Misconduct, Disciplinary Procedure & Dismissal under Labour Law of Bangladesh

A worker can be “Dismissed” on ground of “Misconduct”. Section 2(39) of Labour Act, 2006 (as amended in 2013) defines “Dismissal” as “the termination of services of a worker by the employer for misconduct”.

Section 23(4) of the said Labour Act, 2006 (as amended in 2013) provides some definitions of “Misconduct”, of which, the following may be applicable in the present case:

1. willful insubordination or disobedience, whether alone or in combination with others to any lawful or reasonable order of a superior
2. theft, embezzlement or fraud in connection with the employers business or property
3. absence without leave for more than ten days
4. riotous or disorderly behavior in the establishment, arson or any act subversive of discipline

In P. W. V. Rowe Vs. Labour Court, Chittagong (1979) 31 DLR (AD) 119 it was confirmed that absence without leave for more than ten days is a kind of misconduct and a worker may be dismissed or otherwise dealt with.

In case of a Dismissal, the following procedures need to be followed as per section 24 (1) of the Said Labour Act:

1. The allegations against him are to be recorded in writing
2. He is to be given a copy thereof and not less than seven day’s time to explain
3. He is to be given an opportunity of being heard thereafter
4. He has to be found guilty, after an enquiry conducted by an Investigation Committee comprised of equal number of representatives from the Employer and the Workers and the period of such enquiry shall not exceed sixty days.
5. The employer or the manager needs to approve such order of dismissal.

The said section 24 further states that:

i)A worker charged for misconduct may be suspended pending enquiry into the charges against him and unless the matter is pending before any Court, the period of such suspension shall not exceed sixty days.

Provided that during the period of such suspension, a worker shall be paid by his employer his subsistence allowance and other allowances, if any.

1. ii) An order of suspension shall be in writing and shall take effect immediately on delivery to the worker.

iii) In an enquiry the accused worker may be assisted by any person nominated by him who is employed in the establishment.

1. iv) If in an enquiry, any oral evidence is given on behalf of any party, the party against whom the evidence is given may cross examine the witness.

1. v) If, on enquiry, a worker is found guilty and is punished under section 23 (1), he shall not be entitled to his wages for any period of suspension but shall be entitled to the subsistence allowance for such period.

1. vi) If the charges against the worker is not proved in the enquiry, he shall be deemed to have been in duty for the period of suspension for enquiry, if any, and shall be entitled to his wages for such period of suspension and the subsistence allowance shall be adjusted accordingly.

vii) In cases of punishment, a copy of the order inflicting such punishment shall be supplied to the worker concerned.

viii) If a worker refuses to accept any notice, letter, charge-sheet, order or any other document addressed to him by the employer, it shall be deemed that such notice, letter, charge-sheet, order or the document has been delivered to him, if a copy of the same has been exhibited on the notice board and another copy has been sent to the address of the worker as available from the records of the employer, by registered post.

1. ix) In awarding punishment, the employer shall take into account the previous record of the worker concerned, the gravity of misconduct, achievements and accomplishments during his tenure, and any other that may exist.

According to section 23 (2) of the said Labour Act, any worker found guilty of misconduct may, instead of being dismissed under sub-section (1), in consideration of any extenuating circumstances, be awarded any of the following punishments, namely:

1. removal;
2. reduction to a lower post, grade or scale of pay for a period not exceeding one year;
3. stoppage of promotion for a period not exceeding one year;
4. withholding of increment for a period not exceeding one year;
5. fine;
6. suspension without wages and subsistence allowance for a period not exceeding seven days;
7. censure or warning.

According to section 23(3) a worker who is “removed” as a measure of punishment shall, if his continuous service is not less than one year, be paid by the employer compensation at the rate of fifteen days for every complete year of service. Provided that not compensation shall be paid if he is being removed for theft/embezzlement/fraud in connection with the employers business or property/ riotous or disorderly behavior in the establishment /arson or any act subversive of discipline.

In Mashriqi Jute Mills Ltd. Vs. the Chairman, Second Labour Court, Dhaka and another [11 MLR (HC)(2006) 96] a Labour Court ruled against such a dismissal order, which was overruled by the High Court Division stating that, 

“The respondent was dismissed from the service of the company for misconduct after due inquiry with the prior approval of the Managing Director who is the Chief Executive of the Company. The dismissal order was issued as a matter of routine procedure by the Assistant Labour Officer and as such the High Court Division found nothing wrong with the order and accordingly declares the Judgment and Order of the Labour Court to have been passed without any lawful authority and of no legal effect.”

Procedures of Dismissal of an employee can be avoided by simply terminating him with a 120 (one hundred and twenty) day’s notice u/s 26 of the said Labour Act even if disciplinary proceedings had already been initiated against him.

In Managing Director, Sonali Bank and 2 others Vs. Md. Jahangir Kabir Molla [(1996) 48 DLR (AD) 395] it was held that, 

“Departmental Proceeding was initiated against the employee but the same was subsequently dropped and a simple order of termination containing no charge or stigma was issued- the order was valid.”

 The Court cited two more cases in the Obiter Dicta, i. e. 22 DLR (SC) 284 and 23 DLR (SC) 85 and stated that in both the cases it has been held that if the impugned order of termination does not contain any charge or stigma, the order is valid.

In Khulna Newsprint Mills Ltd. Vs. Khulna Newsprint Employees Union, [25 DLR (SC) 85], it was observed that,

“The employee was previously arraigned for a criminal offence and the charge fell through. Thereafter the employee was terminated from service. The termination was held valid.”

In Karnaphuli Fertilizer Co. Ltd. Vs. Chairman, First Labour Court and another [56 DLR (2004) 502] it has been held that,

“Any employer is always free to take recourse to a simple order of termination in order to avoid the complex disciplinary action provided the intended action is not taken with a view to victimizing the worker for trade union activities”

In another suit (24 DLR 250) it has been observed that,

“A’s service was terminated by the Management of the Company in which he was employed on the ground that his service was no longer required. On evidence it has been established that A’s service had been terminated because he took active part in Union Affairs. Held: His service has been improperly terminated.”