Decided on July 08,1997

Karim Jute Mills Ltd. Appellant
Chairman, Labour Court Respondents


MUSTAFA KAMAL,J. - (1.) This appeal by leave by the writ petitioner M/S. Karim Jute Mills Ltd. is from the judgment and order dated 11-3.93 passed by a Division Bench of the High Court Division discharging the Rule Nisi in Writ Petition No. 688 of 1987.
(2.) Respondent No. 2, worker under the appellant, took leave upto 23-9-80 on 19-9-80. He fell ill and applied for leave from time to time. When he applied for leave for two months from 25-9-80 the appellant sent a reply on 30-9-80 stating that no further leave would be granted and asking him to appear before the Medical officer of the Mills by 6-10-80. But respondent No.2 asked the appellant to send a Medical Officer to his residence for his examination. The appellant by letter dated 9-10-80 again asked respondent No.2 to appear before the Medical Officer of the Mills by 14-10-80. Respondent No.2 did not respond. The appellant once again asked him to appear before the Medical Officer of the Mills or to join his duty by letter dated 26-10-80. Respondent No.2 did not do so. By another application dated 25-11-80 he applied for medical leave for one month from 26-11-80. By another application dated 25-12-80 he applied for one month's medical leave from 26-12-80. His last application for leave is dated 25-2-81 with which he appended a medical certificate. It became clear to the appellant that respondent No.2 was unable to resume his duty since 26-9-80 because of his continued ill-health. Consequently the appellant discharged him from service by a letter dated 6-3-81 under section 16 of the Employment of Labour (standing Orders) Act, 1965, shortly the Act, on the ground of his continued ill-health with all monetary benefits under the Act. Respondent No.2 filed Complaint Case No.40 of 1981 before the Second Labour Court, Dhaka challenging the order of discharge on several grounds and the said Labour Court allowed the case and ordered his re-instatement in service. The appellant's Writ Petition No.216 of 1985 challenging the order of the Labour Court was disposed of by the High Court Division by sending the case back to the Labour Court for re hearing on certain matters. The Labour Court after re-hearing reiterated the previous decision by judgment and order dated 22-10-87. Being aggrieved the appellant obtained a Rule Nisi in Writ Petition No.688 of 1987. As already observed the High Court Division discharged the Rule.
(3.) While repeatedly applying for medical leave, respondent No. 2 enclosed medical certificates in support of his plea of illness. These certificates described the respondent's illness as 'chronic peptic ulcer' with skin troubles with anaemia and cardiac weakness. The High Court Division did not refer to the medical certificates, but noticed section 16 of the Act which is as follows. "16. Discharge from service.- A worker may be discharged from service for reasons of physical or mental incapacity or continued ill-health or such other reasons not amounting to misconduct: Provided that a worker having completed not less than one year of continuous service so discharged, shall be paid by the employer compensation at the rate of thirty 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. Explanation.- For the purpose of calculation of wages under this section 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 preceding the date of discharge.";

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