Mir Sattaruddin, Md. Johirul Alam, Md. Jamal Uddin and Md. Amir Hossain (Petitioners )
Vs.
Palli Daridra Bimochon Foundation, represented by the Managing Director and another (Respondents)
Supreme Court
Appellate Division
(Civil)
Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Abdul Matin J
Judgment
December 4, 2008.
Lawyers Involved:
Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner. (In all the cases)
Not represented- the Respondents. (In all the cases)
Civil Review Petition for Leave to Appeal Nos. 124-27 of 2008.
Judgment
Mohammad Fazlul Karim J. – These petitions for review are directed against the judgment and order dated 19.04.2007 passed by this Division in Civil Appeal Nos.84-85 of 2004 allowing the appeals.
2. The facts of the case, in short, are that in all the writ petitions the respective respondents have challenged respective order of termination from the service of the respective petitioner herein. The writ petitioners were employed in Palli Daridra Bimochon Foundation (PDBF) serving in Rural Development Board and by Act, XXIII of 1999 while PDBF was established, as per provision of Section 30 of the Act, Rural Development Board was abolished and the employees thereof became the employees of PDBF. As per provision of Section 29 of the Act Service Regulations of the employees of PDBF was framed and the same were published in the Gazette on June, 26, 2001. Regulation 61(2) of the Service Regulations, 2001 provides for termination of an employee of PDBF either by serving 3 months notice or in lieu thereof on payment of basic salary of 3 months. Writ-petitioner’s service was terminated by PDBF by the office order dated September 3, 2001 offering them basic salary for 3 months’ notice period and other benefits. Thereupon the writ-petitioners filed respective ‘writ petition challenging legality of Regulation 6-1(2) of the Service Regulations, 2001 and the office order terminating their service contending primarily that the Regulation 61(2) of the Service Regulations, 2001 is ultra vires of the fundamental right as guaranteed in Articles 27 and 29 of the Constitution. It was also contended that Regulation 61(2) being prohibitory provision cannot be considered as regulation since it has taken away the right of the writ-petitioners in the employment of PDBF. It was the case of PDBF that as the writ-petitions have been filed after long lapse of time, the Rules obtained therein are liable to be discharged on the ground of delay and laches. It was also the contention that since the writ-petitioners have claimed that they are workers within the meaning of Section2 (XXVIII) of the Industrial Ordinance, 1969 they are required to seek their redress against their respective order of termination before the Labour Court and having not done so the Rules obtained by the respective writ-petitioners are liable to be discharged. It was also the contention of PDBF that the writ-petitioners were purely temporary employees under Rural Development Board and as such their service was liable to be terminated as per terms and conditions of their letter of appointment by giving notice. Lastly it was submitted that since service regulations for the employees of PDBF have been framed and as the same have been given effect to and therein provision having been made for termination the service of the employees of the category of writ-petitioners either by giving 3 months notice or in lieu thereof on payment of basic salary of 3 months and as such provision of regulation 61(2) cannot be considered as violative of fundamental right.
3. In reply to the contention of the writ-respondent it was submitted on behalf of the writ-petitioners that though in the writ-petitions it has been stated that the writ-petitioners are workers within the meaning of the Industrial Relations Ordinance, but PDBF never considered itself as an industry and that in writ petition No. 2807 of 2002, the High Court Division has held that PDBF comes within the definition of ‘industry’ but the decision in the aforesaid writ petition is under appeal and as such, it has not been finally decided that PDBF is an ‘industry’ and its employees are workers, the writ-petitioners cannot go to the Labour Court to seek relief against their order of termination. It was also the contention of the writ petitioner that the delay occurred as they prayed for review of the order of termination and in that process there was delay in filing the writ petition.
4. The High Court Division disposed of the Rule upon observing that the writ petitioners accepted the Service Regulations, 2001 wherein it has been provided that the service condition of the employees who have been absorbed from Rural Development Board into PDBF may be changed, altered or may be determined in a different way by the PDBF and since the writ-petitioners have accepted that position, they are precluded from challenging the legality of the provision of Regulation 61 (2) of the Services Regulations, 2001 and of the five writ-petitioners, 2 (two) were appointed more than 13 years back, 1 (one) was appointed 12 years back and the other was also appointed more than 18 years back and as such, “though they became employees of PDBF by operation of law, their long service cannot be ignored. So, according to their case, their service cannot be terminated by three months notices or three months pay in lieu thereof. In their case, provisions of Regulation 30 shall apply because they were neither dismissed nor removed from service on any allegation. They shall be entitled to receive gratuity as provided in sub-regulation 30(2) for their termination. The employees who have completed 3 years service in the Foundation their services cannot be terminated by giving three months notice or three months pay in lieu thereof. That will amount to taking away a right which they acquired by rendering more than 3 years service. In view of our above discussion we find no reason for striking out sub-regulation (2) of regulation 61. Accordingly to us, this regulation shall be applicable subject to provisions of regulations 30”.
5. Mrs. Sufia Khatun, learned Advocate-on-Record, appearing for the petitioner submitted that the writ-petitioners were the permanent employees of BRDB on completion of their probation period and their service were not subjected to be terminated by or under Regulation No.55 of the BRDB by one month notice. Thus being a permanent employee of BRDB and being a worker under Section 2(XXVII) Industrial Relation Ordinance, 1969 they formed Trade Union which was registered on 03.11.1990 as a Trade Union No. B-1925 under BRDB and then their service was transferred to the Palli Daridra Bimochan Foundation. Then they being employees of the Palli Daridra Bimochan Foundation applied for Registration of Trade Union under Palli Daridra Bimochan Foundation in the name and style of “Palli Daridra Bimochan Foundation Kormochari Union, Bangladesh under the provision of section 8(1) of the Industrial Relation Ordinance, 1969″ which was refused by the Registrar of Trade Union and thereafter the writ-petitioners filed an Appeal Case No.13 of 2001 before the 2nd Labour Court, Dhaka under Section 8(3) of the Industrial Relation Ordinance, 1969 and the appeal was allowed by a judgment dated 11.05.2002 and the petitioners were treated as a workers and Palii Daridra Bimochan Foundation was treated as Industry; that the appellants being authority of Palli Daridra Bimochan Foundation challenged the said judgment in Writ Petition No.2807 of 2002 and the said writ petition was disposed by a judgment dated 1st March, 2003 upholding the decision of the Labour Court; that the appellants then filed a Civil Petition for Leave to Appeal No.394 of 2003 before this Court and the said leave petition was also dismissed by a judgment dated 17tn January, 2004. Thus, it has finally adjudicated the fact that the writ petitioners are workers under Palli Daridra Bimochan Foundation. The learned Advocate further submitted that the law regarding the service of the petitioners was not taken into consideration in the judgment of this Division; that the respondent-appellants signed a Memorandum of understanding on 15th July, 2001 with the employees of the Palli Daridra Bimochan Foundation and therein the respondent-appellants agreed to remove the Regulation No.61 (2) from the Service Regulation of the Palli Daridra Bimochan Foundation. But the appellants Palli Daridra Bimochan Foundation in violation of Memorandum of Understanding dated 15th July, 2001 terminated the service of the petitioners on 03.09.2001. The learned Advocate also submitted that the writ-petitioners were the employees of BRDB and their service was regulated by BRDB Regulation, 1988 and the said Regulation was guided by the mandate of the Industrial Relation Ordinance, 1969, Public Service Retirement Act, No. XXII of 1974 and Service Reorganization and Condition Act, No. XXXII of 1975 as per the Regulation No.LIV of the said BRDB regulation and on establishment of Palli Daridra Bimochan Foundation by the Act, No. XXIII of 1999 the service of the writ petitioners were transferred to the Palli Daridra Bimochan Foundation. Thereafter, the Palli Daridra Bimochan Foundation framed Service Regulation in the year, 2001. The writ-petitioners, acquired vested right of their service to be guided under the Industrial Relation Ordinance, 1969, Act, No. XXII of 1974 and Act No. XXXII of 1975 and the Authority of the Palli Daridra Bimochan Foundation being statutory public authority an industry can not frame any service regulation in violation of the Industrial Relation Ordinance, 1969. The mandate of the Act No. XXII of 1974, Act No. XXXII of 1975 and the Regulation No. LIV of BRDB were not discussed along with regulation No.61(2) of Palli Daridra Bimochan Foundation and termination of the service of the petitioners in violation of Section 47A of the Industrial Relation Ordinance, 1969 were not taken into consideration and as such, it needs to be reviewed.
6. It appears from the record that the writ petitioners were employed by the Rural Development Board under its project but in 1999 the Palli Daridra Bimochan Foundation shortly PDBF was established and the employees of BRDB became employees of PDBF and under Section 29 of the said Act certain Regulations were framed exercising the power under Section 29 thereof for regulating the services of the employees of PDBF which came into effect from 1st July, 2001 though the Regulations were published in the Official Gazette on 26.06.2001. It appears that the PDBF was substituted by BRDB and made provision regulating terms and conditions of its employees and under the same Act the regulation was framed providing, inter alia, that an employee can be terminated according to terms and conditions regulating the service by giving 3 months notice or pay in lieu thereof. The employees of the Rural Development Board upon their change of nomenclature became the employees of the PDBF under the provision of Section 30 of the Act and it appears from the record that their appointment were fully temporary for the project-12. Though they were appointed in BRDB under its specific project in different posts temporarily but by operation of law they became the employees of PDBF under the provision of the new Act. The service conditions of the employees could be changed and altered by the Board as has been done under the provision of PDBF and the respondents being appointed temporarily in its specific project the High Court Division has rightly held the same to be a valid regulation but the High Court Division considering the fact that the three respondents were appointed about more than 13 years back and one was appointed 12 years back and one was appointed about 8 years back and taking into account their long service which is more the 3 years and since they were not dismissed or removed but terminated in accordance with law by giving 3 months notice thereof, the High Court Division has lawfully allowed them gratuity but acted illegally in holding that their termination by giving 3 months notice or 3 months pay in lieu thereof was incompetent.
7. Fact remains that the writ petitioners were employees who were employed for a project and their service was liable to be terminated along with completion of the project or otherwise but in the facts and circumstances of the instant case the Authority deemed it fit to terminate their service by giving 3 months notice or 3 months pay in lieu during the continuance of the project. The writ petitioner continued to be the temporary employees for a project and their termination though not being by way of dismissal or removal from service but they were only entitled to gratuity for the period accrued to them in accordance with law for rendering the service more than 3 years of service with the PDBF.
8. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioner.
Accordingly, the petitions are dismissed.
Ed.
Source: 14 MLR (AD) (2009) 278.