IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION )

Present:

Mr. Justice Md. Nazrul Islam Talukder And

Mr. Justice Kazi Ebadoth Hossain

Criminal Revision No. 902 of 2024

Factories and Establishment Inspection Directorate, Dhaka, represented by Md. Tariqul Islam, Labour Inspector (General), Office of the Deputy Inspector General, Department of Inspection for Factories and Establishments, 4 Rajuk Avenue, Dhaka

......... Petitioner.

-Versus-

Chairman, Labour Appellate Tribunal, Dhaka and others.

....... Opposite-parties.

Mr. Md. Khurshid Alam Khan, Senior Advocate with Mr. Titus Hillor Rema, Advocate

....... For the petitioner.

Mr. Md. Saiefuddin Khaled, D.A.G with Mr. Md. Asaduzzaman, A.A.G with Mrs. Afifa Begum Swapna, A.A.G and Mr. Sarwar Akhtar Masud, A.A.G 

……. For the State-opposite party. Mr. Abdullah-Al-Mamun, Advocate

.......For the Opposite-party Nos. 2-5.

 Heard on 06.03.2024, 10.03.2024 and 14.03.2024,         

Judgment on: 18.03.2024

Md. Nazrul Islam Talukder, J:

On an application under Section 439 read with

this Rule, at the instance of the petitioner, was issued calling upon the opposite-parties to show cause as to why order No.2 dated 28.01.2024 passed by the learned Chairman, Labour Appellate Tribunal, Dhaka in Criminal Appeal No.37 of 2024 so far as it relates to “let operation of the impugned judgment and order dated 01.01.2024 passed by the Chairman, 3rd Labour Court, Dhaka in BLA (Criminal) Case No.228 of 2021 be stayed” should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

It is stated in the application that this criminal revisional application under Section 439 read with Section 435 of the Code of Criminal Procedure, 1898

has been filed by the petitioner before the Hon’ble High Court Division challenging order No. 2 dated 28.01.2024 passed by the learned Chairman, Labour Appellate Tribunal, Dhaka in Criminal Appeal No. 37 of 2024 for setting aside the impugned order staying the operation of the entire impugned judgment and order dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in BLA (Criminal) Case No. 228 of 2021.

It is further stated in the application that on 20.08.2021, one S.M. Arifuzzaman, Labour Inspector (General), Department of Inspection of Factories and Establishment, Dhaka lodged a petition of complaint being B.L.A (Criminal) Case No.228 of 2021 before the

3rd Labour Court, Dhaka against the convict-opposite party Nos. 2-5 alleging, inter alia, that in course of inspection of GTC (hereinafter referred to as GTC), he detected infringements of the following provisions of the Bangladesh Labour Act, 2006 and the Bangladesh Labour Rules, 2015: (1) on completion of probationary period, jobs of the labours and employees are not made permanent in violation of Section 4(7) of the Bangladesh Labour Act, 2006; (2) Labour and Employee are not granted annual leave with pay or money against earned leave in violation of Section 117 of the Bangladesh Labour Ain, 2006 and (3) Labour Participatory Fund and Labour Welfare Fund were not constituted and 5% of the net profit was not deposited

in above fund under the Labour Welfare Foundation Law, 2006. The complainant sent a letter by registered post to the convict-opposite party Nos. 2-5 vide Memo No. 3982/Exjxfx/Y¡L¡ on 01.03.2020 for stopping above violation and taking remedial measures. The convict- opposite party Nos. 2-5 sent a letter of compliance on 09.03.2020, but the same was found to be not satisfactory. On the direction of the higher authority, he again inspected GTC on 16.08.2021 and sent another letter on 19.08.2021 to the convict-opposite party Nos. 2-5 who again sent a letter of reply, but the same was again found to be not satisfactory. The convict-opposite party Nos. 2-5 have committed an offence punishable under Section 303(Umo) and 307 of the Bangladesh

Labour Act, 2006 and the Bangladesh Labour (Amendment) Act, 2013. Accordingly, BLA (Criminal) Case No. 228 of 2021 has been started against the opposite party Nos. 2-5 under Sections 303 (Uma) and 307 of the Bangladesh Labour Act, 2006. Hence the Case.

After receiving the aforesaid complaint, the learned Chairman of the 3rd Labour Court, Dhaka did not examine the complainant as the complainant being a public servant is exempted by the following Section 200 (Ka Ka) of the Code of Criminal Procedure, 1898, and thereby issued summons against the convict- opposite party Nos. 2-5 for taking cognizance of

offence under Sections 303 (Uma) and 307 of the Bangladesh Labour Act, 2006.

The learned Chairman of the Labour Court, Dhaka took cognizance of the offences as made in the complaint against the convict-opposite party Nos. 2-5.

At the trial, charge has been framed by the learned Chairman of the 3rd Labour Court, Dhaka against the accused-opposite party Nos. 2-5 under Sections 303 (Uma) and 307 of the Bangladesh Labour Act, 2006 and the charge was also read over to the accused- opposite party Nos. 2-5 who pleaded not guilty and prayed for justice by way of trial.

During trial, the prosecution examined as many as 4 (four) P.Ws. and they have been duly cross-examined by the defence but the defence examined none.

After recording the evidence from the prosecution witnesses, the accused-opposite party Nos. 2-5 were examined under Section 342 of the Code of Criminal Procedure, 1898, in which, they again pleaded not guilty and claimed to be innocent.

The defence case, as it appears from the trend of the cross-examination of the prosecution witnesses, from the examination of accused under section 342 of the Code of Criminal Procedure, 1898 and also from the written statement is that the accused-opposite party Nos.2-5 claim themselves to be innocent. Thereafter, on several occasions, the matter was being heard by the learned Chairman of Labour Court and after hearing, the learned Chairman of Labour Court fixed the matter for judgment on 01.01.2024.

After concluding trial, in presence of the both the parties, the Chairman, 3rd Labour Court, Dhaka after thorough assessment of evidence and considering the materials on record as a whole, convicted the accused- opposite party Nos. 2-5 under Sections 303 (Uma) and 307 of the Bangladesh Labour Act, 2006 and sentenced each of them to suffer simple imprisonment for a period of 6 (six) months with a fine of Tk. 5,000/- (Tk. five thousand), in default, to suffer simple imprisonment for 10  (ten)  days  each  under  Section  303  (Uma)  of  the

Bangladesh Labour Act, 2006 with a fine of Tk. 25,000/- (Tk. twenty five thousand), in default, to suffer additional 15(fifteen) days simple imprisonment each under Section 307 of the Bangladesh  Labour Act, 2006. Apart from this, the convict-opposite party Nos. 2-5 were directed to make the services of all the workers/employees of Grameen Telecome who completed their probationary period permanent with all facilities and benefits and to grant annual leave with pay or money against earned leave and to establish workers Profit Participation Fund and Welfare Fund and to pay five percent (5%) of its Net Profit to the Workers Profit Participation Fund, Welfare Fund and Bangladesh Worker’s Welfare Foundation Fund under Worker Welfare Foundation Act, 2006 at a ratio of 80:10:10 within the next 30 days by the judgment and order of conviction and sentence dated 01.01.2024.

Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in B.L.A. (Criminal) Case No. 228 of 2021, the convict-appellants filed the Criminal Appeal No. 37 of 2024 before the Chairman, Labour Appellate Tribunal, Dhaka.

During pendency of Criminal Appeal No. 37 of 2024, the convict-appellants filed an application under Section 426(1) of the Code of Criminal Procedure, 1898 for suspending the execution of the sentence,

order and directions given by the judgment and order dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka.

It is stated in the petition of appeal that at the time of admission of appeal, without hearing the complainant-Respondent No. 2 (herein the petitioner), the Chairman of the Labour Appellate Tribunal, Dhaka, by the impugned order No.2 dated 28.01.2024, stayed the operation of the judgment and order dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in B.L.A. (Criminal) Case No. 228/2021 till 03.03.2024 and enlarged the convict-appellant Nos. 2-5 on bail on furnishing bail bond of Tk. 30,000/- to the satisfaction of the Registrar of the Labour Appellate Tribunal, Dhaka.

Being aggrieved by the same, one Md. Tariqul Islam, Labour Inspector (General), office of the Deputy Inspector General, on  behalf of the Factories and Establishment Inspection Directorate, Dhaka filed this Criminal Revision No. 902 of 2024, challenging the impugned Order No. 2 dated 28.01.2024 staying the operation of the entire judgment and order dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in B.L.A. (Criminal) Case No. 228/2021.

Upon hearing the parties, this court, by its order dated 05.02.2024, issued Rule and stayed the impugned order passed the learned Chairman, Labour Appellate Tribunal, Dhaka till disposal of the Rule.

At the very outset, Mr. Md. Khurshid Alam Khan, the learned Senior Advocate along with Mr. Titus Hillol Rema, the learned Advocate for the Petitioner, submits that the learned Chairman, Labour Appellate Court, Dhaka without hearing the complainant-respondent No. 2, most illegally stayed the operation of the judgment and order of the Labour Court at the time of admission of appeal hearing and as such, the order of Labour Appellate Tribunal so for as it relates to staying the operation of the judgment and order of the Labour Court is apparently wrong and ex-facie illegal and for this reason, the impugned order is liable to be set aside for ends of justice.

He next submits that the learned Chairman of Labour Appellate Tribunal, Dhaka has no jurisdiction to stay the operation of the judgment and order at the time of admission of hearing and that being the reason, the impugned order passed by the learned Chairman of Labour Appellate Tribunal staying the operation of the judgment and order of the Labour Court is liable to set aside.

Mr. Khan with reference to Section 426(1) of the Code of Criminal Procedure, candidly submits that the learned Chairman of Labour Appellate Tribunal may suspend the sentence by recording reasons but in the instant impugned order, the learned Chairman of the Labour Appellate Tribunal, Dhaka, as per requirement of Section 426(1) of the Code of Criminal Procedure, did not assign any reason which is totally wrong and against the spirit of law and accordingly, the learned Chairman of the Labour Appellate Tribunal, Dhaka also passed the impugned order without assigning any reason whatsoever violating the mandatory provision of law as enunciated in Section 426(1) of the Code of Criminal Procedure.

He emphatically submits that the learned Chairman, Labour Appellate Court, Dhaka has no jurisdiction to stay the operation of conviction of the trial court; in support of his submission, Mr. Khan has referred to a legal decision taken in the case of AKM Fakhrul Islam vs State reported in 24BLC(HCD) (2019)603, wherein it has been categorically stated and laid down that there is no provision for staying the conviction during pendency of an appeal and it can only be set aside or affirmed on disposal of the appeal.

Mr. Khan with reference to a case of Reazuddin Ahmed (Md) vs State and another reported in 49DLR(AD)(1997)64, additionally submits that the High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice.

Mr. Khan with reference to a case of Mirza Abbas vs State and another reported in 74DLR(HCD) (2022)41, strenuously submits that this court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order of finding in question.

He then submits that though the impugned order of stay was passed up to 03.03.2024 but the fact remains that the impugned order was stayed by this court on 05.02.2024 so there was no scope to extend the order of stay by the learned Chairman of the Labour Appellate Tribunal and as such, it is presumed that the life of the stay order still subsists.

He then submits that if for the sake of argument, it may be said that there is no lease of life of the impugned order, even then the illegality of the impugned order cannot go automatically.

Mr. Khan, in support of his submissions, has referred to a case of Abdur Rahman Kha (Md) vs State reported in 56DLR(HCD)(2004)213 wherein it has been held that under Section 435 of the Code, High Court Division may call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and under Section 439 of the Code in any such case proceeding of which has been called for by itself or which otherwise comes to the knowledge of the Court, High Court Division in its discretion may exercise any of the powers vested in it under the said provision of law.

Mr. Khan, in support of his submissions, has referred to another case of Major Md Nazmul Haque and others vs State and another reported in 70DLR(HCD)(2018)293 wherein it has been laid down that the revisional jurisdiction of the High Court Division vested in Section 439 read with Section 435 of the Code is exercised only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality or for prevention of gross miscarriage of justice and considering all the aspects of the case, the Rule may be made absolute.

On the other hand, Mr. Abdullah-Al-Mamun, the learned Advocate appearing on behalf of the opposite- party Nos. 2-5, submits that if a court convicts and sentences the accused, the accused may file an appeal to a higher court asking it to review the lower court’s decision for legal errors that may have affected the outcome of the case; if the appellate court grants the appeal, it may reverse the lower court’s decision in whole or in part; if the appellate court denies the appeal, the lower court’s decision stands; in the instant case, the entire case is essentially involved in the appeal, and as such, if the operation of directions given

under section 310(3) of the Bangladesh Labour Act, 2006 to the effect “Apart from this, the accused nos. 1-4 are directed to make the services of all the workers/employees of Grameen Telecom who completed their probationary period permanent with all facilities and benefits, to grant annual leave with pay or money against earned leave, to establish Workers Profit Participation Fund and Welfare Fund and to pay five percent (5%) of its Net Profit to the Workers Profit Participation Fund, Welfare Fund and Bangladesh Worker’s Welfare Foundation Fund under Worker Welfare Foundation act, 2006 at the ration of 80:10:10 within the next 30 days” is not stayed, section 310(3) of the Bangladesh Labour Act will come into play and

warrant of conviction may be issued and under such circumstances if the directions of the Chairman, Labour Court, Dhaka are not kept under suspension pending disposal of the Rule/appeal, the very purpose and intent of appeal will be redundant and become infructuous and this will create legal uncertainty, which will go against the spirit of law as well as against the principles of fair justice laid down in the Constitution..

He next submits that “appeal admitted” means there is an existing procedure for someone to challenge a decision made by some authority in a court of law; it means there is an existing procedure that allows the aggrieved party to challenge a decision by appealing against the decision to a judge of higher court who can review the lower court’s decision and as such, the impugned order dated 05.02.2024 is in conflict with the existing procedure of law.

He then submits that in the petition of appeal filed by the convict-appellants before the Chairman, Labour Appellate Tribunal, Dhaka, there was no prayer with regard to stay of the conviction but the learned Chairman of the Labour Appellate Tribunal exercising his inherent power and jurisdiction has stayed the order of conviction along with the order of sentences.

He further submits that there is no illegality in the order of the Labour Appellate Tribunal in staying the operation of the impugned judgment and order of the Labour Court and for this reason, this Rule is liable to be discharged for ends of justice.

He candidly submits that there is no life of the impugned order because the impugned order was passed up to 03.03.2024 and since the life of the impugned order has already expired, there is no cause of action for making the Rule absolute.

He vigorously submits that pursuant to Section 426(1) of the Code of Criminal Procedure, the execution of sentence, realization of fine and the directions given under Section 310 of the Bangladesh Labour Act, 2006 in the judgment and order dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in BLA (Criminal) Case 228 of 2021 may

be remained suspended till disposal of the appeal by allowing the application for correction by this Hon’ble Court and making corrections in the order dated 05.02.2024 passed by this court, otherwise the intent and purpose of appeal will become redundant and infructuous and thus above named opposite party Nos. 2-5 will suffer irreparable loss and injury.

He emphatically submits that on 03.03.2024, the learned Chairman of the Labour Appellate Tribunal upon hearing the parties extended the period of bail up to 16.04.2024; there is neither any stay of the conviction by the learned Chairman of the Labour Appellate Tribunal since the stay order was passed up to 03.03.2024 nor there is any delay in disposing of the appeal pending before the learned Chairman of the Labour Appellate Tribunal, and as such, the filing of this revisional application has lost its efficacy and effectiveness and there remains no ground whatsoever for interference in the proceeding/appeal pending before the learned Chairman of the Labour Appellate Tribunal, by this Honourable court and it has also become groundless, futile and ineffective in law for any interference by this Honourable court vis-a-vis the mandate of law.

He strongly submits that it is necessary to dispose of the revisional application bearing Criminal Revision No. 902 of 2024 by vacating the Rule issued upon the opposite-parties above named on 05.02.2024 with a direction that the Labour Appellate Tribunal itself is empowered in law by virtue of the provisions of Section 426(1) to suspend the execution of sentence and realization of fine and the directions given under Section 310 of the Bangladesh Labour Act, 2006 in the judgment and order dated 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in BLA (Criminal) Case 228 of 2021, otherwise it will create serious miscarriage of justice.

He strenuously submits that the Chairman, Labour Appellate Tribunal, has power and authority to correct any illegality and/or irregularity if any as and when it is brought to the notice of the Labour Appellate Tribunal and under such circumstances, there was no necessity to issue Rule and stay the operation of the order passed by the learned Chairman, Labour Appellate Tribunal and for this reason, this Rule may be discharged for ends of justice.

He lastly submits that the petitioner could have moved before the Labour Appellate Tribunal first but instead of filing any application before the Labour Appellate Tribunal, the petitioner has committed procedural wrong resulting in gross error of law.

Mr. Md. Saiefuddin Khaled, the learned Deputy Attorney-General appearing for the State-opposite- party, submits that the Rule may be made absolute setting aside the impugned order because that order has not passed in compliance with the mandate of law as contained in Section 426(1) of the Code of Criminal Procedure.

 We have gone through the revisional application along with the counter-affidavit and application for correction of the order dated 05.02.2024 passed by this court, filed by opposite-party Nos.2-5 and examined the papers and documents annexed therewith.

 We have also heard the learned Advocates for the respective parties and considered their submissions to the best of our wit and wisdom.

Before coming to a decision and in order to appreciate the submissions of the learned Advocates for the respective parties and for convenience of discussions, we want to quote the relevant portion of Section 426(1) of the Code of Criminal Procedure which runs as follows:

1.            Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.
2.            The power conferred by this section on an Appellate Court may be exercised also by the High Court Division in the case of any appeal by a convicted person to a Court subordinate thereto.

(2A) When any person is sentenced to imprisonment for a term not exceeding one year by a court, and an appeal lies from that sentence, the court may, if the convicted person satisfies the court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-Section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(2B) Where High Court Division is satisfied that a convicted person has been granted special leave to appeal to the Appellate Division of the Supreme Court against any sentence which it has imposed or maintained, it may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if the said person is in confinement, that he be released on bail.

3.            When the appellant is ultimately sentenced to imprisonment, or transportation, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

We have also perused the impugned order No.2 dated 28.01.2024 by which the learned Chairman, Labour Appellate Tribunal stayed the operation of the impugned judgment and order passed by the learned Chairman, Labour Court, Dhaka. The above noted impugned order No.2 dated 28.01.2024 passed by the learned Chairman, Labour Appellate Tribunal runs as follows:

“Heard the learned Advocate Mr. Md. Abdullah Al Mamun, appearing on behalf of the convict- Appellants and perused the impugned judgment and order.

The Appeal is admitted. Call for the record. Since, the respondent No.2 appears by filling vokalatnama, service of notice be dispensed with.

The Convict-appellants surrendered before this Tribunal and pray for bail by submitting a separate bail petition.

Considering the submissions of the learned advocate appearing for the Convict-appellants, I am inclined to grant them bail till 03.03.2024.

Let operation of the impugned judgment and order dated- 01.01.2024 passed by the learned Chairman, 3rd Labour Court, Dhaka in BLA (Criminal) Case No.228/2021 be stayed till date i.e 03.03.2024 and the Convict-appellants 1. Professor Dr. Muhammad Yunus 2. Md. Ashraful Hassan 3. Nurjahan Begum and 4. Md. Shahjahan be released on furnishing bail bond of Tk. 3,0000/- to the satisfaction of the Registrar of this Tribunal. Bail bond to be signed by one local elite person and engaged lawyer as surety.”

It is pertinent to note that as per mandate of Section 426(1) of the Code of Criminal Procedure, the Chairman, Labour Appellate Tribunal, may stay the operation of the sentence by recording reasons whatsoever.

Now, let us examine whether the learned Chairman of Labour Appellate Tribunal has recorded any reasons for staying the operation of the order of the sentence.

On our perusal and examination, it is clearly manifested that no reasons have been recorded in the impugned order staying the operation of the judgment and order passed by the learned Chairman, 3rd Labour Court, Dhaka.

Apart from the above, as per submissions of Mr. Khan, there is no provision of staying the order of conviction as per Section 426(1) of the Code of Criminal Procedure. Mr. Khan, in support of his submissions, has referred to a decision in the case of AKM Fakhrul Islam vs State reported 24BLC(2019)603, wherein it has been categorically stated and laid down that there is no provision for staying the conviction during pendency of an appeal. It can only be se-aside or affirmed on disposal of the appeal.

It is worthwhile to mention that as per mandate of law as contemplated in Section 426(1) of the Code of Criminal Procedure, two requirements require to be fulfilled for passing any order staying  and/or suspending the operation of the judgment and order passed by the learned Chairman, 3rd Labour Court, Dhaka. Two essential requirements are as follows:

1. There must be some reasons to be recorded for passing the order of stay.
2. There is no provision of staying the order of conviction as per mandate of law.

The vindication of Justice requires that the essential requirements of law must be followed and the same must not be circumvented any way.

In response to our query with regard to stay of conviction, Mr. Abdullah-Al-Mamun, very emphatically submits that they have not prayed for any stay of the order of conviction but the learned Chairman of Labour Appellate Tribunal at his own discretion, power and authority stayed the same; they, in fact, have not committed any wrong; since the learned Chairman of Labour Appellate Tribunal has suo moto passed the order, that order may be corrected by the learned Chairman of the Labour Appellate Tribunal if that matter may be brought to the notice of the learned Chairman of the Labour Appellate Tribunal; since no steps have been taken by the learned Advocate for the petitioner in this regard, this matter may be sent to the learned Chairman of the Labour Appellate Tribunal for correction of the same by discharging the Rule.

In deciding the legal issues in hands, we want to make a discussion in light of legal decisions given by this court.

In the case of Major Md. Nazmul Haque and others vs State and another reported in 70DLR(2018)293, it has been laid down that the revisional jurisdiction of the High Court Division vested in Section 439 read with Section 435 of the Code is exercised only in exceptional cases where the interest of public justice required interference for the correction of a manifest illegality or for prevention of gross miscarriage of justice.

In case of Abdur Rahman Kha (Md) vs State reported in 56DLR(2004)213, it is held that under Section 435 of the Code, the High Court Division may call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order and under Section 439 of the Code in any such case proceeding of which has been called for by itself or which otherwise comes to the knowledge of the Court, High Court Division in its discretion may exercise any of the powers vested in it under the said provision of law.

In the case of Reazuddin Ahmed (Md) vs State and another reported in 49DLR(AD)(1997)64 it is laid down that the High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice.

In the case of Mirza Abbas vs State and another reported in 74DLR(2022)41, it has been opined that this court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the property of the impugned order of finding in question.

As per submissions of Mr. Abdullah-Al-Mamun, since there is no life of the impugned order, that order cannot be questioned before this court and for this reason, the Rule may be discharged.

       But in reply to the same, Mr. Khan points out that the impugned order was passed on 28.01.2024 and the order of this court was passed on 05.02.2024 staying the operation of the impugned order passed by Chairman, Labour Appellate Court, Dhaka. So, it can not be said at this stage that there is no life of the impugned order. Moreover, the High Court Division, by exercising its supervisory and paternal authority, can look into the matter and scrutinize any illegality if occurred in the impugned order causing serious miscarriage of justice.

Having considered all the facts and circumstances of the case, the submission advanced by the learned Advocates for respective parties and the propositions of law that have been cited and discussed above, we are of the view that the Chairman, Labour Appellate Court, has committed illegality and impropriety in staying the entire judgment and order passed by the learned Chairman, 3rd Labour Court, Dhaka for the following reasons:-

1. That the learned Chairman, Labour Appellate Tribunal has not assigned any reason staying the operation of the judgment and order passed by the learned Chairman, 3rd Labour  Court, Dhaka.
2. That as per Section 426(1) of Code of Criminal Procedure, there is no provision for staying the conviction passed by the learned Chairman, 3rd Labour Court, Dhaka but the Chairman, Labour Appellate Court, Dhaka, contrary to law,

initially at the time of admission of appeal stayed the conviction which, in our view, is against the mandate of law and is ex-facie illegality that cannot sustain in the eye of law.

3. That it is evident from the impugned order that the opposite-party Nos. 2-5 were enlarged on bail at the time of admission of appeal for preferring appeal. Accordingly, our considered view is that since the accused-opposite-parties are enlarged on bail, the sentence is automatically and impliedly suspended. So, there is no need to pass any express order for suspending and/or staying the operation of the judgment and order with respect to the sentences.

Considering the facts and circumstances of the case and discussions made above, we are led to hold the view that there are sufficient reasons to interfere with the impugned order No.2 dated 28.01.2024 passed by the learned Chairman, Labour Appellate Tribunal, Dhaka.

Accordingly, we find merit in this Rule.

In consequence thereof, the Rule is made absolute with the following directions and orders:

1. The conviction as awarded against the opposite-party Nos. 2-5 will remain operative till disposal of the appeal since there is no provision for staying the conviction during pendency of the appeal and it can only be set aside, affirmed and modified upon disposing of the appeal.

2. Since the opposite-party Nos.2-5 were enlarged on bail by the learned Chairman, Labour Appellate Tribunal, Dhaka, there is no necessity to pass any express order for suspending and/or staying the sentence and after obtaining bail, the judgment and order so far as it relates to sentence is automatically and impliedly suspended and accordingly, the sentences against the opposite-party Nos. 2-5 will remain suspended until the period of their bail is continued and/or exists.

3. The realization of fine will be stayed till disposal of the appeal.
4. The directions so far as it relates to compliance with the orders passed by the learned Chairman, Labour Court, by the convict- opposite-party Nos. 2-5, will also remain stayed till disposal of the appeal.
5. The impugned order No.2 dated 28.01.2024 passed by the learned Chairman, Labour Appellate Tribunal, Dhaka, so far as it relates to “let operation of the impugned judgment and order dated 01.01.2024 passed by the learned

Chairman, 3rd Labour Court, Dhaka in BLA (Criminal) Case No.228 of 2021 be stayed” is set aside.

The learned Chairman, Labour Appellate Tribunal, Dhaka is directed to record the necessary order in the order book of Criminal Appeal No. 37 of 2024 in the light of the directions and orders given by this court.

The opposite-party Nos. 2-5 are also directed to apprise the learned Chairman, Labour Appellate Tribunal, Dhaka of their whereabouts as and when they require to go abroad and/or oversees.

The learned Chairman, Labour Appellate Tribunal, Dhaka is directed to dispose of the criminal appeal on merit as soon as possible.

Communicate this judgment and order to the learned Chairman of the Labour Appellate Tribunal, Dhaka, at once.  

                                                       K azi Ebadoth Hossain, J:

I agree.