Sultan Ahmed Talukder Vs. Registrar of Trade Union,Dhaka Division and others

Appellate Division Cases

(Civil)

PARTIES

Sultan Ahmed Talukder and anr…. ……………..Appellants

-vs-

Registrar of Trade Union,Dhaka Division and others ………………………Respondents

JUSTICE

Md. Ruhul Amin J

M. M. Ruhul Amin.J

Md. Tafazzul Islam.J

JUDGEMENT DATE: 6th April, 2004

Trade Unions Act 1965, Section 30. Industrial Relation Ordinance, 1969 ( I. R. O) No. XXIII of 1969 . Sections 10,13 and 21 Article 102 of the constitution.

There was no provision in the Industrial Relation Ordinance, 1969 ( I. R. O) for

obtaining a certificate from the Registrar of Trade Union regarding genuineness of any Executive committee of Trade Union and Registrar of Trade Unions has no authority under the law to declare a committee to be illegal and certify another committee to be a valid one…………………. (5)

Civil Appeal No. 135 of 2001 (From the judgment & order dated 05.11.2000

passed by the High Court Division in Writ Petition No. 3036 of 2000).

Dr. Kamal Hossain Senior Advocate, instructed by A. S. M, Khalequzzaman, Advocate-on-Record ……….For the Appellants

Abdul wadud Bhuiyan Senior Advocate, instructed by Fakrul Islam, Advocate-on

Record………… For respondent Nos. 5-8 10, 12, 15, 17, 18, 20-29.

Fida M. Kamal, Additional attorney General instructed by Ahsanullah Ullah Patwary,

Advocate-on Record……………….. For respondent Nos. 1-2

Abdur Razzak, Senior Advocate, instructed by Aftab Hossain Advocate-on-Record. …………For Respondent No. 30 (added).

Ex-parte……………. Respondent Nos. 3,4,9 11, 13, 14, 16, 19.

JUDGMENT

1. M. M. Ruhul Amin, J :- This appeal by leave is directed against the judgment and order dated 05.11.2000 passed by a Division Bench of the High Court Division in writ petition No. 3036 of 2000 disposing of the Rule without costs. :

2. Short facts are that in the writ Petition Memo No. B-900/577 dated 16.05.2000 issued under the signature of respondent No. 1. the Registrar of Trade Union declaring the committee formed under the leadership of Gazi Habibur Rahman and Md. Shafiqur Rahman respondent Nos. 5 and 6 of the writ petition to be executive Committee of Dhaka Water and Sewerage Authority (WASA) Sramik Karmachari Union and certification of the said committee by respondent No. 1 were challenged The further case is that as per provision of the said Sramik Karmachari Union’s Constitution the election of the Central Executive Committee of the union was held on 03.05.1995 Tenure of the executive committee comprising 25 members was for 2 years. The respondent No.5 Gazi Habibur Rahman and respondent No.6 Md. Shafiqur Rahman of the writ petition were elected as president and General Secretary respectively,. Subsequently on 02.04.1999 Gazi Habibur Rahman resigned from his post and petitioner No. 1 Sultan Ahmed Talukder was coopted as president of the said Union. The Union failed to hold election after expiry of 2 years to elect a new Executive Committee and the previous committee continued to run the functions of the Executive Committee, without holding any election and without complying with the provisions of the constitution with regard to holding of election the respondent Nos. 5 and 6 submitted a list of office bearers of the central Executive Committee of the Union to respondent No.1 on 27.12.1999 . The appellant on getting information about such fictitious committee filed an application before the respondent No. 1 that no election was held and the committee as submitted by respondent Nos. 5 and 6 was a fictitious one not elected as per provisions of constitution. He requested the Registrar not to accept the committee submitted by respondent Nos. 5 and 6, Respondent No.l by his Memo dated 02.01.2000 directed the appellants who were the president and Secretary of the Union to hold election within 45 days from the date of receipt of the letter issued by the respondent No.l. In that letter the respondent refused to accept the committee formed under the leadership of respondent.Nos 5 and 6 and further said that there was no alternative but to hold the election by ways of secret ballot. Respondent Nos. 5 and 6 challenging the legality and propriety of the latter dated 02.01.2000 filed Title Suit No. 10 of 2000 in the 2 n d Court of Assistant Judge, Dhaka. The respondent Nos. 5 and 6 who were plaintiffs in the suit were examined as P.Ws 1 and 2. Finally they filed an application for withdrawal of the suit but the learned Assistant Judge by his judgment and decree dated 12.04.2000 dismissed the Suit as not being pressed. On 11.05.2000 the Deputy Managing Director, Finance and Administration of WASA wrote a letter to the registrar of Trade Union to know which was one of the Unions the lawful executive committee of Dhaka WASA Sramik Karmachari Union . The respondent No.l by impugned memo informed the Managing Director, WASA that the committee formed, under the leadership of respondent No. 5 Gazi Habibur Rahman had been certified as committee of the central Executive Committee of the Union which was challenged by the appellant in Writ Petition No. 3036 of 2000. The High Court Division issued a rule and stay. The High Court Division while hearing the application for vacating the order of filed by respondent Nos. 5 to 29 found the writ petition to be premature and disposed of the Rule. The High Court Division also observed that the petitioners ought to have referred the matter under section 30 of the Trade Unions Act.

3. Leave was granted to consider the submissions that Title Suit No. 10 of 2000 filed by respondent Nos. 5 and 6 for declaration that the committee declared elected on 5.12.1999 was legally elected committee of the Union and the letter issued by the Registrar dated 02.01.2000 was inoperative as the suit was dismissed on 12.04.2000 for non-prosecution there was no question of declaring the committee headed by respondent Nos. 5 and 6 as being a lawfully elected committee and the further submission that the High Court Division failed to consider that there was no provision in the Industrial Relation Ordinance, 1969 that the Registrar had authority to decide about the validity and legality of any elected committee and further that the High Court Division failed to exercise its power of judicial review under Article 102 of the constitution in the manner required by the constitution and established judicial, practice in relation to such matters.

4. We have heard Dr. Kamal Hossain, the learned Counsel for the appellants and Mr. Abdul Wadud Bhuiyan , the learned Counsel for the respondent Mr. Md. Abdur Razzaq, the learned counsel for respondent No. 30 and perused the judgment of the High Court division and other connected papers.

5. Dr. Hossain mainly argued that the learned judges of the High Court Division held that the writ petitioners ought to have referred the matter under section 30 of the Trade Unions Act but Trade Unions Act 1965 was repealed by IRO No. XXIII of 1969 dated 13.11.1969 and as such the High Court Division referred to the provision of repealed law which was not proper. He next submitted that there was no provision in the Industrial Relation Ordinance, 1969 ( I. R. O) for obtaining a certificate from the Registrar of Trade Union regarding genuineness of any Executive committee of Trade Union and Registrar of Trade Unions has no authority under the law to declare a committee to be illegal and certify another committee to be a valid one. He lastly submitted that accordingly the matter may be sent back to the High Court Division for hearing the Rule on merit.

6. Mr. Abdul Wadud Bhuiyan tried to argue that under sections 10, 13 and 21 of the I. R. O the registrar of Trade Unions has such power as was exercised in the instant case but on perusal of these sections it is quite clear that these sections of the Industrial Relation Ordinance, 1969 do not confer any such power on the Registrar of Trade Unions. Mr. Bhuiyan Ultimately conceded that under the Industrial Ordinance, 1969 the Registrar has no such power and authority to certify an Executive Committee of the Trade Unions to be a valid committee or to declare another committee to be invalid one. He also conceded that the Trade Unions Act, 1965 was repealed by IRO No. XXIII of 1969 dated 13.11.1969.

7. Thus it appears that the High Court Division referred to section 30 of the Trade Unions Act, 1965 which was a repealed law and the Registrar Trade Unions has no authority to issue certificate to a particular committee as a genuine committee declare another committee to be an availed one.

8. In the circumstances, we are of the view that the High Court Division committed error of law which requires interference by this court.

9. The learned Counsel for Respondent No. 30 has submitted that election in the meantime has been held and the newly elected members of the committee are running the office. In the instant appeal point is how far High Court Division was correct is not disposing of the writ petition on merit.

10 The appeal is accordingly allowed without any order as to costs. The matter is sent

back to the High Court Division to dispose of writ petition on merit.

Ed

Source: I ADC (2004), 195

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