1. MD. NURUL ISLAM KHAN (CHAIRMAN). The first party is present and the second party is found absent on repeated calls. The time is 11-00 a.m.
2. Member Mr. M. H. Meerza is present. The other Member is absent.
3. The case is taken-up for hearing. P. W: 1, Kazi Fazlul Haq is examined. There is none to cross- examine him.
4. Heard argument of the first party.
5. This is an application under section 25(1)(b~) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 hereinafter referred to as the "Act".
6. The e case of the first parties that he was appointed as Fourth Engineer of the Parsons Corporation, the second, party on 1-8-1968 at monthly wages of Rs. 540.00. His duty was to supervise the works of the Contractors employed under the second party. He had no administrative or managerial functions to do in the Corporation. The second party is a Commercial Establishment and the employer of the first party and the first party having no supervisory, managerial or administrative function to do, he is a "worker" under the Act. He was illegally charge-sheeted on 6-11-69, given no time to explain as required under the Act. He was suspended also with effect from 6-11-69, but not given any wages as prescribed in the law. No enquiry was held as laid down in the Act. He was then dismissed with effect from 12-I1-69. He submitted the grievance petition on 17-11-69, but the second party refused to re-instate him and did not give any hearing also, as required under the Act. Hence, this application for re-instatement or for termination benefits, as the case may be.
7. The second party entered into appearance and filed written statement, wherein it has been stated inter alia that the applicant is neither a "worker", nor the second party is a "Commercial Establishment" under the Act. The termination was legal and valid and no relief can be granted to the first party under section 25 of the Act.
8. The second party further claimed that they have got their own service rules and that he has been appointed under their rules and he is subject to under that service rules.
9. It was further stated that he has been found guilty and his services have been terminated and that the first party did not seek personal hearing.
10. 'The second party has not come forward at the time of hearing of the case. It appears that the first party was appointed as worker under the second party and became permanent worker according to the provisions of the Act. For termination, 90 days' notice should have been given. But in the present case disciplinary actions were taken against him. He was first charge---sheeted on 6-11- 69 and he was told to submit his explanation within 3 days. He was also suspended with effect from 6-11-69, but not given the half average wages according to the pro--visions of the Act. It appears that the second party has claimed that the first party is not a worker and the second party is not an employer under this Act. But it appears that the first party is a worker since he had no managerial or administrative functions or supervisory work of the employees of the second party.
11. Hi only duty was to supervise the work of the contractors of the second party, who are working for the second party. It is quite clear that the second party is a commercial establishment. So, it appears that the provisions of this Act is applied to the first party and the second party.
12. It also appears that the second party had its own service rules and the second party had taken action against the first party under that rules.
13. But it appears in proviso to subsection (1) of section 3 of the Act that- ---Provided that any shop or commercial or industrial establishment may have its own rules regulating employment of workers or any class thereof, but no such rules shall be less favourable - to any worker than the provisions of this Act --- So, from the above proviso it appears that the service rules of the second party could not be less favourable to the first party than the provisions: of the Act. ' It must be satisfactory pro--visions to the first party. All such service rules should be sub--servient to the law of the land. In that sense, the service rules, if any, of the second party must conform to the provisions of the Act and if not, they will be bound to be inconsistent to the Act and they cannot apply to .the first--party irrespective of the provisions of the Act.
14. It appears that the first party was not given at least 3 days' time for showing cause and that he was not' given half average wages as subsistence allowance and that there was no formal enquiry. This means that the second party did not comply with the provisions of section 18 of the Act. Thereafter, when the grievance petition was filed by the first party within time, the second party again did not call him for hearing and did no enquire into the matter as per provisions of section 25, sub-- section 1(a) of the- Act, which is mandatory upon the second party. -Thus it appears that the second party has not complied with the mandatory provisions of the Act. They have terminated the services of the first party illegally.
15. But we do not like to impose the first party upon the second party- as the second party is a foreign employer and all through the proceedings it appears that the second party has not been able to prove its bona fide in the matter.
16. In view of all the above facts and for ends of justice, the first party should be given relief in the form of termination" benefits as per provisions of section 19 of the Act.
17. The learned Member Mr. M. H. Meerza agreed with . me on this finding. Hence, it is, ORDERED.
18. That the case be allowed ex. parte with cost of Rs: 10.01) as lawyer's fee. The first party would get, termination benefits as follows:
(1) 90 days' notice pay at the rate of Rs. 540.00 per month amounting to Rs.1,620.00; (2) 14 days--- compensation;(3) Leave salary as per rule;(4) Unpaid salary with effect from 26th October 1969 to 12th November 1969. ; The second party is directed to deposit the amount lit this Court within 30 days from today.
19. Send a copy of the judgment to the second party at once by registered post and to all concerned as' per provisions of law.