1. MD. NURUL ISLAM KHAN (CHAIRMAN).-This is an applica--tion under, section 25 (1) (b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, which will be hereinafter called as the Act.
2. The case of the first party is that he was a permanent worker under the second party appointed as a Salesman on a monthly salary of Rs. 200.00 plus D. A., T. A. and Commission at the rate of Rs. 5'00 per thousand on the sale. He was appointed on 1-11-1964 and be continued in that post till his dismissal on 1-9-1969 by a letter dated 23-8-1969 which was done in violation of the legal provisions of the Act. The ground of dismissal was absence and negligent conduct. There was no enquiry into the charge and the first party was not given any opportunity to defend himself. He was also not paid his legal dues.
3. His further submission is that the first party was appointed by second party No. 1 who is the agent of second party No. 2 He was working under the direct supervision and control of both the second parties. The second party No. 2 called the first party from his place of duty at Sylhet to their head office at Tejgaon, Dacca, on 18-6-1969. He came to Dacca and met the second party No. 2 on 22-6- 1969. He was informed that he was being promoted as Sales Representative and was going to be posted to Chittagong. He was instructed to join his duty at Chittagong as soon as possible.
4. Accordingly, the first party went to Chittagong and reported for duty on 2-7-1969 at the second party's agency office Messrs Wasi Mia & Brothers. But as there was no written instruction he was not allowed to join his duty till 7-7-1969 when the second party directed the said distributor Messrs Haji Wasi Mia & Brothers over phone to allow the first party to join his duties. On 25-7-1969 the second party No. 2 with some mala fide and dishonest motive issued a fresh appointment letter to the first party although he was already in the employment of the second parties. In the meantime the second party No. 1 in collusion with second party No. 2 sent a to he a letter of letter to the first party dated 1-7-1969 purporting acceptance of resignation alleging that the resignation letter of the first party had been accepted when as a matter of fact, the first party never submitted any such letter of resignation. With some mala fide intention the second party No. 2 issued a so-called is charge- sheet upon on first party on 7-8-1969. The first party submitted an explanation on 7-8-1969 denying the allegation. Thereafter without holding any enquiry and without giving any opportunity to the first party the second party No. 2 dismissed the first party from his service illegally and arbitrarily without payment of his legal dues. Being highly aggrieved, the first party served a grievance petition on the second party on 22-9-1969 by registered post with A/D. The second party No. 1 gave a reply by their letter dated 7-10-1969 which was found unsatis--factory. The second party No. 2 did not reply to the grievance petition. Hence the present complaint. The prayer of the first party is for directing the second parties to re-instate the first party to his former post with all back wages and other legal dues.
5. The second party No. 1 filed a written statement in which it was stated that the allegations of the first party were baseless and false. The second party No. 1 denied that the first party was dismissed by any letter dated 23-8-1969. It is submitted that the first party was the employee of second party No. 1 alone and the second party No. 2 had no connection whatsoever with the service of the first party. Second party No. 1 is an agent of second party No. 2 and distributor throughout 'East Pakistan except the district of Chittagong. The second party No. 2 gives instruction about policy matter to the second party No. 1 which the second party No. 1 follows being its agent. The second party No. 1 denied any knowledge of the allegation such as the calling of the first party by second party No. 2 from Sylhet to Dacca and giving him instruction to join at Chittagong and that he was not allowed to join there by the distributor till he received instruction over phone or that the second party No. 2 issued a fresh appointment letter to the first party. The second party No. 2 could not legally give any employment to the first party so long he was employed under the second party No. 1, and the first party also could not legally join the services of the second party No. 2 so long he was an employee under the second party No. 1. It was then submitted that the first party voluntarily resigned. After his resignation the first party demanded his at rear dues through Habib Bank, Khatungonj, Chittagong. Second party No. 1 had no connection with Chitta--gong business because he was the agent of second party No. 2 throughout East Pakistan except Chittagong. It was further pleaded that the second party No. 1 is an unnecessary party in the suit as the first party voluntarily resigned. It transpired that the first party being a man from Chittagong in collusion with the second party No. 2 suddenly left the second party No. I and accept, job under second party No. 2 at Chittagong. There they fell out.
6. The second party No. 2 also filed a written statement in which they also denied the allegations. It was further submitted petition was not submitted within 15 days of the cause of grievance. All other allegations of collusion, holding no enquiry, etc. were denied. It was submitted by the second patty No. 2, that the first party approached the second party No.2 for a job and he was interviewed on, 22-6-1969. He filled in a corms, pang s biodata form wherein he mentioned Waqar &. Sans as his previous employer. He was appointed by second parry No. 2 as Salesman with effect from 1-7-1969 and the appointment letter dated 15-7-1969 was sent to him by registered post. He was issued a show-cause notice on 7-8-1969 for having remained on unauthorised absence and also for misappropriating sale proceeds. He admitted his guilt in reply to the show-cause notice and though he did not pray for personal hearing he was given a personal hearing on the basis of his acceptance of the charges: Letter of dismissal dated 23-8-1969 was issued to him and he was dismissed with effect from 1-9-1969. He was told to collect his legal dues. But he did not collect the same. He did not file his grievance petition within fifteen days of the cause of grievance. Hence the petition is liable to be dismissed with costs.
7. Points for determination in the present case are:
(1) Whether the first party was an employee of second party No. 1 or second party No. 2?
(2) Whether the impugned order of dismissal passed against the first party by second party is legal and valid?
(3) What relief, if any, is the first party entitled to?
8. FINDINGS AND DECISION All the three points are taken up together for decision for the sake of convenience.
9. This case provides a peculiar illustration of anomaly in the private service in this province. The first party has claimed that he was appointed by the second party No. 1 that is, Haji Waqar Ahmed of Messrs Waqar & Sons which was a distributing Company of Messrs Kohinoor Chemical Co. Ltd.
10. Though the first party was appointed by the second party No. 1, his commissions, purpose; guidelines, etc., were, given by the second party No. 2 and in case of giving any commission by the second party No. 1, the second party No. 2 used to be informed. It further appears from the order of transfer issued upon the first party by the second patty No. 1 that he was transferred to Sunamgonj to with another company, namely, Messrs Abul Hashim, West Market, Sunamgonj, Sylhet. Copy of this order was given to Messrs K. C. C. Ltd. Dacca. and to other companies. In another letter dated 1- 7-1969 second party No. 1 advised the first party to report to second party No. 2 regarding deduction from his T. A, Bill. From another letter dated 15-9-1967 it appears that one day's salary of first party was deducted for his violation of guide point No. 5, by the second party No. 2. This letter clearly shows that the second party No. 2 was the controlling authority in respect of the first party.
11. They could pass punishment order, issue warning and make deduction from his pay bills 'according to this letter. There are two letters dated 24-8-1967 and 27-11-1968 which show that services of the first party were vitally connected with second party No. 2. This being the position, the second party No. 2 stated that the first party filled in biodata form and was interviewed for appointment under the second party No. 2 on 22-6-1969. It appears from the biodata form that this was a form prepared by Waqar & Sons which is the second party No. 1. So it cannot be said by the second party No. 2 that the first party filled in biodata form given by them. On the other hand, it appears that Sales Department of the second party No. I by a letter dated 15-7-69 sent a biodata form to the first party far filling it up. Now it is the case of the second party No. I that the first party resigned his post under them with effect from 1-7-1969 and took up employment under second party No. 2 from that date. It further appears from another letter of the second party No. 2 dated 19- 2-X968 that they also sent one pro forma and told the first party to fill it up. This data would convincingly show that the first party was also in effect under the control of the second party No. 2 from the very beginning and there was no question of fresh appointment under the second party No. 2 as he was already under the control of the second party No. 2. The services of the first party were being freely and indiscriminately transferred by the second party No. 1 to other people not to speak of second party No. 2 which was the principal and under whom the second party No. 1 worked. It appears that the second party No. 2 being completely under the control and under the favour of second party No. 2, allowed its employees to be controlled by second party No. 2 freely.
12. From the case given by the second party No. 2 It appears that after the so-called fresh employment under the second party No. 2, the first party fell from the state of grace imme--diately and was brought to book by way of proceeding against him. The proceeding papers were not produced by the second party No. 2 and the bona fides thereby could not be tested. We are not sure what biodata recorded at what time was submitted here along with the record. It appears from the connected papers that several biodatas were called for from the first party at different times by both the second parties. So the case of the second parties is not at all clear and they have not come with clean hands. So it appears that the first party was, in effect, working under both the second parties and in fact, second party No. 2 being the more powerful master was virtually con-- trolling him over the head of second party No. 1. Even according to the admission of second party No. 2 there was a so-called interview while the first party, according to him, was still serving under second party No. 1. This could not be possible when the second parties were both working together and the fact of first party's employment was known to the second party No. 2 from the very beginning. It also appears that the so-called appointment letter was given on 15-7-1969 whereas the second party No. 2 says that the first party got his employment under the second party No. 2 from 1-7-1969. The second party No. 1 has not produced the original resignation letter of the first party in support of the proof that he resigned willingly on 1-7-1969. It has also not been submitted that his resignation was accepted and that he was allowed to join at a different station that is, at Chittagong on that very day. For all these reasons it appears that the second parties' contentions have not been proved at all and it could not stand the test of strict proof and reason, thereof. On the other hand, the various papers produced by the first party in respect of his employment at different times show clearly that his services were clearly inter-twine with the second party No. 2 from the very beginning and the, that existence of the cervices itself depended on the satisfaction of the second party No. 2. For all these reasons I am bound to hold that the first party was still serving technically under the second party No. 1 though practically he was under the control of the second party No. 2 and, therefore, taking this advantage creating post-dated papers the second party No. 2 dismissed the first party illegally without framing any charge sheet, holding any enquiry, giving him a personal hearing, allowing, him to adduce his defence evidence and finally giving 'him any chance of hearing while he sent his grievance petition. Though the second party No. 2 dismissed him they did not reply to his grievance petition and the second party No. 1 denied its responsibility. This is really a very peculiar case. But the facts speak for themselves and the second parties cannot shirk their responsibilities. This being the position, I find that the services of the first party were terminated by the second parties illegally and arbitrarily and, therefore, he should lie given full termination benefits as per law.
13. It is, therefore, ordered that the case be allowed on contest and the second parties be directed to pay full termination benefits to the first party as per provisions of section 19(1) of the Act. The second party is further directed to calculate and deposit the amount of termination benefits in Court to the credit of the first party within thirty days from the date of passing this order. The services of the first party shall be counted with effort from 1-11-1964 till the date of termination that is, 1-9-1969.
14. Members have been consulted and they have submitted their respective written opinion.