AVP, Uttara Bank Ltd. (Petitioner)
Vs.
Shahabuddin Khan and others (Opposite-Parties)
Supreme Court
High Court Division
(Civil Revisional Jurisdiction)
Present:
AKM Fazlur Rahman J
Judgment
June 27, 2006.
Cases Referred To-
Mujibur Rahman Sarkar vs. Chairman, Labour Court, Khulna 31 DLR 301; Indo-Pakistan Corporation Ltd. vs. Chairman, Labour Court 21 DLR 265; Dosta Textile Mills Ltd. vs. Sudhansu Bikash Nath 40 DLR (AD) 45; Managing Director, Rupali Bank Ltd vs. Tofazzal Hossain and others 44 DLR (AD) 260; Managing Director, Rupali Bank Ltd. vs. Md. Nazrul Islam Patwary 1995 BLD (AD) 169 = 48 DLR (AD) 62; Indo-Pakistan Corporation Ltd. vs. Chairman 21 DLR 285 Eastern Mercantile Bank Ltd. vs. Mohammad Shamsuddin 21 DLR (SC) 365.
Lawyers involved:
AQM Safiullah, with Md Ali Jinnah, Advocates—For the Petitioner.
Habibul Islam Bhuiyan, Advocate—For Opposite Party No. 1.
Civil Revision No. 950 of 2000.
Judgment
AKM Fazlur Rahman J.- This Rule issued on an application under section 115(1) of the Code of Civil Procedure is directed against the judgment and decree dated 9-11-1999 passed by the Subordinate Judge (now Joint District Judge), 1st Court, Mymensingh on Other Appeal No. 126 of 1999 dismissing the appeal and affirming the judgment and decree dated 16-3-1999 passed by the Senior Assistant Judge, Gafargaon, Mymensingh in Other Suit No. 53 of 1994 decreeing the suit.
2. The facts leading to the issuance of the Rule, in brief, are that the opposite party No. 1 as a plaintiff filed Other Class Suit No. 196 of 1992 in the Court of the Senior Assistant Judge, Mymensingh Sadar in which the petitioner was the defendant No. 3 for declaration that the order of dismissal of the plaintiff-opposite party No.1 from the service vide Memo No. HO/ADMN/DD/91/6-B dated 5-1-1991 issued by the petitioner-defendant No.3 is illegal, malafide, inoperative and without legal effect and that the plaintiff-opposite party No. 1 is still in service of the Uttara Bank with a direction to reinstate him in service.
3. The case of the plaintiff opposite party No. 1, in brief, is that he was appointed as a Cashier in the then Nationalised Uttara Bank on 9-11-1977 and he joined in that post at Ghorashal (Narsingdi) Branch of the Bank on 25-11-1977. Subsequently, he was transferred to the different branches of the bank. He was promoted to the post of Officer Grade-II (Cash) and ultimately, posted at Mymensingh Branch of the Bank. While he was working there on 13-5-1989 he met with a road accident and his both hands were fractured. He was under treatment for about 5/6 months and after recovery he joined in his office at Mymensingh Branch in the month of November 1989. In spite of specific instruction from the Government that on the Victory Day the national flag would be hoisted on all Government and Semi-Government offices, the defendant No. 5, the Manager of Mymensingh Branch of Uttara Bank Limited did not hoist national flag on the Bank Building. The plaintiff-opposite party No. 1 as a freedom fighter protested his such act. At this he became annoyed upon him. While the plaintiff-opposite party No. 1 was working in Mymensingh Branch he was transferred by the letter dated 4-21990 to Khulna Branch. He made a representation to the authority to cancel that order of transfer on the ground of his ill health and requested to transfer him to any other branch of the Bank at Tangail or Netrokona or Kishoregonj. But the authority did not pay heed to it and by an order dated 7-3-1990 released him. After receipt of that order of release he fell ill and was under treatment for 7 (seven) months. After recovery from illness he by a letter dated 22-3-1990 requested the defendant No.4 to cancel his transfer order but the defendant No. 4 instead of considering his such prayer by a memo dated 3-4-1990 asked him to join in his new place of posting in the Khulna Branch of the Bank. He again, by another letter dated 10-4-1990 with a Medical Certificate prayed for cancellation of the transfer order informing the authority that due to illness he was not in a position to join at the new place of posting. The defendant No. 4 by the letter dated 21-5-1990 framed charge against him for gross negligence of duty, insubordination and misconduct asking him to show cause within 7(seven) days as to why disciplinary action would not be taken against him. He submitted his reply on 3-6-1990. The defendant No.6, the Vice-President of the Bank, by a letter dated 23-6-1990 illegally asked him to appear before him at Khulna with all the necessary papers and documents for the purpose of enquiry. He on receipt of such notice informed the defendant No. 6 that due to illness he was not in a position to appear before him at Khulna and requested him to make necessary arrangement for holding enquiry at Mymensingh, but in vain. The defendant Nos. 6-8, the members of the Enquiry Board, without intimating him submitted an ex parte report finding him guilty of the charges levelled against him. He after recovery from the illness went to Khulna and joined his duty on 7-101990. But the Manager of Khulna Branch did not allow him to join in duty. The defendant No. 4 by a letter dated 28-10-1990 informed him that the authority had decided to dismiss him from the service of the Bank and asked him to show cause within 10(ten) days as to why punishment of dismissal from service would not be imposed upon him. Then, by a letter dated 11-11-1990 he gave reply. But the authority without giving him an opportunity of being heard, by a letter dated 5-11991 issued under the signature of the defendant No. 4 dismissed him from the service. Thereafter, he submitted a grievance petition on 6-2-1991 to the higher authority which was rejected. Then he filed the suit.
4. The suit was contested by the defendant No. 3 by filing a written statement denying the material allegations made in the plaint and contending, inter alia, that the suit was not maintainable in its present form; that the plaintiff-opposite party was a worker as defined in section 2(v) of the Employment of Labour (Standing Orders) Act, 1965 and, as such, his remedy is available in the Labour Court, not in the Civil Court; that by memo dated 4-2-1990 the plaintiff-opposite party No. 1 was transferred to Khulna from Mymensingh; that his service was not satisfactory; that he was always irregular in his duty and used to remain absent from his duties without prior permission of the authority; that for such negligence and unauthorised absence in duties he was warned on different occasions, that after transfer to Khulna Branch from Mymensingh Branch he did not join in his new place of posting, that he was released from Mymensingh Branch on 7-3-1990 with a direction to join Khulna within six days and for that purpose he was given advance of Taka 5,000, that on receipt of the release order and advance traveling allowance he abstained himself from joining in the new place of posting; that ultimately, he was charge sheeted for negligence of duty, misconduct and insubordination and the same was communicated to him vide a memo dated 21-51990; that he denied the charges brought against him by filing a written statement on 3-6-1991; that an Enquiry Committee was set up for holding enquiry; that the Enquiry Committee notified him to appear before them on 23-6-1999 with all papers and witnesses; that he in spite of receipt of notice did not appear before the Enquiry Committee and, as a result, enquiry was held ex parte in his absence and the Enquiry Committee submitted report finding him guilty of the charges levelled against him; that on 10-7-1990 he tendered his resignation to the management of the Bank, on receipt of which the management informed him to adjust all the arrear dues for consideration of this resignation letter; that he did not give any reply; that thereafter, the authority of the Bank by a letter dated 28-101990 issued a second show cause notice asking him to explain why he would not be dismissed from the service; that he by a letter dated 11-11-1990 gave reply to such second show cause notice, which was found not satisfactory by the authority and accordingly, he was dismissed from service by the letter dated 5-1-1991, on receipt of which he filed a grievance petition before the appropriate authority of the Bank, which was ultimately rejected affirming the order of his dismissal; that he was given an opportunity of being heard before dismissal and that he had no managerial or administrative function in the Bank.
5. In that suit the defendant No. 3 (petitioner) filed an application under Order VII, rule 11 of the Code of Civil Procedure for rejecting the plaint on the ground that the suit was not maintainable as the plaintiff as a worker was defined in section 2(v) of the Employment of Labour (Standing Orders) Act, 1965 and, as such, his remedy was available in the Labour Court, created under a special law and, as such, the suit was barred by law. The plaintiff filed written objection, against that application. The trial Court after hearing both the sides by the order dated 15-5-1994 rejected that application filed by the defendant No. 3. Against that order the defendant No. 3 filed a revisional application in this Court, being Civil Revision No. 2800 of 1994, in which the Rule issued was ultimately made absolute in part directing the trial Court for giving the plaintiff a chance to amend the plaint in respect of the nature and character of the duties performed by him and to dispose of the application under Order VII, rule 11 of the Code of Civil Procedure at the time of the trial of the suit and to decide maintainability of the suit.
6. Accordingly, the plaintiff amended the plaint averring that he was in-charge of cash section of the Bank and used to supervise the work of that section; that there were two subordinate staffs under him in that section; that one of the two keys of the strong room of the Bank was kept with him; that he along with the Manager of the Bank jointly used to open the strong room; that the Manager of the branch used to grant leave to the staffs of the cash section on his recommendation and used to write ACR of the subordinate staffs of the Cash section in consultation with him; that he as an Officer Grade II used to get first class traveling allowance; that after recovery from the ailment he joined in Khulna Branch on 7-10-1990 and performed his duty. After such amendment of the plaint the contesting defendant No. 3 filed additional written statement denying the material allegations made in the amended plaint and contending that the plaintiff was never in charge of the Cash section and there was no subordinate staffs under him and that he had no managerial, administrative or supervisory power.
7. At the trial six PWs and three DWs were examined. Besides this, both sides adduced documentary evidence. The learned Senior Assistant Judge on consideration of the evidence on record decreed the suit with the finding that the plaintiff was not a worker as defined in section 2(v) of the Employment of Labour (Standing Orders) Act, 1965 and, as such, the suit was not barred under that Act and the order of his dismissal from service was passed in violation of the principle of natural justice as he was not given an opportunity of being heard and, as such, the dismissal order was illegal and without any lawful authority.
8. Against that judgment and decree the defendant No. 3 preferred appeal in the Court of the District Judge, Mymensingh, which was heard by the Subordinate Judge (now Joint District Judge), 1st Court, Mymensingh, who by the judgment and decree dated 9-11-1999 dismissed the appeal affirming those of the trial Court. Against that judgment and decree the defendant No. 3 petitioner moved this Court filing a revisional application under section 115(1) of the Code of Civil Procedure and obtained this Rule.
9. Mr. AQM Safiullah, the learned Advocate appearing on behalf of the petitioner, submits that the finding of the Courts below that the plaintiff-opposite party No. 1 was not a ‘Worker’ as defined in section 2(v) of the Employment of Labour (Standing Orders) Act, 1965 not being founded on legal evidence is perverse. There is no evidence that the plaintiff-opposite party No. 1 ever performed managerial, administrative or supervisory power. He further submits that mere designation is not sufficient to indicate whether a person is a worker or not. Nature of work performed is determining factor whether a person is a ‘worker’ or not. Since the plaintiff-opposite party No. 1 failed to prove that he exercised administrative, managerial or supervisory power in the Bank he must come within the definition of ‘worker’ under the Employment of Labour (Standing Orders) Act and, as such, his remedy was with the filing of a grievance petition under section 25 of Employment of Labour (Standing Orders) Act to the Labour Court. As remedy under the special law is available the suit is not maintainable and barred under section 9 of the Code of Civil Procedure. In support of his above submissions he refers the cases of Mujibur Rahman Sarkar vs. Chairman, Labour Court, Khulna and another, 31 DLR 301, Indo-Pakistan Corporation Ltd. vs. The Chairman, Labour Court and another, 21 DLR 265, Dosta Textile Mills Ltd. vs. Sudhansu Bikash Nath, 40 DLR (AD) 45 and Managing Director, Rupali Bank Limited and others vs. Tofazzal Hossain and others, 44 DLR (AD) 260. He further submits that the trial Court failed to appreciate the principle of law enunciated in the case of the Managing Director, Rupali Bank Limited vs. Md. Nazrul Islam Patwary and others 1995 BLD (AD) 169 and fell in error in holding that the suit was maintainable and not barred under section 9 of the Code of Civil Procedure.
10. Mr. Habibul Islam Bhuiyan, the learned Advocate appearing on behalf of the plaintiff-opposite party No. 1, submits that both the Courts below on consideration of the evidence on record came to the concurrent finding of facts that the petitioner was not a ‘Worker’ as defined in section 2(v) of the Employment of Labour (Standing Orders) Act, 1965. This Court in exercising revisional Jurisdiction under section 115(1) of the Code of Civil Procedure has no scope of interfering with such concurrent findings of fact of the Courts below. He adds that there was sufficient evidence that the plaintiff-opposite party No. 1 performed administrative, managerial and supervisory function. Therefore, the Court below rightly and legally held that he was not a ‘worker’.
11. Admittedly, the plaintiff-opposite party No. 1 was appointed as a cashier of the then Nationalised Uttara Bank. He worked in different branches of the Bank. In the meantime he was promoted in the rank of Officer Grade-II (Cash) and Uttara Bank was denationalised and became a private bank. While the plaintiff was posted in Mymensingh Branch of the Bank in the year 1989 by the letter dated 4-2-1990 he was transferred to the Khulna Branch of the Bank and on 7-3-1990 he was released from the Mymensingh Branch for joining in his new place of posting; but he did not join there. Thus, he remained absent from duty for long without leave. At this a proceeding was drawn against him wherein charge was framed for negligence of duty, misconduct and insubordination, asking him to show cause within 7(seven) days as to why disciplinary action would not be taken against him, which was communicated to him. He filed a written statement. An enquiry committee was formed for holding enquiry on the charge levelled against him and to submit report on enquiry. The Enquiry Committee asked him to appear before it, but he did not appear and, as such, the Committee holding enquiry in his absence submitted a report finding him guilty of the charge levelled against him. Then the second show cause notice was also served upon him asking him to show cause as to why punishment of dismissal from service would not be imposed on him. He gave a reply of that second show cause notice, but the Bank authority not being satisfied dismissed him from the service. Thus, the finding of the Court below that the order of dismissal of the plaintiff from service was passed in violation of the principle of natural justice and therefore, void is perverse.
12. In the case of Indo-Pakistan Corporation Ltd. vs. Chairman and another 21 DLR 285 it is held, “The Exceptions to the definition of the word ‘worker’ as given in the exception 2 of clause (v) of section 2 of the East Pakistan Employment of Labour (Standing Orders) Act clearly indicate that if a person who is mainly employed in a managerial or administrative capacity exercises functions mainly of managerial or administrative nature then and then only a worker shall be taken out of the purview of the definition of worker. In the present case, respondent Hari Bandhu Sarker’s job was to maintain accounts in the head office whereby he was in the position of a worker and it was only by way of exception that he was made by the authority to sign cheque jointly with the manager. Mere signing of cheques jointly with manager did not take Hari Bandhu Sarkar out of the category of a worker within the meaning of section 2, clause (v), Exception 2 of the Act.”
13. In the case of Mujibur Rahman Sarkar vs. Chairman, Labour Court Khulna and another 31 DLR 301 it was held, “Therefore, what is important in determining whether a persons is a ‘worker’ or not is to see the main nature of the job done by him and not so much his designation. Of necessity, the point has to be resolved in each case with reference to the evidence on record. Thus, in the ultimate analysis it becomes a matter of appreciation of evidence. A person does not cease to be a ‘worker’ merely because he is employed in a supervisory capacity. To be able to say that he is not a worker it has to be established further that he exercises functions mainly of a managerial or administrative nature.”
14. In the case of Managing Director, Rupali Bank Limited and others vs. Tafazzal Hossain and others, 44 DLR (AD) 260 it was held. “He is, on his own pleading in the plaint of his suit, an Assistant Cashier of the Rupali Bank. As such, he clearly falls within the definition of ‘worker’ under the Employment of Labour (Standing Orders) Act, 1965, briefly, the Standing Orders Act, as well as under the Industrial Relations Ordinance, 1969. Under section 2(v) of the Standing Orders Act, ‘worker’ means any person employed in any shop, commercial of industrial establishment to do any skilled, unskilled or clerical work, but does not include any person who is employed mainly in a managerial or administrative capacity, Under section 2(h) of this Act, any person employed in such an establishment to do ‘managerial or administrative’ functions falls into the class called ’employer.’ In the corresponding provision of the Industrial Relations Ordinance, 1969, worker/ workman has been defined in almost same terms. An individual work seeking redress of any grievance, such as redress against his removal or termination, may file a complaint to the Labour Court constituted under section 35 of the Industrial Relations Ordinance. Similarly, a worker/ workman may file an application to the Labour Court seeking enforcement of any right secured to him by law, award or settlement. The Labour Court is the only forum for a worker/workman to seek remedy against grievances relating to his employment. In the instant case of the respondent, who felt aggrieved by his termination, remedy lay before the Labour Court under section 25(1) or the Standing Orders Act.”
15. It is further held in the same case that “A Labour Law, such as the Employment of Labour (Standing Orders) Act, or the Industrial Relations Ordinance, is a special law vis-a-vis the Code of Civil Procedure which is a general law. The latter affects the community at large; all people of the state are governed by it. While the former relates to and affects particular persons or things; it operates upon a selected class, rather than the public generally. Relation between a general law and a special law is by the principle known as Generalia specialibus non derogant which, in English, means ‘general words do not derogate from the special.” In other words, if any legal remedy is ordinarily available under both general law and special law the remedy prescribed by the special law must be sought to the exclusion of the remedy otherwise available under the general law.”
16. In the above case, it was held, that the respondent, admittedly a ‘worker’, filed the suit challenging the legality of termination from the service before the civil Court whose jurisdiction to entertain the suit was ousted by necessary implication and when the Labour Court was there his remedy lay before that Court only.
17. The plaintiff of the present suit as PW 1 stated that he used to work in the Cash section of the Bank. Every morning he along with Manager of the Bank used to open the vault of the Bank and used to hand over the cash and cash register to the Cashier. He at the end of the office hours verifying the cash with the register and putting his signature in the Cash Book would place the same to the Manager and then he and the Manager jointly would keep the cash and cash book in the strong room. There was an Assistant Cashier, Peon and a Guard under him in the cash section, whose works he used to supervise. The Manager used to grant leave to those staffs on his recommendation and used to write their ACR in consultation with him. He further said, in cross-examination, that he was not the Manager, but was an employee under the Manager. He used to obey the order and directions of the Manager. At the end of banking hours each day the cash would have been handed over to him. He could not allow leave to any employee, but he would recommend leave for the employees of the Cash section. He did not know whether there was any provision of taking recommendation in granting leave. He had no power to write ACR of any staff. The Manager in writing ACR of the staffs of the Cash section used to take his opinion. The managerial and administrative power was laid on the Manager. PW 2 stated that all the employees of a branch of the Bank were under the Manager.
18. Mere designation of the plaintiff as Officer Grade II (Cash) is not sufficient to indicate that he was not a ‘worker’. It is the nature of his work knowing the extent of his authority which determines whether he is a worker or not. Even if it is accepted that he was employed in a supervisory capacity it will not bring him into the category of ’employer’ unless he functioned mainly managerial and administrative in nature. In this regard reliance is being placed on the case of Dosta Textile Mills Ltd., Ranirhat, Feni and others vs Sudhansu Bikash Nath 40 DLR (AD) 45. Thus it can rightly be held that the plaintiff was a ‘worker’ as defined in section 2(v) of the Employment of Labour (Standing Orders) Act and, as such, his remedy against his dismissal order was with the filing of a grievance petition under section 25 of that Act to the Labour Court and the present suit is not maintainable and barred under section 9 of the Code of Civil Procedure.
19. Moreover, Uttara Bank Limited is a private bank. It is not a statutory financial institution or corporation. It is not a creation of any statute. Therefore, the service of the plaintiff in this bank was guided by principle of master and servant Section 42 of the Specific Relief Act provides that any person entitled to any legal character, or to any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court in its discretion may make therein a declaration that he is so entitled. As the terms and conditions of the service of the plaintiff are not regulated by any legal instrument he has no legal character and, as such, the declaration he sought for does not attract section 42 of the Specific Relief Act Therefore, the suit is not maintainable. In this regard reliance is being placed on the case of Eastern Mercantile Bank Ltd. vs. Mohammad Shamsuddin 21 DLR (SC) 365.
20. On the above reasons it is held that the impugned judgment and decree is not sustainable and are liable to be set aside.
21. In the result, the Rule is made absolute without any order as to the costs. The impugned judgment and decree dated 9-11-1999 passed by the Subordinate Judge (now Joint District Judge) 1st Court, Mymensingh, in Other Appeal No. 126 of 1999 affirming the judgment and decree dated 16-31999 passed by the Senior Assistant Judge, Gafargaon, Mymensingh in Other Suit No. 53 of 1994 decreeing the suit is hereby set aside and the suit is dismissed without any order as to the cost.
Send down the lower Court’s records at once with a copy of this judgment for information and taking necessary action.
Ed.
Source: 59 DLR (2007) 166