Adamjee Jute Mills Ltd. and others Vs. M.A. Kashem and another, 42 DLR (AD) (1990) 104

Case No: Civil Petition for Leave to Appeal No. 608 of 2002

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: 42 DLR (AD) (1990) 104

Case Year: 1990

Appellant: Adamjee Jute Mills Ltd.

Respondent: M.A. Kashem and another

Subject: Administrative Law,

Delivery Date: 2005-12-12

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed J.R. Mudassir Husain, CJ.
Mohammad Fazlul Karim, J.
Amirul Kabir Chowdhury, J.
 
Adamjee Jute Mills Ltd. and others
…………….Petitioners
Vs.
M.A. Kashem and another
…………....Respondents.
 
Judgment
December 12, 2005.
 
Administrative Tribunal Act (VII of 1981)
Section 4
The transferability or non-transferability of the appellant’s service is a condition of the employment and the matter clearly comes within the purview of section 4 of the Administrative Tribunals Act. …. (13 & 14)
 
Lawyers Involved:
Sayyid Shahid Hussain, Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record - For Respondent No. 1.
Md. Nawab Ali, Advocate-on-Record - For the Petitioners.
Not represented - For Respondent No. 2.
 
Civil Petition for Leave to Appeal No. 608 of 2002
(From the judgment and order dated 14.1.2002 passed by the High Court Division in Writ Petition No.90 of 2001).
 
JUDGMENT
 
Mohammad Fazlul Karim J.
 
Adamjee Jute Mills Ltd and others seek leave to appeal against the judgment and order dated 14.1.2002 passed by the High Court Division in Writ Petition No.90 of 2001 making the rule absolute declaring that the direction issued by the writ-respondent No. 3 under Memo No. AJM/Pers/1/T-1/2000/200 dated 3.12.2000 directing the writ petitioner to go on retirement with effect from the afternoon of 28.2.2001 has been made/passed without any lawful authority and of no legal effect.
 
2. The respondent No. 1-writ-petitioner filed  the writ petition stating, inter alia, that he was  appointed as an Imam under the petitioner Mills on 15.9.1975 and is a worker under Public Corporation (Management and Coordination) Ordinance, 1986 as amended by Act 17 of 1994 which in section 2(e) provides that "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, administrator or supervisor or solely clerical capacity". In terms of definition of the term 'worker' the respondent is a worker and will retire at the age of 60 as provided in section 14A of Public Corporation (Management and Co-Ordination) Ordinance. His date of birth is 1.3.1944 and his retirement is due on 28.2.2004 but by the impugned Memo the petitioner Mills asked the respondent No. 1 to retire on 28.2.2001 at the age of 57 and hence the writ petition.
 
3. The word worker has been defined in Ordinance No. XL of 1986 as under:
 
"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, administrator or supervisor or solely clerical capacity".
 
A similar definition of the word 'worker' has been given in section 2(c) of State Owned Manufacturing Industries Workers (Terms and Conditions of Service) Act (Act 10 of 1974) with some addition. The definition is quoted below:
 
"2.(c) "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, administrator or supervisor or solely clerical capacity or who is an agricultural worker engaged in an agricultural farm, whether ancillary to any industrial unit or not."
 
4. Section 3 of Act 10 of 1974 provides Government's power to determine terms and condition of service of works of State owned manufacturing industries and in pursuance of the said power under section 3 of Act No. 10 of 1974 Ministry of Jute vide notification No. S.R.O. 432-L/85 dated 3.10.1985 and notification No. S.R.O. 246-Ain/93 dated 20.12.1993 time to time fixed the wages and other benefit of the workers and also provided a list of such workers excluding Imam i.e. the writ petitioner and as such he was drawing his salary since beginning of his service under National Pay Scale and not under Wages Commission Report provided for the workers only. This position i.e. drawing of salary under National Pay Scale as Public Servant had been accepted by the respondent. The SROs mentioned above excluding Imam from being worker has never been questioned by the respondent and the said SROs being law of the land, the writ petition in the present form is incompetent. The SROs and the office orders fixing the salaries of the petitioner under National Pay Scale have been annexed and marked as Annexure-A series in the Affidavit-in Opposition filed by the petitioners. That under section 3 of State-Owned Manufacturing Industries Workers (Terms and Conditions of Service) Act 1974 the Government issued a list of workers containing the service benefit vide SRO No.JID/W/74-351 dated 3.10.1974 and SRO 432-L/85 dated 3.10.1985 and lastly on 20.12.1993 issued SRP MP. 246/Law/93. The said SROs cover the list of workers working in the manufacturing industries but did not include the Imam or Pesh Imam as worker because the service of Imam is not connected with the production and hence the Pesh Imam is not a worker. Since SRO is a law the writ petitioner can not be said to be worker unless the same is struck done. That the employees who were enlisted as workers of the industry in the said SROs would draw their salaries under the Rules of Wage Board and the others not being workers would draw their salaries under National Pay Scale as public servant.
 
5. Mr. Sayyid Shahid Hussain, the learned Advocate appearing for the petitioner submitted that the writ petitioner having drawing his salary as public servant under the National Pay Scale issued time to time vide SROs till date and never having drawing his salary under National Wages Commission applicable to the workers as enlisted by SRO can not be treated as a worker under the definition provided in section 2(e) of Public Corporation Management Ordinance, 1986 and the High Court Division erred in law in not discharging the rule. The learned Advocate further submitted that the High Court Division acted wrongly in not appreciating the list of workers prepared under the SRO, drawing the salary till date under National Pay Scale and the provision of Regulation 54 of SRO No. 105/Ayne/98 dated 10.5.1998 providing retirement of Public Servant at the completion of 57 years of age.
 
6. On perusal of the impugned judgment it appears that the High Court Division considered the submission as under:
 
"In the above definitions there are two parts. From the first part of the definition we find worker will include any person skilled or unskilled who works for hire or reward. In both the definitions there is no mention the worker is a person who works for production of goods in the mills. So, we cannot accept the argument of Mr. Sayyid Shahid Hossain that 'worker' will include only those persons who are engaged in works relating to production. We cannot give a restrictive meaning to the definition of worker which is not in the law itself. In the above, we have found that only 4 categories of persons have been excluded in the definition of worker under section 2(e) of the Public Corporation (Management and Co-Ordination) Ordinance, 1986. A Pesh Imam, according to us, does not fall to any of these 4 categories. As he does not fall within any of these 4 categories, according to law of interpretation, his post will come within first part of the definition and not in the exclusion part. In the exclusion part of the definition only four specified categories of persons have been excluded, besides these four categories. All others will be considered as workers under that definition. So, according to us, the post of Pesh Imam shall fall within the category of worker in view of the definition of 'worker' under section 2(e) of the Public Corporations (Management and Co-Ordination) Ordinance, 1986. We may mention here that we cannot accept the argument of the learned Advocate that a Pesh Imam has supervisory and managerial functions because he only leads the prayer in a Mosque.
 
As we have found that the petitioner will fall within the category of 'Worker' as defined in the above Ordinance, the petitioner is entitled to get benefit of section 14A of the above Ordinance which provides that a worker of an enterprise notwithstanding anything contained in any terms and conditions of service or in any contract or in any rules, regulations or byelaws of other instruments shall retire from service after completion of sixtieth years of his age. As the petitioner falls within the category of 'Worker', in view of the notwithstanding clause, the terms and conditions of the employment or any other rules and regulations etc. shall not be any impediment of his getting the benefit under section 14A of the Ordinance. So, according to us, the impugned order was issued in violation of the provisions of section 14A of the Ordinance and as such it is liable to be declared to have been issued without any lawful authority."
 
7. The definition of 'worker' in the relevant Ordinance means any person, skilled or unskilled, who works for hire or rewards but does not include a person who is employed in any managerial, administrator or supervisor or solely clerical capacity. The writ petitioner is admittedly an Imam who is a skilled person engaged in the establishment of the petitioner and though he was allegedly paid according to the National Pay Scale but that will not make him a public servant. The High Court Division has a good ground in classifying him to the category of 'worker' under section 2(e) of the Public Corporation (Management and Co-Ordination) Ordinance 1986.
 
A Pesh Imam, according to us, does not fall to any of these 4 excluded categories. As he does not fall within any of these 4 excluded categories, according to law of interpretation, his post will come within inclusive part of the definition.
 
In view of the above, we do not find any substance in the submission of the learned Advocate for the petitioner.
 
The petition is dismissed.
 
Ed.