Interpretation of Statute

(Minority View)

(a) Whether A.P.O. No. 1 of 1972 stood repealed by necessary implication doubt about the validity of A.P.O. No. 1 of 1972. With the coming into effect of  P.O. No. 16 of 1972 theory of repeal by necessary implication was rejected A.P.O. No. 1 of 1972 Is found to be a continuing law.

Shahabuddin Ahmed, C.J. holding the minority view.

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. 1 BLT (AD)-1

 

(b) All industrial enterprises placed under a corporation by or by an order under Clause (1) of Article 10 and all sharers and proprietary and other interests not vested in the government by or under any law for the time being force shall by virtue of this article and without any further processing or formality stand vested in or allotted to the government free of any trust, mortgage charge, lien, interest or other encumbrance whatsoever. [Para- 11]

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. 1 BLT (AD)-1

(c) High Court Division view that a property which is not an abandoned one cannot be placed under the corporation is an erroneous one-placement of the Dhaka Steel Works Ltd. and others under P.O. No. 2 of 1972 is valid.

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. JBLT (AD)-1

(d) The vestment of Dhaka Steel Works Ltd. & others under Articles 4(a) and Article- 10(1A) of P.O. No.27 of 1972 is valid and this vestment cannot be challenged in any court of law. [Para- 12]

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. IBLT (AD)-1

(d-a) High Court Divisions view relating to the release of property is wrong and its direction is illegal. [Paras- 13 & 15]

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. JBLT (AD)-1

(e) Writ Petition Fails —Appeals Allowed

As to the likely remedy available to the respondents, since I have found that the order of placement of the enterprise under the corporation is valid, the government may, “if in the national interest it deems is expedient so to do’ transfer it to the respondents under Art. 4(2) of P.O. No. 27 of 1972. In view of the fact that three allied commercial concerns of the respondents have been released under the Court’s order this case deserves favourable consideration. So far as the Writ Petition is concerned, it must fail; the impugned judgment of the High Court Division is set aside and both the appeals are allowed, without any order as to costs. [Para-16]

Bangladesh Vs. MIS. Dha.ka Steel Works LLL & Ors. 1BLT (AD)-1

Majority View

Mustafa Kamal, J. delivering the majority judgment. (A.T.M. Afzal, J. and Latifur Rahman, J. concurring with him).

(1) The company Dhaka Steel Works Ltd. was an abandoned property and the placement took place in exercise of the general power of vesting according to the minority view but it was held by the majority view that the property is not an abandoned one and its placement under the corporation was illegal. [Paras – 78 & 81]

(1978) 30 DLR (AD) 169 dissented from. Bangladesh Vs. MI1S. Dhaka Steel Works Ltd. & Ors. 1 BLT (AD)-l

 

President’s Order No. 27 of 1972

Bangladesh Industrial Enterprises (Nationalisation) Order, 1972

 

Article- 10(a)(d)

Article 10(1)(d) of P.O. No. 27 of 1972, as amended up-to-date. Stands as follows:

‘10(1) on the commencement of this order, there shall be established the following corporations:-

(d) (i) Bangladesh Steel and Engineering Corporation, (ii) Bangladesh Chemical Industries Corporation, each of which shall have and exercise the powers of a Corporation under this order in respect of such industrial enterprises. including enterprises owned wholly or partly by the government under the Bangladesh Abandoned Property (Control, Management and Disposal) managed by any statutory corporation, as the Government may, by order published in the official Gazette place under it.”

It may be mentioned that this Article was wrongly quoted in 3O DLR (SC) 169 at page- 187. [Para-69]

Bangladesh Vs. M/S. Dhaka Steel Works Ltd. & Ors. 1 BLT (AD)-1

 

Article- 10(1) (d) could not be applied to the company and its placement under the corporation was illegal. [Para-81]

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. 1 BLT (AD)-1.

 

Articles-4(a) and 1O(1A) of P.O. No. 27 of 1972

 Interpretation of Statute

Vesting is a consequence of placing—if placing is unlawful, vesting is illegal- Double protection-Meaning of—If cause is removed no single protection is left

With regard to Article-4(1), as introduced by Ordinance No. XXV of 1976, there is a fresh vesting without any further proceeding or formality. But this vesting is also very much dependent upon the lawful placing of an industrial enterprise under a Corporation. Vesting is a consequence of placing. Placing is the cause, vesting is the consequence. If placing goes, vesting also falls through. So whether it is Article 10( 1A) or Article 4(a), the result Is the same. If there is a lawful placing, vesting takes place under Article 10(1A) and a double vesting takes place under Article-4(1). But if the placing itself was unlawful, the vesting did not take place, either under Article- 10( 1A) or under Article-4(1). The consequence may have a double protection, but if the cause is removed, no single protection is left. [Para-83]

Bangladesh Vs. MIS. Dhaka Steel Works Ltd. & Ors. 1 BLT (AD)-1.

 

BANGLADESH INDUSTRIAL ENTERPRISES
(NATIONALISATION) ORDER (P.O. 27 OF 1972)

 

Articles—4,
5, 6, 7, 8 and 10

The
law of master and servant will not apply to the employees of a nationalized
company which has lost its corporate character— Such employees will be treated
as employees of the corporation and can invoke the writ
jurisdiction—Constitution of Bangladesh, 1972, Article 102.

A
company or enterprise which is a public enterprise or nationalized enterprise
retains its corporate character if it is allowed by the Corporation established
under P.O. 27 of 1972 to manage its affairs according to its Memorandum and
Articles of Association or agreement or deed under which it was originally
created.

Mosharraf
Hossain Chowdhury Vs. General Manager, Titas Gas Transmission and Distribution
Co. Ltd. and another and A.K.M. Ayub Ali Vs. Eastern Refinery Ltd. and others;
1 BLD (AD) 61.

 

Article—16

An
employee of a statutory corporation is a state employee—Constitution of
Bangladesh, 1972, Article 152(1).

Articles—16,
24 and 25

An
employee of a statutory corporation cannot be dismissed for violation of
internal discipline in the absence of rules and regulations categorizing
various internal domestic offences for which relative departmental punishment
could be inflicted.

Md. Hazrat
Ali Vs. Chairman, Bangladesh Chemical Industries Corporation and another; 1 BLD
(HCD) 86.

 

Article—23(1)

Winding
up of a nationalized company— Courts ceased to possess any power of winding up of
such company and pending proceedings for winding up of such company abated.

Article—23(3)

Whether
leave of the Court is necessary to file a suit against a nationalised company
under liquidation—Courts are denuded of all powers relating to winding up of scheduled
industrial enterprises and they are forbidden to apply any provision of the
Companies Act relating to winding up of companies—No leave is necessary under
section 171 of the Companies Act, 1913 to proceed with or commence against the
Dhakeswari Cotton Mills Ltd. any suit or other legal proceeding—Companies Act
(VII of 1913) Section—171.

Abdul Hamid
Vs. Dhakeswari Cotton Mills Ltd.; 4 BLD (HCD) 54.

 

Article—5(a)

Service
matter—Whether
an employee of a Mill after transfer to the corporation under which it has been
placed ceased to be an employee of the Mill or is an employee of the
Corporation—Jute Mills, after nationalisation, were placed under the
controlling power of the appellant Corporation—The letter of termination and
other reference to the Mill where the respondent is to go are sufficient to
indicate that he did not cease to be an employee of the Savar Jute Mills which
is merely a unit of the Corporation—The intendment of the parties seem to be
clear that the respondent did not acquire the status of an employee of the
Corporation.

Whether
the Corporation can terminate the service of an employee of a Mill placed under
the Corporation—In view of the notification dated 20.9.1975 empowering the
Chairman of a Corporation to terminate service of an employee of the enterprise
or mill under the Corporation and also to delegate such power the Corporation
can terminate the service of an employee of a Mill placed under it—Power of
control, suspension and regulation includes the power of termination.

Bangladesh
Jute Mills Corporation vs. Golam Moula Ahsan Chowdhury; 5 BLD (AD) 187.

Ref.
33 DLR 326, 33 DLR 438.

 

Articles—4
to 7 and 17

Master and
servant relationship— Whether an employee of a company under the control and
management of the Corporation is to be guided by the principle of master and
servant relationship—Notwithstanding the fact that under P.O. 27 of 1972 the
Company was brought within the ambit of the Corporation that does not mean that
the company became extinct nor for that matter it could be argued that the
proceeding should not be initiated by the company itself—It was a company and
the relationship between the parties was that of employee and employer.

Mobarakganj
Sugar Mills Ltd. Vs. A.B.M. Kazi Nazrul Islam, 7 BLD (AD) 182.

 

Articles—4
and 24

Whether
the notice dated 27.9.82 published in the Dhaka Gazette entitled the share
holders holding less than 30% of the shares to acquire controlling shares of
the Jute and Textile Mills that notice is a notice offering to the Bangladeshi
Share-holders the industrial enterprises mentioned in the schedule to the said
notice, to transfer share to them in terms and conditions stated in the
notice—That notice is neither a rule nor a notification framed by the
Government under Article 4(2), 4(3) or under Article 24 of the P.O. 27 of 1972
although the approval of the President has been taken before issuing the
notice—Similarly the ‘memo’ dated 12.12.82, amending the terms and conditions
of the notice dated 27.9.82 cannot be equated with the rules which may be framed
under Article 24 or a notification as contemplated under Article 24 or a
notification as contemplated under Article 4(3) of P.O. 27 of 1972, having the
force of Law— The provisions of Article 4 have enabled the Government to
transfer or dispose of the Industrial Enterprises or shares there of—In
pursuance of the powers of the Government under Article 4 to transfer the
nationalised enterprises or its shares, the Government has issued the aforesaid
notice dated 27.9.82—It does not have the force of law creating a legal right
of the petitioners to obtain transfer of the controlling shares.

Article—4

Whether
the Bangladeshi share-holders holding less than 30% of the shares are entitled
to get return of their shares—In terms of the notice dated 27.9.82 or the
‘memo’ amending the terms and conditions of the notice the Government is
obliged to offer to the share holders such number of shares as were held by
them on the date of nationalisation— The above notice or ‘memo’ has no force of
and the steps to be taken by the Government to transfer the shares or disinvest
the shares of the nationalised enterprises or industrial enterprises are
administrative process—This administrative jurisdiction of the Movement shall
have to be exercised fairly and reasonably and not arbitrarily.

Mian Abdur
Rashid and others Vs. The Government of the People’s Republic of Bangladesh and
others; 7 BLD (HCD) 46.

 

Articles—4,
10 and 17

An
enterprise placed under a Corpora: n—Whether this destroys its separate entity
and corporate character—Placement of an industrial Unit or enterprise under the
control and supervision of a corporation does not necessarily destroy its
corporate character but a retains its character as a separate entity— Hence,
the previous relationship between the company, enterprise and its employees
continues as before.

Senior
Manager, Messrs Dost Textile Mills Ltd. and another Vs. Sudhansu Bikash Nath; 8
BLD (AD) 66.

Ref.
31 DLR (AD) 234; 36DLR (AD) 282; 1 BLD (AD) 61.

 

Article—17(1)

Transfer
of employee—Whether Bangladesh Jute Mills Corporation has got the power to
transfer an employee from one Jute Mill to another—Power of control,
supervision and regulation necessarily includes the power of transfer—The
Government may, in respect of any scheduled industrial enterprise, placed under
a corporation, take such measures as it deems necessary for efficient running
of such enterprise—In view of the Gazette Notification and the corporation’s
powers to take disciplinary action including power : transfer now stand beyond
question.

Nishat Jute
Mills Ltd. Vs. Md. Sanaullah; 8BLDI (AD) 212

Ref.
5 BLD (AD) 1 87; 3 1DLR (AD) 234 33 DLR (AD) 321.