Abdul Mannan Taluk­der Vs. Bangladesh House Buil­ding Finance Corpora­tion, 42 DLR (AD) (1990) 104

Case No: Civil Appeal No. 66 of 1989

Judge: MH Rahman ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Mr. Asrarul Hossain,,

Citation: 42 DLR (AD) (1990) 104

Case Year: 1990

Appellant: Abdul Mannan Taluk­der

Respondent: Bangladesh House Buil­ding Finance Corpora­tion

Subject: Labour Law,

Delivery Date: 1989-12-12

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury, J.
Shahabuddin Ah­med, J.
M.H. Rahman, J.
A.T.M. Afzal, J.
 
Abdul Mannan Taluk­der
………….............Appellant
Vs.
Bangladesh House Buil­ding Finance Corpora­tion and another
………...............Respondents
 
Judgment
December 12, 1989.
 
The Industrial Relations Ordinance (XXIII of 1969)
Sections 34, 47B, 62 & 64
The Administrative Tribunal Act 1980 (VII of 1981)
Sections 2 (aa) and 4
Other amendments—Ordinance No. 51 of 1984.
Remedy under sections 34, 62 or 64 of the Industrial Relations Ordinance is not available to a trade union leader working in the House Building Finance Corporation. The impugned order of transfer is an action taken in relation with the appellant's service in the Corporation, and any grievance with regard to that could only be agitated before the Administrative Tribunal…………(15 & 16)
 
Cases Referred to-
Ready Mixed Concrete (South East) Ltd. V. Minister of Pensions and Na­tional Insurance, 1968 (1) All. E. R. 433 (439-440); Wilkinson Vs. Bank­ing Corporation (1948) 1 K.B. 721 (224); Md. Mafizuddin Vs. Ab­dul Hakim, 33 DLR (AD) 305.
 
Lawyers Involved:
Asrarul Hossain, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record— For the Appellant.
Rafiqul-ul-Huq, Senior Advocate (Shahid Alam, Advocate with him) instructed by Md. Sajjadul Huq, Advocate-on-Record— For Respondent No.1.
Not Represented — Respondent No. 2.
 
Civil Appeal No. 66 of 1989.
(From the judgment and order dated 14th Febru­ary, 1988 passed by the High Court Division, Dhaka in Writ Petition No. 1632 of 1988).
 
JUDGMENT
M.H. Rahman J.
 
This appeal by special leave is directed against the judgment and order dated 14.2.88 of the High Court Division, Dhaka passed in Writ Petition No. 1632 of 1988, filed by respon­dent No.1, the Bangladesh House Building Finance Corporation.
 
2. The appellant, a Supervisor, was posted at the relevant time at the Head Office of the Corpora­tion in Dhaka and he was the organizing secretary of the Karmachari Union of that Corporation. His case is that as a Trade Union leader he was not liable to be transferred without his consent to any station out­side Dhaka under section 47B of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I.R.O.), but he was illegally transferred from the Head Office to the Corporation's Regional Manager's Office at Comilla. The appellant challenged that or­der by instituting I.R.O. Case No.267 of 1988 be­fore the First Labour Court, Dhaka under section 34 of the I.R.O.
 
3. The Corporation contended before the La­bour Court that under section 4 of the Administra­tive Tribunal Act, 1980 the Administrative Tribunal set up under that Act had exclusive jurisdiction to try the petitioner's grievance and his petition under sec­tion 34 of the I.R.O. was not maintainable. It was further contended by respondent No.1 that the appel­lant's service was a transferable one and that in pur­suance to a circular of the Ministry of Finance dated 25.1.83 which provided for transfer of any employee in any office working for more than three years at one station the appellant, who was in Dhaka more than thirteen years, was transferred to Comilla along with four others.
 
4. On 3.11.88 the Labour Court stayed the op­eration of the order of transfer. The Corporation challenged that order in Writ Petition No. 1632 of 1989. By the impugned judgment and order dated 14.2.1988 the High Court Division held that as the Corpora­tion's order of transfer was a matter relating to terms and conditions of the employee's service the Admin­istrative Tribunal had exclusive jurisdiction in the matter in view of section 4 of the Administrative Tribunal Act, 1980, and, further, in view of clause (2) of Art. 117 of the Constitution which bars the ju­risdiction of any court or tribunal other than the ad­ministrative tribunal in respect of any matter falling within the jurisdiction of the administrative tribunal the First Labour Court's order dated 3.11.88 was passed without lawful authority and was of no legal effect.
 
5. Leave was granted to consider whether the non-transferability of a Trade Union leader granted under section 47B of the I.R.O. is a condition of the service.
 
6. Section 47B of the I.R.O. reads as follows:
 
"No officer of any Trade Union shall be transferred from one place to another without his consent."
 
Mr. Rafiqul Huq, learned Counsel for the Cor­poration, had placed before us the Industrial Rela­tions (Amendment) Ordinance 1989 published in the Bangladesh Gazette on November 15,1989. By that amendment the earlier provision of section 47B has been substituted by the following new section 47B:-
 
“Neither the President nor the General Sec­retary of any Trade Union shall be transferred from one place to another without his consent."
Mr. Asrarul Hossain has pointed out this provi­sion has not been given any retrospective effect. The instant case can be decided without considering the amended provision.
 
7. Mr. Asrarul Hossain, learned Counsel for the appellant, has contended that the object of sec­tion 47B of the I.R.O. is to give protection to the Trade Union leaders for their Trade Union activities. He has submitted that non-transferability of a trade union worker is a right or privilege given de hors the contract or terms and conditions of the employment.
 
8. Our attention is drawn to the following ob­servation of Mackenna, J. in Ready Mixed Concrete (South East) Ltd. V. Minister of Pensions and Na­tional Insurance, 1968 (1) All. E.R. 433 (439-440).
 
"A contract of service exists if the follow­ing three conditions are fulfilled: (i) The servant agrees that in consideration of a wage or other remuneration he will provide his own work and skill in the performance of some service for his master, (ii) He agrees, expressly or impliedly, that in the performance of that service he will be subject to the other's control in a sufficient de­gree to make that other master, (iii) The other provisions of the contract are consistent with its being a contract of service."
 
9. Mr. Hossain has also drawn our attention to the preamble to the Administrative Tribunal Act, 1981 in support of his contention that the jurisdic­tion to the Administrative Tribunal Act is confined only to the terms and conditions of the service of the Republic or of any statutory public authority.
 
10. Mr. Asrarul Hossain has submitted that as the I.R.O. has given a right to the appellant and also provided procedure for enforcement of such right his application was maintainable under section 34 of the I.R.O. He has drawn our attention to the following observation of Asquith, L.J. in Wilkinson Vs. Bank­ing Corporation (1948) 1 K.B. 721 (224):
 
"It is undoubtedly good law that where a statute creates a right and in plain language gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce that right must resort to this remedy or this tribunal and not to others."
 
11. Mr. Hossain cited Md. Mafizuddin Vs. Ab­dul Hakim, 33 DLR (AD) 305 where the above ob­servation was noted with approval. That case arose out of a proceeding under section 26F of the Bengal Tenancy Act, 1985 and has got no relevance in this case.
 
12. It is not disputed that the Bangladesh House Building Finance Corporation has been brought under the Administrative Tribunal Act, 1980 (Act No. VII of 1981) as amended by the Adminis­trative Tribunal (Amendment) Act, 1984 (Ordinance No. LX of 1984).
 
13. Relevant portion of section 4 of the Ad­ministrative Tribunal Act, 1980 run as follows:
 
"4(1) An Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic in respect of the terms and con­ditions of his service including pension rights, or in respect of any action taken in relation to him as a person in the service of the Republic or of any statutory public authority.
(2) A person in the service of the Republic or of any statutory public authority may make an application to an Administrative Tribunal un­der sub-section (1), if he is aggrieved by any order or decision in respect of the terms and con­ditions of his service including pension rights or by any action taken in relation to him as a per­son in the service of the Republic or of any stat­utory public authority."
 
14. From the plain reading of the aforesaid provision it is clear that the Corporation's action allegedly done in violation of section 47B of the I.R.O. is in relation to the appellant, a person in the service of respondent No. 1, a statutory public authority es­tablished under President's Order No.7 of 1973. The basic status of the appellant is that he is a worker of the Corporation. Without that status he could not be a Trade Union leader of the Corporation's Karmachari Union. The transferability or non-transferability of the appellant's service is a condition of his employ­ment and the matter clearly comes within the purview of section 4 of the Administrative Tribunal Act, 1980. Mr. Hossain has cited several decisions with regard to the meaning of the term 'action'. The term 'action' in sub-section (2) of section 4 of that Act clearly means an action or proceeding that may be taken by the employer in relation to its employ­ee.

15. The main object of section 47B, I.R.O. is to give protection to a trade union leader so that for his trade union activities he may not be harassed by the employer by transferring him from one place to another without his consent. In case of a violation of that provision a Trade Union leader can file an appli­cation before the Labour Court under section 34 of the I.R.O. and the Labour Court can take cognizance of such an offence under section 64. Those provi­sions of the I.R.O. are applicable to all Trade Union leaders but not to those Trade Union leaders who are working in statutory public authorities like respon­dent No.1 mentioned in the schedule to the Adminis­trative Tribunal Act 1980. Remedy under sections 34, 62 or 64 of the I.R.O. is not available to a trade union leader working in the House Building Finance Corporation.
 
16. Lastly, Mr. Asrarul Hossain has pointed that any violation of the provision of section 47B of the I.R.O. is punishable under section 62 of the said Ordinance. He has submitted that there is no such de­terrent provision under the Administrative Tribunal Act and the Administrative Tribunal cannot give complete justice to the appellant. This seemingly attractive argument docs not stand scrutiny for two rea­sons. Firstly, the Administrative Tribunal has the full power to give complete relief to an applicant and it may even draw a proceeding of contempt against the employer refusing to comply with its order. Sec­ondly, the right of a trade union leader under section 47B of the I.R.O. must yield to the supervening pro­vision of clause (2) of Article 117 of the Constitu­tion which provides that no Court shall entertain any proceeding or make any order in respect of any mat­ter falling within the jurisdiction of an administra­tive tribunal. To sum up, the impugned order of transfer is an action taken in relation with the appel­lant's service in the Corporation, and any grievance with regard to that could only be agitated before the Administrative Tribunal.
 
17. The appeal is dismissed. No costs.
 
Ed.