Appellate Division cases
Chief Engineer Dredger directorate, Bangladesh Water Dev. Board. N.arayangonj and others… …………………………………..……………………Appellants
Chairman, 2nd Labour Court and others…………… Respondents
Md. Ruhul Amin J
Syed J. R. Mudasser Husain J
Abu Sayeed Ahammed J
Date of Judgment
13th May 2002 (in both Appeals )
The Industrial Relations Ordinance, 1969 Section 34.
The General Clauses Act. Section 21.
In the scale o TK. 325-610. Against the respondent The Industrial Relations Ordinance, 1969 Section 34.
Pay scale once granted by one authority could be taken by the higher authority on the basis of enquiry report as well as under the provision of section 21 of the General Clauses Act (9)
The respondents having acquired a right to the higher scale of Pay it can not be allowed to be taken away without issuing a show cause (16)
A. K. M. Abdul Hakim Advocate, instructed by Md. Aftab Hossain. Advocate – on – Record For the Appellants ( in C.A. No. 99/1998) B. Hossain, advocate -on -Record For the Appellants ( in C.A. No. 100/1998).Md. Nowab AH, Advocate – on- Record For Respondent No. 2 ( in C. A. No. 99/1998)
Ex- parte Respondent No. 1. (in C. A. No 99/1998) Md. Nowab AH, Advocate – on -Record for Respondent nos. 2 &3 ( in C.A. No. 100/1998) Ex -parte Respondent No. I
( in C.A.N0 .100/1998)
1. Syed J. R. Mudassir Husain J :- In these 2 (two ) appeals, the appellants are same the respondents are different but for a common question being involved as to whether the respondent of both the appeal are entitled to get scale of Tk.470-1135 and as such these two appeals are heard together and are disposed by this single judgment
2. The Civil Appeal No. 99 of 1998 arises out of leave granted in Civil Petition 488 Bangladesh vs Chairman, 2nd Labour Court (Syed J. R. Mudassir Husain J) HI ADC (2006) No. 268 of 1988 from the judgment and order dated October 27th, 1997 Passed by the High court division in writ petition No. 26 of 1994 discharging the rule and affirming the order dated 29-9-1994 passed in Industrial Relations Case No. 59 (ka) of 1989 by the Labour Court. Dhaka ( respondent NO. 1) allowing the application of Md. Fazlul Hoque ( respondent No.2) under section 34 of the industrial Relations Ordinance 1969 directing the appellants to grant pay scale of Tk. 470-1135 to the said respondent from 1-6-1982.
3. The Civil Appeal No. 100 of 1998 arise out of leave granted in Civil Petition No. 532 of 1996 for leave to appeal preferred from the judgment of the High Court division Passed on July 10th, 1996 in writ petition No. 3370 of 1992 modifying the judgment and order dated 25-08-1992 passed in Industrial Relations Case no. 44 of 1987 by the 3rd Labour Court, Dhaka (respondent No. 1) directing the appellants to allow pay scale of Tk. 470-1135 to sultan Ahamed (respondent No.2 ) with effect from 20-09-1982and to Korshed Alam ( respondent no.3 ) from 20-10-1982 thereby the High Court Division made the Rule absolute in part the said writ petition.
4. In Civil Appeal No. respondent No.2 )brought I. R.O. Case no. 59 (ka) of 1989 efore the 2nd Labour court, Dhaka on the averments made inter alia that he had been working as Laskor in the Bheramara Dredger Division, Bangladesh water Development Boar, he was later on promoted to the post of tug Master in the pay scale of Tk. 220-420 he was thereafter given national pay scale of Tk. 325-610 as per Government circular dated 1-1-198 Lit was further stated that Single Master plying B – Type vessel in 3(three) shifts was entitled to get the scale of Tk. 470-1135. Since the respondent no. 2 was plying B- Type vessel in 3 (three) shifts he was entitled to get the above scale of pay that after examining his service record the Deputy Director (Accounts) Dredger directorate Bangladesh water Development Board, Dhaka (appellant No.-5 )allowed him the said pay scale with errors, that subsequently the respondent No. 2 came to know that his aforesaid pay scale has been cancelled by order dated 9-4-1986 passed by the Chief Engineer (appellant No.l ) with a direction to pay the respondent ( in the scale of Tk. 325-610Aginst the Respondent no. 2) filed the above I.R.O. case under section 34 of the Industrial Relations ordinance, 1969. The appellants as second party contested the said case by filing written statement contending inter alia that the respondent No. 2 was not entitled to pay scale of Tk. 470- 1135 without obtaining a second class mastership certificate, that the respondent No. 2 with the help of interested persons some how managed certain in his service book showing that he was plying a B- Type vessel and got the pay scale of Tk.470-1135.In order to ascertain the above facts an Inquire Committee was formed which detected the wrong doing of the said respondent no. 2 and accordingly the respondents higher pay scale was cancelled and he was given the pay scale of Tk. 325,610 that it was also stated by the appellants that the despondent n. 2 had been plying Tug No 4 for carrying materials as per approved set up of the Dredger Division , that the is no post of master of B- Type Vessel. That the respondent no. 2 is not entitled to get the sale of Tk.470-1135 with Ill ADC (2006) Bangladesh vs Chairman, 2nd Labour Court (Syed J. R. Mudassir Husain J) 489 out obtaining second class mastership certificate as per Finance Ministry’s circular i dated 01-01-1981. since the respondent ^ No.2 being holder of third class certificate at that time the question granting him scale of Tk.470-1135 does not arise. It was also stated that the Labour Court has nothing to do in respect of higher pay scale.
5. The Labour Court allowed the application of respondent No.2 by the judgment and order dated 20-09-1994 against which the appellants filed Writ Petition No.2126 -+. of 1994 before the High Court Division obtained Rule and stay and upon hearing the learned Judges of the Court Division discharged the Rule declaring that the respondent No.2 is entitled to pay scale of Tk.470-1135 from 1-6-1982. Hence this appeal.
6. The learned Counsel, Mr. A. K. M. Abdul Hakim, appearing for the appellants argued that the High Court Division having itself found that the respondent No.2 was v not a second class mastership certificate holder and he was not entitled to get the scale of Tk. 470-1135 and that interpretation given to the office memorandum dated 1-1-1981 was erroneous which to a wrong decision as arrived at by the High Court Division and the same is liable to be set aside. It is further argued that the illegal benefit of the scale of Tk.470-1135 which was allowed to the respondent No.2 was cancelled by the competent authority after obtaining a report from an Enquiry Committee and as such there was na illegal’ ity in the cancellation of rong entry made in the service book of the said respondent no. 2 and the High Court Division having failed to appreciate he finding of the enquiry report held wrongly that a legal right had accrued to the respondent no. 2 could not be taken away by ignoring the fact that the higher pay scale was found to have been obtained by illegal and collusive practice .
7. It has been lastly argued by the appellants hat section 21 of the General Clauses A. T. authorizes a authority to make an order and it also autorises power to cancel the same.
8. Md. Nowab Ali, the learned Advocate – on – record appearing for the respondent No. 2 has, on he other hand argued that the Labour Court having considered the said memorandum dated 1-11981 that a Single Master plying B- Type vessel in 3(three) shifts passed the order that he was entitled to get the sale of Tk. 470-1135. His argument is that the respondent No.2 having plied B-Type vessel in 3 (three) shifts acquired right and was entitled to get the above scale. He further argued that the authorty having examined his service book allowed the respondent No.2 the said pay scale with arrears and the High Court Division legally concurred with the the Rule in Writ Petition No.2126 of 1994.
8. Upon hearing the parties, the Labour Court allowed the case of respondent Nos. 2 & 3 by judgment and order dated 25-08-1992. Against which the appellants moved the High Court Division which after hearing made the Rule absolute in part with the modification of the direction passed in Writ Petition No.3370 of 1992 by a Division Bench. Hence this appeal.
09. Mr. B Hossain, the learned Advocate on Record, appearing for the appellants contended that the respondent Nos. 2 & 3 while in service under the appellants as Tug Master obtained second class mastership certificate on 20-9-1982 but the use to plying Tug Boat No.6 and M. L. Lila which did not fall within the category of B-Type vessel as per marine law and for which they were/are not entitled to the pay scale of Tk.470-1135and the High Court Division erred in law in making the Rule absolute with modification of the direction to allow the above pay scale to the respondents from date of their obtaining second class mastership certificate.
10. It is further contended that the respondent Nos.2 and 3 managed the entries ( master B-Type vessel dated 1-8-1978) in their service books through different ink and hand with a ulterior motive to get the pay scale of Tk. 470-1135 and ultimately hey got the benefit with errears through ones right of the appellants and when such false entries were detected upon an enquiry bad report the higher scale of pay of the respondents was cancelled by the competent authority but the High court Division wrongly held relying on a decision that the benefit once granted can not be taken away Mr. B. Hossain, therefore, argued that there was no illegality in canceling the wrong entry in the service books followed by illegal benefit. The High court Division wrongly made the rule absolute in part relying on such questionable benefit . Hussain further argued that qualification and obtaining second class mastership certificate by the respondents do not entitle them to the benefit of pay sale of Tk. 470-1135 unless they are promoted and transferred to B-Type vessel and in such view of the matter the learned Judges of the High Court Division committed error of law in making the rule absolute in part with modification.
17. For all the above reasons, we find no substance in this appeal. Accordingly, it is dismissed without any orders to costs.
Source: III ADC (2006) 487