Bangladesh Water Development and others Vs. Chairman, Divisional Labour Court, Khulna and another, VII ADC (2010) 83

Case No: Civil Appeal No. 110 of 2002

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,,

Citation: VII ADC (2010) 83

Case Year: 2010

Appellant: Bangladesh Water Development and others

Respondent: Chairman, Labour Court

Subject: Labour Law,

Delivery Date: 2009-10-28

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Abdul Matin J
Shah Abu Nayeem Mominur Rahman J
 
Bangladesh Water Development and others
………….........Appellants
Vs.
The Chairman, Divisional Labour Court, Khulna and another
………….........Respondents
 
Judgment
October 28, 2009.
 
As it is seen the Water Development Board challenges the judgment and order of the labour court and those of the High Court Division, involving point of law as to whether the respondent Golam Nabi was an employee with the status of a regular staff or a labour and whether the provisions of Employment of Labour (Standing Orders) Act 1965 would be applicable or not in this case. …. (7)
 
In that case this court held that the workers of Dhaka Improvement Trust cannot invoke the provisions of Employment of Labour (Standing Orders) Act 1965.  For the same logic there is no escape from the conclusion that the provisions of Employment of Labour (Standing Orders) Act 1965 has no application for the workers of Bangladesh Water Development Board, which is creation of statute, not created for any profit making. …. (16)
 
Cases Referred To-
Director of Ports Vs. 2nd Labour Court, Dhaka; Chairman, DIT and another Vs. Chairman, 2nd Labour Court and another this Division.
 
Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-For the Appellants.
Respondents-Ex-parte.
 
Civil Appeal No. 110 of 2002
(From the judgment and order dated 20.04.2000 passed by the High Court Division in Writ Petition No.6150 of 1997)
 
JUDGMENT
Md. Abdul Matin J.
 
This appeal is direct­ed against the judgment and order dated 20.4.2000 passed in Writ Petition No. 6150 of 1997 by the High Court Division, dis­charging the Rule and affirming the judg­ment and order dated 28.04.1997 passed by the Chairman, Divisional Labour Court, Khulna in Complaint Case No.25 of 1995.
 
2. The facts, in short, are that the respon­dent No. 2 Md. Golam Nabi filed a Complaint Case being No.25 of 1995 in the Divisional Labour Court.  Khulna, under section 25(1 )(b) of the Employment of Labour (Standing Orders) Act, 1965 stating, inter alia, that he was appointed on 16.08.1964 as an Work Charge staff, on 18.05.1986 he was made permanent staff and was continuing as such but he was retired from service on and from 04.06.1994 after completing service for 31 years illegally and arbitrarily without giv­ing benefit of pension and gratuity etc. and it is alleged that he had lastly submitted an application to the authority, namely the Chairman of Bangladesh Water Development Board on 17.06.1995 claim­ing all benefits to which he was entitled as a permanent and regular staff for the entire period he served till the date of his retire­ment. But the authority namely the Bangladesh Water Development Board did not pass any order upon that applica­tion. So the respondent No. 2, after serving a grievance notice demanding justice by registered post, which also the petitioner refused to accept, filed the complaint case.
 
3. The present petitioner Bangladesh water Development Board contested the said case before the labour court by filing a written statement admitting that the respondent No. 2 was appointed in 1964 but stating, inter alia. that he could not be made permanent or regular for want of sanction order for making him permanent staff,  from the government, during the period of his service in the Ministry of Irrigation, Flood Control and Water Resource, wherefrom the respondent No. 2 was made to retire from his service, in accordance with law, when he already completed duration of his service and he was paid all the service benefits after legal and proper calculation of the same, for his period of service from the date of his appointment upto the date of his retire­ment. According to the petitioner the labour court by its judgment and order dated 26.04.1997 illegally allowed the case of the said respondent against the petitioner. The ordering portion of the judgment of the labour court is as follows:-
 
“প্রার্থী নিয়গের তারিখ হইতে নিয়মিত শ্রমিক কর্মচারী হিসাবে বিধি মোতাবেক সমস্ত সুযোগ সুবিধাদি পাইতে অধিকারী”
 
4. Against that order the present petitioner filed the said writ petition before the High Court Division which was contested by the respondent Md. Golam Nabi and the High Court Division after hearing the par­ties discharged the Rule with an order directing the present petitioner to pay the entire dues and benefits to the respondent No.2, Md. Golam Nabi on or before 25.07.2000 treating him as a regular and permanent staff failing which the petition­er may be prosecuted in accordance with law, without considering whether said Golam Nabi is a worker or a staff, and whether he is entitled to the benefits as ordered.
 
5. It was also submitted by Mr. Md. Nowab Ali, the learned Advocate-on-Record for the petitioner, that the learned Judges of the High Court Division erred in law in not accepting the legal position that the Bangladesh Water Development Board is neither a commercial   nor an industrial concern and as such the provi­sion of Employment of Labour (Standing Orders) Act 1965 is not applicable in this case and accordingly the labour court had no jurisdiction to entertain the case of said Golam Nabi the complainant. It is also submitted that the High Court Division without legally interpreting the meaning of the provision of said Employment of Labour (Standing Orders) Act, 1965 and without considering its implication upon the present dispute discharged the Rule in favour of the respondent No.2 Md. Golam Nabi resulting in an error in the decision.
 
6. The learned Advocate on record appear­ing for the petitioner further submitted that the impugned order of the High Court Division is illegal and not sustainable in law in view of the admitted facts and cir­cumstances of the dispute and the legal position.
 
7. As it is seen the Water Development Board challenges the judgment and order of the labour court and those of the High Court Division, involving point of law as to whether the respondent Golam Nabi was an employee with the status of a reg­ular staff or a labour and whether the pro­visions of Employment of Labour (Standing Orders) Act, 1965  would be applicable or not in this case, the learned Advocate on record submitted that the High Court Division, committed an error of law in affirming the judgment and order of the labour court and failed to note that retirement is not covered in section 25(1)(b) of the Employment of Labour (Standing Orders) Act, 1965, as the same has dealt with dismissal, discharge, retrenchment and termination from serv­ice and as such the case of the respondent No.2 claiming benefits for the period he served after his retirement is totally misconceived and untenable.
 
8. Leave was granted to consider the above submissions.
 
9. Heard the learned Advocate-on-Record including the leave granting order and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
10. The learned Advocate-on-Record sub­mits that Bangladesh Water Development Board is neither a commercial nor an industrial concern and as such the provi­sions of Employment of Labour (Standing Orders) Act, 1965 is not applicable in this case and accordingly the labour court had no jurisdiction to entertain the case of respondent Golam Nabi the complainant.
 
11. In the Divisional Labour Court the respondent Golam Nabi filed the com­plaint case under Section 25(1)(b) of the Employment of Labour (Standing Orders) Act, 1965. The precise question is whether Bangladesh Water Development Board is a commercial establishment or an industri­al establishment. The commercial estab­lishment has been defined in Section 2 of the Employment of Labour (Standing Orders) Act, 1965 as under:-
 
"(d) 'commercial establishment' means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes clerical department of a factory or of any industrial or commercial under­taking, the office establishment of a person who for the purpose of fulfill­ing a contract with the owner of any commercial establishment or industri­al establishment employs workers, a unit of a joint-stock company, an insurance company, a banking compa­ny or a bank, a broker's office or stock exchange, a club, a hotel or a restau­rant or an eating house, cinema or the­atre, or such other establishment or class thereof as the Government may, by notification in the official gazette, declare to be a commercial establish­ment for the purpose of this Act."
 
12. Industrial establishment has been defined in Section 2 clause (j) which runs as under:
 
"(j) 'industrial establishment' means any workshop or other establishment in which articles are produced, adapt­ed or manufactured or where the work of making, altering, repairing, orna­menting, finishing or packing or oth­erwise treating any article or sub­stance, with a view to their use, trans­port, sale, delivery or disposal, is car­ried on or such other class of estab­lishments including water transport vessels or any class thereof which the Government may, by notification in the official gazette, declare to be an industrial establishment for the pur­pose of this Act, and includes-
(i) any motor omnibus service, any dock, wharf or jetty.
(ii) any mine, quarry, gas-field or oil­field.
(iii) any plantation, or
(vi) a factory as defined in the Factories Act, 1965."
 
13. From a plain reading of the above def­initions of commercial establishment and industrial establishment it appears that Bangladesh Water Development Board does not come with the meaning of either of the two establishments.
 
14. In the case of Director of Ports Vs. 2nd Labour Court, Dhaka the High Court Division held that Inland Water Transport Authority being a statutory body of the Government was not created for any busi­ness purpose to gain any profit therefrom and provisions of Employment of Labour (Standing Order) Act is not applicable to such authority.
 
15. In the case of Chairman, DIT and another Vs. Chairman, 2nd Labour Court and another this Division held that Dhaka Improvement Trust is neither a commer­cial establishment nor an industrial estab­lishment as defined in the Employment of Labour (Standing Orders) Act, 1965 (Act VIII of 1965).
 
16. In that case this court held that the workers of Dhaka Improvement Trust can­not invoke the provisions of Employment of Labour (Standing Order) Act, 1965. For the same logic there is no escape from the conclusion that the provisions of Employment of Labour (Standing Order) Act, 1965 have no application for the work­ers of Bangladesh Water Development Board, which is creation of statute, not created for any profit making.
 
17. In such view of the matter we find sub­stance in this appeal which is allowed without any order as to costs. The impugned judgment and order dated 20.04.2000 passed in Writ Petition No. 6150 of 1997 by the High Court Division is set aside and the Complaint Case No. 25 of 1995 is dismissed.
 
Ed.