Appellate Division Case
(Civil)
PARTIES
Bangladesh Gas Fields Co.Ltd …………………….Appellant (In both the appeals)
-Vs-
Md. Fariduddin Ahmed and ors………….. Respondents (InC.A.No. 196/00)
Md. Osman Gani and ors……………… Respondents (InC.A.No.197/00)
JUSTICES
Md. Ruhul Amin J
M.M.Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 16th January 2007
The meaning of Public Servants Retirement Act 1974 (Act XII of 1974)
Bangladesh Oil, Gas and Mineral Corporation Ordinance, 1985
The Above Act 1974, Section 4
The Companies Act 1913
Retiring the respondent No.l in both the appeals from their services on completion of their 57th years of age ……………………..(1)
Although there was no age limit for retirement in the Public Corporations (Management Co-ordination) Ordinance 1986, but by the Public Corporation (Management Co-ordination) (Amendment) Act, 1994, new definition clause viz 2(e) was inserted in the above Ordinance of 1986 providing that 2(e) “worker” means any person, skilled or unskilled, who works for hire or rewards, but does not include a person who is employed in any managerial, administrative, supervisory or solely clerical capacity” ……………………(2)
Regarding maintainable of the writ petition as it appears though the appellant is a limited liability company incorporated under the Companies Act 1913 but it is an enterprise of the respondent No.4 shown at item No.22 of the schedule of Ordinance 86 as amended and further in terms of the Articles of Association of the appellant, the respondent No.4 has the absolute control over the appellant in all matters and any director of the appellant may be appointed and/or removed at the option of the respondent No.4/Government and any vacancy in the office of directors of the appellant shall be filled upon by the nominees of the respondent No.4/ Government and in view of these special features writ petition is maintainable ……………….(10)
Considering the above situation we are of the view that the High Court Division did not commit any error in discharging the Rule……………….. (11)
Accordingly both the appeals are dismissed with costs…………. (12)
Shaheed Alam, Senior Advocate, instructed bv Mvi. Md. Wahidullah, Advocate-on-Record ………………………For the Appellants. (In both the appeals)
Md. Asaduzzaman, Advocate,instructed by AKM Shahidul Huq, Advocate-on-Record …………………………..For Respondent No.l (In both the appeals) Respondent Nos. 2-4 (In both the appeals) …………………..Not represented.Civil Appeal Nos. 196-97 of 2000 (From the judgment and order dated 13.7.1999 passed by the High Court Division in Writ Petition Nos. 2822 and 3869 of 1997).
JUDGMENT
Md. Tafazzul Islam J: Civil Appeal No. 196 of 2000, by leave, arose out of the judgment and order dated 13.7.1999 of the High Court Division passed in Writ Petition No.2822 of 1997 and Civil Appeal No. 197 of 2000, by leave, arose out of the judgment and order dated 13.7.1997 of the High Court Division passed in Writ Petition No. 3869 of 1997 and in both the writ petitions the High Court Division made absolute the Rules obtained against the memos dated 16.3.1997 and 2.4.1997 respectively retiring the respondent No.l in both the appeals from their services on completion of their 57th years of age.
2. The respondent No.l in Civil Appeal No. 196 of 2000 filed Writ Petition No. 2822 of 1997 stating that on 10.3.1982 he was employed as a worker holding the post of plant attendant in Bakhrabad Gas Field at Muradnagar, which is run by the appellant, an enterprise of the respondent No.4 constituted under the Bangladesh Oil, Gas and Mineral Corporation Ordinance. 1985, and after eompletion of the probation period he was confirmed in his service vide letter dated 22.6.1982; although there was no age limit for retirement in the Public Corporations (Management Co-ordination) Ordinance 1986, but by the Public Corporation (Management Co-ordination) (Amendment) Act, 1994, new definition clause viz 2(e) was inserted in the above Ordinance of 1986 providing that 2(e) “worker” means any person, skilled or unskilled, who works for hire or rewards, but does not include a person who is employed in any managerial, administrative, supervisory or solely clerical capacity” and a new section viz, section 14A was also inserted in Ordinance 1986 providing that worker of an enterprise shall, notwithstanding anything contained in the terms and conditions of his employment in any contract, rule, regulation, bye-law or other instrument, retire from employment on the completion of his 60th year; the provisions of the above Ordinance 86 and the amending Act 1994 are applicable to the establishments shown in the schedule of Ordinance 1986 wherein the respondent
No.4 has been shown at serial No.22 and accordingly the appellant, an enterprise of the respondent No.4, a scheduled establishment, is to follow the provisions of the said Ordinance of 86 and all subsequent amendments including amending Act 1994 but inspite of that the appellants illegally did not allow the respondent No. 1 to remain in service after completion of his 57th year.
3. The respondent No.l in Civil Appeal No. 197 of 2000 filed Writ Petition No. 3869 of 2000 on more or less similar averments except that he was appointed on 2.2.1994 as cook and was confirmed on 3.5.1984 and by memo dated 2.4.97 he was retired from his service with effect from 30.6.1997 on competition of his 57th year.
4. The appellant opposed both the Rules by filling affidavit-in-opposition contending that the respondent No.l in Civil Appeal No. 196 of 2000, in terms of his letter of appointment, was to retire on completion of his 57th year and likewise the respondent No.l in Civil Appeal No. 197 of 2000 in terms of his letter of appointment was also to retire on completion of his 57th year and furthermore the respondent No.l in Civil Appeal No. 196 of 2000 and the respondent No.l in Civil Appeal No. 197 of 2000 being employed in the post of plant attendant and cook respectively, are “public servants” within the meaning of Public Servants Retirement Act 1974 (Act XII of 1974) and not in the category of “worker” within the meaning of section 2(e) of Ordinance 86 as amended and both of them are also not connected with any production activities and so the appellant issued notice of retirement upon them on their completion of 57th year in terms of the provisions oi’ section 4 of the above Act. 1974 read with Clause 7 of their appointment letters and moreover the appellant, being a limited liability company under the Companies Act 1913 and being neither a local authority nor a person performing function of the Republic, the writ petitions are not at all maintainable.
5. The High Court Division, after hearing, made the Rules absolute holding that the respective respondent No.l in both the appeals, being workers under the Ordinance 86 as amended, could be retired only on completion of 60th years of age.
6. Leave was granted on the submissions that the appellants being a limited liability company incorporated under the Companies Act 1913, the writ petitions filed under Article 102 of the Constitution of the People’s Republic of Bangladesh are not maintainable and the writ petitioners do not come within the definition of public servant as contemplated under Article 102 of the Constitution and as such j the writ petitions arc not maintainable.
7. The learned counsel for the appellants submitted that the High Court Division fell in error in not considering that the respective respondent No.l in both the appeals having been employed as plant attendant and cook respectively, they can not be said to be workers within the meaning of section 2(e) of Ordinance, as amended, and further they having accepted their retirement age as 57 years as contained in clause 7 of their appointment letters and moreover they, being “public servant” within the meaning of Act, 1974, their retirement age is 57 years in terms of section 4 of the said Act of 74 and the
High Court Division committed error in holding that their retirement age is 60 years and the High Court Division also failed to consider that the appellant is a limited liability company incorporated under the Companies Act 1913 and is neither a local authority nor a person performing the functions of the Republic and in the case of the respondent No.l of Civil Appeal No. 196 of 2000 the High Court Division also held that his job description does not show that his job is of supervisory in nature and the writ petitioners also do not come within the definition of “public sen ant” as contemplated under Article 102(2) of the Constitution and as such the writ petitions are not maintainable.
8. The learned counsel for the respective respondent No.l in both the appeals submitted that the respondent No. 1 of both the appeals clearly fall within the definition of “worker” as shown in section 2(e) of Ordinance of 86 as amended and so they could be retired only on their attaining 60th years of age and the appellant passed the orders of their retirement in flagrant violation sections 2(e) and 14A of Ordinance of 1986 as amended as the appellant, an enterprise of the respondent No.4 shown at item 22 of the schedule of Ordinance of 86 as amended, is to follow the provisions of the said Ordinance of 86 as amended and further they being workers, the provisions of Act, 1974 have no manner of application in their cases. The learned counsel further submits that the appellant, an enterprise of the respondent No.4 as shown at item 22 of the schedule of Ordinance of 86 as amended, is practically run by the respondent No.4 and so the writ petition is maintainable.
9. As it appears the High Court Division in Writ Petition No. 2822 of 1997 made the
Rule absolute holding that the contents oi’ the job description of the respondent No.l
in Civil Appeal No. 197 of 2000 as shown in his affidavit-in-reply do not depict that
his functions are of supervisory nature and therein it has been specifically mentioned
that any job assigned to him is to be done by him personally by his own hands and
as such his functions answer the description of “worker” as described in section 2(e) of the Ordinance of 86 as amended. In Writ Petition No. 2869 of 1997 the High Court Division made the Rule absolute holding that from the nature of job performed by the writ petitioner it appeared that he comes within the ambit of section 2(e) of the Ordinance of 86 as amended and as such he has to retire on completion of 60th year by virtue of the provisions of section 14A of the said Ordinance of 86 and the above section 14A is applicable to all workers notwithstanding anything contained in the terms and conditions of their appointments and as such Form No.8 of the appointment letter, as evidenced by Annexurc-A 1 to the petition, has no legal bearing and the same lost its force in view of the provisions of section 14A of the said Ordinance and section 14A shall prevail over the terms and conditions of appointment letter of the writ petitioner and as such the writ petitioner is entitled to serve upto the age 60th years.
10. Regarding maintainable of the writ petition as it appears though the appellant is a limited liability company incorporated under the Companies Act 1913 but it is an enterprise of the respondent No.4 shown at item No.22 of the schedule of Ordinance 86 as amended and further in terms of the Articles of Association of the appellant, the respondent No.4 has the absolute control over the appellant in all matters and any director of the appellant may be appointed and/or removed at the option of the respondent No.4/Government and any vacancy in the office of directors of the appellant shall be filled upon by the nominees of the respondent No.4/ Government and in view of these special features writ petition is maintainable.
11. Considering the above situation we are . of the view that the High Court Division did not commit any error in discharging the Rule.
12. Accordingly both the appeals are dismissed with costs.
Source : V ADC (2008), 324