British American Tobacco Vs. Begum Shamsun Nahar, 3 LNJ AD (2014) 43

Case No: Civil Petition for Leave to Appeal No. 2410 of 2009

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mr. Md. Bodruddoza,Mr. Khair Azaz Masud,,

Citation: 3 LNJ AD (2014) 43

Case Year: 2014

Appellant: British American Tobacco

Respondent: Begum Shamsun Nahar

Delivery Date: 2010-10-13


APPELLATE DIVISION
(CIVIL)
 
A. B. M. Khairul Haque, CJ.
Md. Muzammel Hossain, J
S. K. Sinha, J
 
Judgment on
13.10.2010
  British American Tobacco Bangladesh Company Ltd.
. . . Petitioner.
-Versus-
Begum Shamsun Nahar
. . . Respondent
 
 
Code of Civil Procedure (V of 1908)
Order VII, Rule 11
From a clear reading of the plaint, judgments and orders passed by the High Court Division and the trial Court in the instant case it appears that both the High Court Division and the Trial Court have rightly observed that none of these four conditions is attracted in the instant case. The grounds raised by the defendant petitioner do not come within the provisions of Order VII Rule 11 of the Code of Civil Procedure. In the instant case we have found that the plaintiff respondent has clearly made out a case. There is a proper cause of action and none of the four grounds for rejection of plaint is attracted. The points raised by the defendant petitioner has no merit because all these points can be decided only by adducing evidence at the time of trial of the case and for those reasons the plaint cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure. . . . (14)

Vishaka & others vs State of Rajasthan & others, AIR 1997 SC 3011 and Bangladesh National Women Lawyers Association (BNWLA) vs. Bangladesh, 14 BLC (HCD) 694 ref.
 
For the Petitioners (In both the petitions): Mr. Md. Bodruddoza, Advocate, instructed by Mr. Mohammad Nawab Ali, Advocate-On-Record.
For the Respondent No. 1 (In both the petitions): Mr. Khair Azaz Masud, Advocate, instructed by Mr. A.K.M. Shahidul Huq, Advocate-On-Record.
For the Respondent Nos. 2-6 (In both the petitions):  None Represented.
 
Civil Petition for Leave to Appeal No. 2410 of 2009
 
JUDGMENT
Md. Muzammel Hossain, J:

This petition for leave to appeal under Article 103 of the Constitution of People’s Republic of Bangladesh is directed against the judgment and order dated 19.08.2008 passed by a Division Bench of the High Court Division in Civil Revision No. 3544 of 2005 discharging the Rule and affirming the judgment and order dated 10.05.2005 passed by the learned Joint District Judge, 1st Court, Dhaka in Money Suit No.32 of 2004 rejecting the application under Order 7 Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure, 1908 filed by the defendant-petitioner.

The present respondent as plaintiff filed Money Suit No. 32 of 2004 for realization of a sum of TK. 2,50,038,000/- as damages from the defendant-petitioner along with interest at the rate of 15% stating, interalia, that the plaintiff was appointed as “Lady Confidential Typist” vide Memo No. SE/1 dated 17.01.1985 with effect from 01.01.1985. After her appoin-tment, considering her performance in service she was upgraded twice in 1996 and 2001 to the post of Secretary and Co-ordination Officer respectively. Since 1986 the plaintiff was the sole permanent female employee of the defendant-company and from the begining she was the recipient of unwelcome attention from two employees of the defendant-company, namely Mr. Ezaz Ahmed Choudhury, the Head of Leaf, who at the time of occurrence, was the Area Manager (Leaf) of the Company and Mr. Golam Farook Khan who was the leaf Co-ordination and Export Manager at the time of filing the suit. The unwelcome attention included touching of her body, pulling of the hands by these two persons, unnecessarily patting her on the head, and suddenly embracing her from behind. Besides, the other overtures of Mr. Golam Farook Khan were particularly disturbing as he was more explicit, even to the extent of offering the plaintiff extra-marital personal relationship. Other than the harassment mentioned above, the plaintiff had been enjoying her work in the defendant-petitioner-company and found support in respectful and considerate dealings of the other employees, particularly Mr. Md. Shahjahan who was then the Leaf Accountant, Kushtia and Mr. Manzurul Haque who was then the Plant Manager of Kushtia GLT Plant of the defendant-company and the Supervisor of the plaintiff. Manzurul Haque gave her protection. The plaintiff on several occasions made verbal complaints to her immediate superior. The Head of the Leaf, Mr. Ezaz Ahmed Choudhury had ordered the plaintiff in the year 2000 to report to the Head Office in Dhaka for working directly under him as his assistant and the plaintiff worked there until 2001 then she returned to "her Kushtia Office as Co-ordination Officer. From then on the sexual overtures and hints became more pronounced in Mr. Golam Farook Khan’s dealings with the Plaintiff-respondent. Once, in 1988, when Mr. Ezaz Ahmad Choudhury was stationed in Kushtia as Area Manager (Leaf) who used to reside in the defendant-petitioner's 1st Floor of the transit flat / rest house within the plant premises, the plaintiff-respondent in course of her official duties, had to go to the rest house and on her way out the plaintiff-respondent sought permission to use the toilet of the rest house since the place was empty and no one had arrived yet. After opening the door of the toilet the plaintiff-respondent discovered Mr. Ezaz Ahmed Choudhury in a compromising position with a young married lady known to her and everyone else in the office. On 31.07.2003 i.e. a day later the plaintiff received a letter from- Mr. Quazi Mohammad Shahed, the Head of Human Resources, terminating the plaintiff-respondent's service with effect from 01.08.2003 i.e. the very next date. Due to such behaviour, the plaintiff-respondent filed the instant suit claiming damages against the defendant-petitioner-company for the tort committed by its employees at her work place by harassing her sexually and also for bullying her and though she had brought the matter to the notice of the Manager of the Company, yet no step was taken by him to stop such harassment and bullying rather she was terminated from her service.

The sole defendant-petitioner appeared in the suit and filed an application under Order 7 Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure for rejection of the plaint on the grounds, inter alia, that the word “defamation” falls within the purview of an action in person, but the plaintiff-respondent brought the case against the defendant-petitioner which was not personally liable for any alleged damages caused to her in the form of harassment and bullying in work place while she was in the employment of the respondent-company. The suit is not in the nature of a suit as contemplated in section 9 of the Code of Civil Procedure,1908 and that the suit is barred by law. The plaintiff has no cause of action to file this suit against the defendant-company and as such the application is liable to be allowed. The plaint can be rejected at any stage of the suit and as such the prayer under Order 7 Rule 11(a) and (d) should be allowed and the plaint is liable to be rejected.

The application was heard by the learned Joint District Judge, 1st Court, Dhaka who after hearing both the parties by the order dated 10.05.2005 rejected the application filed by the present petitioner seeking rejection of the plaint.

Being aggrieved by the aforesaid judgment and order dated 10.05.2005 the defendant-petitioner moved the High Court Division in Civil Revision No. 3544 of 2005 and a Division Bench of the High Court Division by the impugned judgment and order dated 19.08.2008 discharged the Rule.

The defendant-petitioner being aggrieved by the impugned judgment and order passed by a Division Bench of the High Court Division moved the instant civil petition for leave to appeal before this Division.

Mrs. Sigma Huda, the learned Advocate appearing for the defendant-petitioner submits that the High Court Division erred in law in applying the doctrine of the Vicarious liability which can not be applied in deciding the cause of action of the instant suit in absence of two essential conditions of co-existence of the relationship of master and servant and the offence has not been committed in the course of employment as "in the course of employ-ment" means the acts done by the employees having been authorised by the employment which are very much related with the affairs of the employment. She then submits that the High Court Division committed error of law occasioning failure of justice in not considering that the defendant-petitioner will be vicariously liable for those acts committed by its employees only if it had authorised them to do for carrying on the business of the Company and that the offence as allegedly committed, is not in any way related with the business of the defendant-petitioner and as such the defendant-petitioner cannot be held liable for the wrongful act of the employees which is beyond the scope of service. She contends that the High Court Division as well as the 1st Court of  Joint District Judge, Dhaka failed to appreciate that no cause of action can lie against the defendant-petitioner even vicariously since after termination, the plaintiff-respondent having accepted all dues and benefits from the defendant-petitioner against such termination without any protest precludes the right of any additional claim at any subsequent stage.

We have heard the learned Counsel appearing for both the parties and perused the judgment and order of the High Court Division and other materials on record. It appears that in various paragraphs of the plaint particularly in paragraph Nos.6, 7, 10, 21 and 22 the plaintiff-respondent has stated about the sexual harassment and bullying caused to her by the employees of the defendant-petitioner and about her attempt by approaching the manag-ement of the defendant-petitioner to get rid of such harassment and bullying but instead, she was terminated from her service. According to Order 7 Rule 11(a) a plaint is liable to be rejected if it does not disclose a cause of action. In the case of Abul Khair –Vs- Pubali Bank, 53 DLR (AD) 62 this Division held that the Court while deciding an application for rejection of plant is not permitted to travel beyond the averments made in the plaint. In the instant case from a clear reading of the plaint it appears that the plaintiff-respondent has made allegations against the defendant-petitioner about its inaction to remedy the sexual harassment and bullying caused to her by its employees. Supreme Court of India while formulating guideline against sexual harassment at workplace in Vishaka & others vs State of Rajasthan & others, AIR 1997 SC 3011, defines sexual harassment as under:
 
"sexual harassment includes such unw-elcome sexually determined behaviour (whether directly or by implication) as:
  1. physical contact and advances;
  2. a demand or request for sexual favours;
  3. sexually coloured remarks;
  4. showing pornography;
  5. any other unwelcome physical, verbal or non-verbal conduct of sexual nature."
High Court Division in the case of Bang-ladesh National Women Lawyers Association (BNWLA) vs. Bangladesh, 14 BLC (HCD) 694 at page 706 paragraph 61 defines sexual harassment as under:

"a. Unwelcome sexually determined behaviour (whether directly or by implication) as physical contact and advances;
b. Attempts or efforts to establish physical relation having sexual implic-ation by the abuse of administrative, authoritative or professional powers;
c. Sexually coloured verbal represen-tation;
d. Demand or request for sexual favours;
e. Showing pornography;
f. Sexually coloured remark or gesture;
g. Indecent gesture, teasing through abusive language, stalking, joking having sexual implication;
h. Insult through letters, telephone calls, cell phone calls, SMS, pottering, notice, cartoon, writing on bench, chair, table, notice boards, walls of office, factory, classroom, washroom having           sexual implication;
i. Taking still or video photographs for the purpose of     blackmailing and character assassination;
j. Preventing participation in sports, cultural, organizational and academic activities on the ground of sex and / or for the purpose     of sexual harassment;
k. Making love proposal and exerting pressure or posing threats in case of refusal to love proposal;
l. Attempt to establish sexual relation by intimidation, deception or false assurance."

The original definition of tort that appeared in the well-known work on Law of Torts by Clerk and Lindsell ran as follows: "A tort may be described as a wrong independent of contract, for which the appropriate remedy is a common law action." Underhill amplifies this definition thus:
  1. "A tort is an act or omission which is not authorised by law, and independently of contract infringes either-
    1. some absolute right of another;
    2. some qualified right of another causing damage; or
  2. (c) some public right resulting in some substantial and particular damage to some person beyond that which is suffered by the         public generally;
  3. and gives rise to an action for damages at the suit of the injured party."
Sexual harassment in employment may be termed as any attention of a sexual nature in the context of work situation which has the effect of making a woman uncomfortable on the job, impeding her ability to do the work or interfering with her employment opportunities. Sexual harassment may on its extreme form take the shape of a direct demand for sexual compliance coupled with the threat of firing if the woman refuses.

Sexual harassment has a devastating effect on both the economic opportunities and the physical and emotional well-being of working woman. Victim suffers from insomnia, depression, nervousness, fear, feeling of powe-rlessness and other symptoms of psychological harm which sometimes lead to a complete emotional breakdown. In consequence of this emotional breakdown and sometimes indepe-ndently physical effects such as headache, loss of appetite, loss of weight, nausea and fatigue may occur. It hinders a woman's chances of economic prospects by reducing her perfor-mance at job. So sexual harassment definitely gives birth of a liability under the law of tort.

A person can be liable for tort as well and damages may be claimed against him for such wrong doing as well as against an organization or establishment if it fails to ensure the preve-ntion of sexual harassment and bullying to a woman, where she can work with honour and dignity and without being harassed or disturbed by her male boss or other male colleagues. In the plaint the plaintiff has categorically stated about the touching of her body, pulling her hands, unnecessarily patting her on the head, suddenly embracing her from behind besides the other overtures by Mr. Ezaz Ahmed, an employee of the defendant-petitioner. She also alleged overtures against Mr. Golam Farooq Khan, another employee of the petitioner-company disturbing her in a more explicit manner. From the statements made in paragraph No.21 of the plaint it appears that the plaintiff-respondent made written complaints to the Human Resources Manager and the Managing Director of the petitioner-company and the other authorities for the harassment caused to her who has a duty of care towards her. We are of the view that where the existence of the cause of action is required to be determined by adducing evidence, plaint cannot be rejected under Order 7 Rule 11. Whatever may be the allegations made by the plaintiff in the plaint, whether the employees of the defendant-company harassed her in the work place, or the plaintiff made written com-plaints to the management of the defendant-petitioner-company about the sexual harassment and bullying by the said employees of the defendant-petitioner-company and whether the defendant-petitioner-company took any step to remedy the grievances of the plaintiff-respondent, or the defendant-petitioner-company took steps to prevent or deter the commission of the acts of sexual harassment and bullying by its employees and whether the defendant-petitioner-company could be held responsible for such sexual harassment and bullying caused to the plaintiff-respondent are all questions of facts and can only be decided on the evidence to be adduced by the concerned parties in the trial of the case. Moreover, question of vicarious liability of the defendant-petitioner-company is also a question of fact to be proved by adducing evidence. Both the High Court Division and the Trial Court from clear reading of the plaint rightly found that the plaintiff has clearly stated the facts of the cause of action to bring the suit against the defendant. The power to reject a plaint should not be exercised hastily without affording opportunity to the plaintiff to cure the defect or to amend the plaint. A plaint cannot be rejected for defect of parties because such an exigency has not been contemplated under Order VII Rule 11 of the Code of Civil Procedure. Defect of parties can be cured by the plaintiff by impleading the concerned employees of the defendant company in the plaint. It is worth mentioning that in an application under Order VII Rule 11 of the Code of Civil Procedure a plaint shall be rejected in the following cases: (a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law.

From a clear reading of the plaint, judgments and orders passed by the High Court Division and the trial Court in the instant case it appears that both the High Court Division and the Trial Court have rightly observed that none of these four conditions is attracted in the instant case. The grounds raised by the defendant petitioner do not come within the provisions of Order VII Rule 11 of the Code of Civil Procedure. In the instant case we have found that the plaintiff respondent has clearly made out a case. There is a proper cause of action and none of the four grounds for rejection of plaint is attracted. The points raised by the defendant petitioner has no merit because all these points can be decided only by adducing evidence at the time of trial of the case and for those reasons the plaint cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure.

For the aforesaid findings and observat-ions the High Court Division rightly discharged the Rule. In view of the above findings and observations we do not find any merit in the leave petition.

Accordingly, the leave petition is dismissed.

Ed.