1. MD. NURUL ISLAM KHAN (CHAIRMAN).-These two cases arise out of applications made under section 25(1)(h) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965 which will be hereinafter referred to as the Act.
2. These two cases are against the same second party that is, the Management of National Sugar Mills Ltd. The first parties were the employees of the second part. Both of them resigned from their posts and prayed for gratuity in terms of their service conditions. The resignations were accepted, but they were riot given any gratuity as the second party refused to recognize any such term in case of their resignation from service. In view of this common fact of the case, these two cases would be decided together.
3. The case of the first party Md. Ashraf in Complaint Case No. 396 of 1968 is that he was appointed as Cashier under the second party since 22-12-1953 and as per terms and conditions he was to get gratuity at the rate of one month's pay for every completed year of service and a lump sum amount of Rs. 1,000.00 for the removal of his family from the mill premises in case he resigned or the firm terminates his services. The first party continued as Chief Cashier for some time and then he- was promoted as Accountant Incharge. But unfor--tunately in May 1968 he was reverted to the, post of Cashier at a salary of Rs. 400.00. He at once submitted his resignation on the strength of his service conditions and demanded gratuity arid other benefits. His resignation was not accepted and he was told to continue, on an assurance that his former post would be restored to him. But in reality nothing happened to help him, but there was day-to-day harassment. To avoid the risk of dismissal he approached the second party to terminate his services. But he was told to resign which he did. So he submitted his resignation letter which was accepted with effect from 31-10- 1968. Messrs Wahiduzzaman, Shahidullah and Md. Ibrahim who were given the same service conditions, on their resignation got full benefits as per service conditions and terms. Further these service terms and conditions are protected under section 22 of the Act. When he was refused his legitimate benefits as protected under section 22 and as guaranteed under the service conditions, he felt aggrieved and submitted his grievance petition upon the second party on 28-10-1968 and again on 2-11-1968. But without, all rationing any good reason the second party refused to give him any benefit. Hence he approached the Court with the prayer for the said benefits.
4. The case of Md. Hanif, first party in Complaint Case No. 397 of 1968 is almost similar. He said that he, was employed as a technical hand since 1954. He was then promoted on 1-1-1959. as Assistant Foreman, and he was given certain service conditions which provided similar terms except that he would be paid a lump sum amount of Rs. 500.00 for removal of his family instead of Rs. 1,000.00 as in the case of Md., Ashraf His pay then was Rs. 250.00 per month. When his increment fell due on 1- 1-1968 the same was withheld without any reason and so he submitted his resignation on the strength of his service terms and condition? But the same was not accepted. The next portion of the story of Md. Hanif is exactly similar as that of Md. Ashraf. He then resigned. But he was not given any benefit. His resignation became effective from 31-10-1968. The other people got benefit as stated by Md. Ashraf. He submitted his grievance petition on 28-10-1968 and again on 2-11-1968.
5. But he was given a perfunctory reply in derogation of his service terms and conditions. Hence this application for benefits are provided under the service terms and conditions and under section 22 of the Act.
6. The second party submitted written statement in both the cases and their grounds are also similar.
7. Apart from raising the plea that the cases are not maintainable as the present cases are covered by resignation, the second party submitted that the present owners purchased the firm Kishoreganj Sugar Mills, Ltd., in December 1965, and they purchased it free from all liabilities and encumbrances from the previous owners who employed the first parties. If there were any terms and conditions, they expired as soon as those owners transferred their interests in the second party firm. The confidential papers such as the appointment letters of the first parties were collusive, fraudulent and ante--dated documents created later with the help of the then Managing Partner of the Kishoreganj Sugar Mills Ltd. Mr. Md. Osman. These letters are unnumbered and their copies were not transferred at the time of transfer of the assets and liabilities of the Kishoreganj Sugar Mills Ltd. to the present Management. As such, they are not bound by any terms and conditions, if any, given by the previous owners. The Mill has been re-named as National Sunar Mills Ltd. under the present Management. It has been closed since 1970 and the staff have been retrenched.
8. Gratuity, if any, paid to Md. Shahidullah and W. Z. Ansari who are witnesses in the present case on behalf of the first parties were given on compassionate ground by the Management and this cannot form any basis for payment to the present first parties. Nothing has been recorded in their service books and the so-called appointment letters were also not numbered. Se these applications should be rejected straight way.
9. Points for determination :
(1) If the applications are maintainable?
(2) Are the applicants entitled to any benefit under the Act?
10. FINDINGS AND DECISION Point No. 1.-In the present case it has been argued by the second party that as the resignation is not covered by -ati5 provision of the Act, there cannot be any grievance under section 25 of the Act from the first parties and hence the applications would not be maintainable. On a perusal of the said appointment letters of the first parties it appears that in both these cases the service terms and conditions offered to the two first parties equated termination of services with resignation by the first parties. In this view, in the peculiarity of the service terms and conditions as the case of resignation has been equated with termination of their services by the employers, they should be recognised as within the provision of the Act and hence it must be said that the applications are maintainable.
11. Five witnesses have been examined on behalf of the parties including the two first parties. They have clearly made a case that in their service terms and conditions which were a sort of confidential letters sent to them, they were told that they would be given gratuity at the rate of one month's pay for every completed year of service and a lump sum amount of Rs. 1,000.00 in case of Md. Ashraf and Rs. 500.00 in case of Md. Hanif for removal of their families from the mill premises in case they resigned or their services are terminated. The service terms of Md. Ashraf is Exh. 1 and that of Md. Hanif is Exh.
7. The evidence as given in Case No. 395 of 1968 has been adopted for the other case too. Md. Osman who was admittedly the Managing Partner of the Kishoreganj Sugar Mills, Ltd., before the mill was purchased by Adamjee, was examined as P. W. 2 and he categorically stated that Exh. 1 was issued to Md. Ashraf and that they selected some members of the Executive staff and issued such letters confidentially to them. Md. Osman clearly stated that these letters Exh.
12. 1, etc., were not for general circulation and hence they were not serialised. The first parties through their P. W.4 Md. Shahidullah has later shown that Exh. 5 series (A letters) issued to Md. Shahidullah were though in the nature confidential letters, were not given serial numbers. The first parties have, therefore, been able to show that even confidential letters were not serialised by the Mill administration even after the mill was taken over by the present second party after 1965. The only witness of the second party Md. Haji Kashim who was the Resident Director claimed that they did not receive these confidential letters at the tinge of their acquisi--tion of the Kishoreganj Sugar Mills which was re-named as National Sugar Mills, Ltd. But he admitted in cross-examination that he was neither present at the time of taking over nor at the time Md. Shahidullah was given the benefits. He also could not substantiate that they made ex gratia payment to Shahidullah out of kindness. In Exh. 5 series produced and proved by Shahidullah, he proved that he was not in fact, in good book of the second party w hen be was made to resign. As this was service terms and conditions, there was a negotia--tion between the Shahidullah and the second party on the basis of the service terms and conditions and benefits were paid on that basis. It cannot be imagined that the second party out of kindness granted such a huge amount as ex gratia payment to Md.
13. Shahidullah or for that matter to Mr. W. Z. Ansari who got Rs. 9,010.00 as it is found from Exh.
3. In his case also the suggestion was that he got the amount from the second party out of kindness. No body would believe that the second party out of kindness gave more than Rs. 9,000.00 to P. W. 3.
14. We have no reason to disbelieve P. W. Md. Osman who is a very respectable and responsible witness and who has no basis against the second party P. W. 2 clearly stated that service book was not maintained properly and it was kept only for fear of Labour Directorate. One of the service books which was produced clearly shows that it was not maintained properly and this corroborates him. In the present case it also appears that though D. W. 1 Haji Md. Kashem was not the competent witness, he was examined and the relevant and competent witness the Manager of the factory has not been produced. Witness Md. Hanif clearly stated that there was no system of provident fund. Hence there was the system of gratuity. It appears that under section 22 of the Act a more favourable term offered to the employees has been protected.
15. Point No. 2.-In view of my above findings and in view of the evidence on record it clearly appears that the first parties are entitled to gratuity as claimed by them. It further appears that the first party Md. Ashraf was not given his increment of Rs. 20.00 with effect from 1-1-1968 though his services were terminated later on 31-10-1968. He is, therefore, entitled to this increment for 10 months. The benefit however, should accrue to both the first parties with effect from 1-1-1959. He is also entitled to Rs. 1,000.00 as per service terms and condi--tions, Exh.
1. He stated that he did not get his salary for the month of October 1968. His last pay was Rs. 400.00 per month, and so he should get this amount.
16. As for Md. Hanif, he said that he was deprived of a due increment with effect from 1-1-1968 though he resigned on 31-10-1968 and thus he was entitled to increment for 10 months at the rate of Rs.
17. 10.00 per month amounting to Rs. 100.00. He also claimed that he was not paid for the month of 'October 1968. So he is entitled to Rs. 250.00. He is also entitled to gratuity-for 9 years only at the rate of Rs. 260.00 for each year.
18. In the result, these two applications succeed. It is ordered that the cases be decided on contest in presence of the Members and the second party be directed to give the following benefits to the two first parties: Md. Ashraf Rs.
(1) Gratuity for 9 years at the rate of3,749.94 Rs. 416.66 paisa for each year.
(2) Increment for 10 months at the200.00 rate of Rs. 20.00 per month.
(3) Lump sum grant as per service term1,000.00
(4) Salary for the month of October 1968400.00 5,349.94 Md. Hanif Rs.
(1) Gratuity for 9 years at the rate of4,324.97 Rs. 258.33 for each year.
(2) Increment for 10 months at the rate100.00 of Rs. 1,0.00 per month.
(3) Lump sum grant for removal of 500.00 family from mill premises.
(4) Salary for October 1968250.00 3,174.97 The second party is directed to deposit the above amounts -in Court to the credit of the first parties within thirty days from today.
19. Written opinion of the members have been consulted in arriving at the above decision.