No. 2 filed a complaint before the Labour Court under section 25 of 1965 Act and the Labour Court on a consideration of the evidence decided in favour of the respondent and gave him certain benefits. The petitioner having been aggrieved by this decision approached this Court and obtained another rule on the 14‑11‑66 in terms similar to those in the Rule in Petition No. 588 of 1966. The petitioner in the two cases has claimed that the termina tion of the services of the respondents concerned were made as a result of "retrenchment" under section 12 of 1965 Act and that all the benefits which the respondents were entitled to under the law were given to them on receipt of which each of them signed an acquittance receipt in favour of the petitioner. It appears that respondent No. 2 in Petition No. 598 was first appointed in 1951 while respondent No. 2 in Petition No. 2 in Petition No. 588 was first appointed in 1954. The main dispute between the parties is confined to the question whether the termination of the services of the two employees of the petitioner had been made under section 12 or it was made under section 19 of the 1965 Act. On behalf of the petitioner it has been contended that inasmuch as the notice terminating the services of the employees showed that the requisite notice and/or payment in lieu of notice have been given in terms of section 12 of the said Act and that the benefits which the employees were entitled to under that section were given to them and they were told that the godown where they were employed was being closed down, the termina tion in fact was made under section 12 of the Act. On the contrary it has been argued on behalf of the respondents concerned that inasmuch as termination of the services of the respondents was not done in the manner provided in section 12 of the Act, the termination must be regarded as one under section 19 of the Act. The relevant provisions of sections 12, 13 and 19(1) are follows :‑ 12. "Conditions of retrenchment.‑No worker employed in any shop or commercial or industrial establishment, who has been in continuous service for not 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 period 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, 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 retrencament. 13. "Procedure for retrenchment.‑Where any worker is to be retrenched and he belongs to a particular category of workers, the employer shall in the absence of any agreement between him and the worker in this behalf, ordinarily retrench the worker who was the last person to be employed in that category, unless for reasons to be recorded, in writing, the employer retrenches any other worker. 19. "Termination of employment.‑(1) 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, as 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 completed 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, paid to the worker during the period of twelve months immediately preced ing the date of termination." It is evident from the terms of section 19 that unless the services of a permanent worker has been terminated in the manner provided elsewhere in the Act, the termination has to be made in accordance with the provisions of this section. The essentials of a termination on the ground of retrenchment as prescribed under section 12 are: (a) the worker must be given one month's notice in writing indicating the reasons for retrenchment or he has been paid in lieu of such notice wages for the period of notice; (b) a copy of the notice in respect of retrenchment is sent to the Chief Inspector; (c) and the worker has been paid at the time of retrenchment compensation or gratuity whichever is higher as required under clause (c) of section

12. On the admitted facts of the present case, it appears that the first and third con ditions have been fulfilled. The second condition was never complied with in the case of respondent No. 2 in Petition No. 598 of 1966. In the case of respondent No. 2 in Petition No. 588 of 1966, however, this condition appears to have began complied with only when the employee had complained to the petitioner that the former had not been given the benefits which he was entitled to under section 19 of the Act. It appears that in the case of this respondent (in Petition No. 588 of 1966) the services of the respondent were terminated by a notice dated 9‑3‑66. terminating the service with effect from the 14‑4‑

66. On the 15‑3‑66, however, the respondent was paid one month's wages in lieu of the notice and certain other compensation and his services in fact were terminated on that date. On the 17‑3‑66 the respondent complained to the petitioner that he bad not been given benefits under section 19 of the Act to which he was entitled and it was only on the 18‑3‑66 that the petitioner for the first time sent the requisite notice to the Director, Labour Directorate, who under the 1965 Act is the Chief Inspector. Respondent No. 2 in Petition No. 598 of 1966 also made a similar representation to the petitioner after the former had been paid and his services terminated in the same manner as those of respondent No. 2 in Petition No. 588 of 1966. It has been contended on behalf of the respondents that the procedure mentioned in section 13 of the Act was also not followed although there was scope for compliance with the procedure mentioned in section

13. Upon the facts appearing in the affidavits before us, as well as those appearing in the order passed by the Labour Court, it is evident that the services of the employees have not been terminated in the manner provided in section 12 of the Act. The termination of the services .on the ground of retrenchments in terms of section 12 can only take place when all the conditions mentioned thereunder have been complied with and not before! In the present case it is obvious that one of the conditions, namely, dispatching the notice in respect of the retrenchment to the Chief Inspector was never complied with in case of respondent No. 2 in Petition No. 598 of 1966 while in the case of respondent No. 2 in Petition No. 588 the notice was sent only after the services of the respondent had been terminated and he had claimed that his termination was under section 19 of the Act. The Labour Court, was, therefore, justified and acted quite within its jurisdiction in holding that the termination of the services of the respondents concerned was under section 19 of the Act and not under section 12 as claimed by the petitioner. It' has been stated before us on behalf of the petitioner that sofar as the Store Keeper respondent No. 2 in Petition No. 588 of 1966 was concerned, there were only two such posts under the petitioner namely, one at Narayanganj and Khulna (sic) had been closed down simultaneously there was no scope for com plying with the provisions of section 13 of the Act. In this connection it has been stated further that although there is a depot at Chittagong which is bigger than the two godowns at Narayanganj and Khulna that had been closed down, the Depot Operator who is in charge of the Chittagong Depot is higher in rank and senior to respondent No. 2 Store Keeper. We, however, notice that these facts were not placed before the Labour Court. On behalf of the petitioner it has been further contended that in any event the Labour Court was not legally justified in ordering the payment of gratuity under the rules of the petitioner company as the said rules were not made under any law. It, however, appears from the records of the case certified to this Court that the petitioner had conceded that the said Rules were applicable to the respondents concerned. This point was, there fore, never raised before the Labour Court before whom both the parties appeared to have proceeded on the footing that if section 19 applied, the respondents concerned were entitled to the gratuity under the rules of the company. For the reasons stated above, we do not think that the impugned order passed by the Labour Court suffers from any illegality. We accordingly discharge the rule in each one of the two Petitions Nos. 588 and 598 without any order as to costs. ABDUL HAKIM KHAN, J.‑I agree. S. Q. Rules discharged.