Case No: Appeal No. 67 of 1980
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. K. A. Bakr,,
Citation: 34 DLR (AD) (1982) 37
Case Year: 1982
Appellant: Chairman, D. I. T
Respondent: Chairman, Labour Court
Subject: Labour Law,
Delivery Date: 1981-1-12
Kemaluddin Hossain, CJ.
Fazle Munim, J.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
Chairman, D. I. T and another
Chairman, 2nd Labour Court and another
Jan. 12, 1981
Dacca Improvement Trust is neither a commercial establishment nor industrial establishment as defined in the Employment of Labour (Standing Orders) Act VIII of 1965.
Amir Hossain Khondker, Advocate, instructed by S M, Huq, Advocate-on-Record.—For the Appellants.
Faruque Ahmed, Advocate-on-Record.—For the Respondent No. 2.
Not represented—Respondent No. 1.
K. A. Bakr, Attorney-General—Amicus Curiae.
Appeal No.67 of 1980
(From the judgment and order dated 23.6.79 passed by the High Court Division in Writ Petition No. 59 of 1978).
Badrul Haider Chowdhury J.
This appeal by special leave is directed against the order of the High Court Division in Writ Petition No. 59 of 1979 rejecting the petition summarily.
2. Facts are not in dispute. Respondent No.2 was an employee of the Dacca Improvement Trust (DIT), He was tried by Special Magistrate on a criminal charge but was acquitted on the ground that' the case was triable by the ordinary criminal Court. Thereafter the departmental proceeding was initiated against him which is still pending. He, however, filed an application under section 34 of the Industrial Relations Ordinance, 1969 claiming subsistence allowance for 60 days and full wages with effect from 5.2.1974. Labour Court came to the conclusion that the DIT is a commercial establishment and the respondent No. 2 is a worker within the meaning of the Employment of Labour (Standing Orders) Act, 1965 and accordingly granted the prayers. The decision of the Labour Court was challenged by way of writ petition by the DIT. The High Court Division summarily dismissed the petition holding that the employees of the DIT had come within the definition of worker under the Employment of Labour (Standing Orders) Act and since DIT is a commercial establishment or industrial establishment within the meaning of the Employment of Labour (Standing Orders) Act, no interference is called for.
Leave was granted to consider whether the DIT is a commercial establishment or industrial establishment within the meaning of the Standing Orders Act and whether the respondent No. 2 is a worker within the meaning of the said Act.
3. The point raised is an important question. Though the High Court Division had summarily dismissed the petition yet the reason given in the judgment, on scrutiny, appears to be a circuitous one. To quote from the High Court Division judgement:
4. These observations of the High Court Division begs the whole question namely, whether the DIT is commercial or industrial establishment within the meaning of the Employment of Labour (Standing Orders) Act, or it is an establishment within the meaning of section 2, clause 9 or clause 14 of the Industrial Relations Ordinance and the respondent is a worker under the Industrial Relations Ordinance or under the Standing Orders Act.
Before proceeding further it will be convenient to notice the prayer of the respondent that was made before the Labour Court. The respondent stated in his petition before the Labour Court as under;
5. He further prayed for a direction on the Second Party to pay subsistence allowance and 50% for the first 60 days and full salary for the rest period with effect from 5.2.74. The Labour Court allowed the petition and directed the second party "to calculate and to pay subsistence allowance equivalent to half of his wages upto 6.6.77 and full wages with effect from 7.6.77 till the date of termination of the departmental proceedings." It is clear that the respondent invoked section 18(2) of the Employment of Labour (Standing Orders) Act claiming subsistence allowance and the Labour Court granted it.
6. Section 18(2) of the Employment of Labour (Standing Orders) Act is in the following terms:
Provided that during the period of such suspension, a worker shall be paid by his employer a subsistence allowance equivalent to half of his average wages including dearness allowance, if any."
This relief can be given to a worker. The question is who is a worker. Standing Orders Act supplies the definition of a worker in section 2(v) which reads as under:
"worker' means any person including an apprentice employed in any shop, commercial establishment or industrial establishment to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person —
(i) who is employed mainly in a managerial or administrative capacity; or
(ii) who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature."
7. The next question is whether such worker is employed in any shop, commercial establishment or industrial establishment. The definition of ''commercial establishment" is given in section 2(d) and "industrial establishment" is defined in section 2(j) of Employment of Labour (Standing Orders) Act. The definitions are in the following terms:
2. (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
(iv) a factory as defined in the Factories Act; 1965."
8. The relief was claimed under the Standing Orders Act and, therefore, the parties must answer the description to whom such relief had been granted by such a definition. It will be noticed that the Industrial Relations Ordinance has not supplied any definition of "commercial establishment" or ''industrial establishment". Such definitions have been given only in the Standing Orders Act. It is obvious that the Dacca Improvement Trust does not answer the description either of the commercial establishment" or "industrial establishment" as given in the Employment of Labour (Standing Orders) Act, 1965. D. I. T. does not deal in any business of advertising nor it is a commercial agency nor it can be termed as a clerical department of factory nor it can be brought within the ambit of Joint Stock Company or anything of the like, It has not been shown either that Dacca Improvement Trust is an establishment in which articles are produced or manufactured with a view to their disposal by way of sale, etc. Hence the petitioner who is an employee of the D. I. T. cannot be termed as a worker of either any "commercial establishment" or "industrial establishment." On the other hand, the scheme of Town Improvement Apt shows that for the purpose of carrying out the provisions of that Act, a Board is to be formed called Dacca Improvement Trust and such Board shall be a body corporate and have perpetual succession and a common seal and shall by the same name sue and be sued. Thus a distinct legal entity has been created by the Act (sections 3).Sections 32,33,34,35 and 36 deals with the employees of the Board.
9. Section 35 provides, inter alia, for disciplinary action against such officer and employees and provides hierarchy of officers who are authorised to take such proceedings, to wit:
(a) in the case of posts, the maximum monthly salary of which does not exceed Tk. 1250/- excluding technical pay, if any and officers and employees holding such posts—by the Chairman.
(b) If the salary exceeds Tk. 1250/- by the Board
(c) In other cases—By Board subject to approval of the Government.
10. Section 36 specifically says that the Chairman shall exercise control over all the employees of the Board and subject to the foregoing sections shall dispose of all questions relating to their service of the employees and their pay, privileges and allowances. Section 37 authorises the Chairman to delegate certain function of his. It is, therefore, clear that the employees of the Dacca Improvement Trust have been treated by the law itself, that is, the Town Improvement Act. Section 34 of the Industrial Relations Ordinance provides for enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement. It is nobody's case that the respondent in this case is seeking for enforcement of any 'award' or settlement. The only question is whether he can enforce the provisions of the Standing Orders Act. Section 25 says an individual worker "who has a grievance in respect of any matter covered under this Act" and intends to seek redress thereof may apply. Section 2(v) defines ‘worker’ as has been noticed already.
All workers thus are not included and specifically the managerial staff has been excluded. Besides, the D. I. T not being a commercial or industrial establishment the respondent does not come within the meaning of 'worker' given in this definition. Since he cannot invoke the provisions of section 25 of the Standing Orders Act the remedy under section 34 of the Industrial Relations Ordinance, 1969 is not available. Such employees therefore cannot seek any of the privileges conferred to the workers under specific law, namely, Standing Orders Act. The sum total of the discussion is that the employee respondent cannot be termed as a worker under the Standing Orders Act, He is an employee of the Dacca Improvement Trust and his terms and conditions of service are regulated by the Act itself and the rules framed thereunder, in this view the invocation of section 18 of the Standing Orders Act was unjustified and any privilege that is being granted by that Act to the workers defined therein cannot be claimed by an employee of the Dacca Improvement Trust.
In the result, therefore, this appeal is allowed and the judgement and order of the High Court Division and the Labour Court are set aside, and the petition before the Labour Court dismissed. There will be no order as to costs.