Chairman, D. I. T and another Vs. Chairman, 2nd Labour Court and another, 34 DLR (AD) (1982) 37

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

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossain, CJ.
Fazle   Munim, J.
Ruhul Islam, J.
Badrul Haider Chowdhury, J.
 
Chairman, D. I. T and another
................................Petitioner
Vs.
Chairman, 2nd Labour Court and another
.............................. Respondents
 
Judgment
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.
 
Lawyers Involved:
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).
 
JUDGMENT
 
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:
 
"Both capital and labour are found organised therein for purposes commer­cial in nature. As such the DIT falls within the definition of both commer­cial and industrial establishments. More­over, when the DIT attracts the definition of an industry' as given in section 2(XIII) of the I.R.Q., the application under section 34 of that Ordinance for enforcement of any right guaranteed under 'any law' to a person who is a worker under the Industrial Relations Ordinance is quite maintainable."
 
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;
 
''That as per provision of section 18 of the Employment of Labour (S.O.) Act, 1965, the Second Party cannot keep him under suspension for more than 60 days and during this sixty days they must pay his subsistence allowance and after the expiry of 60 days if no decision is taken by the second parties within 60 days the First Party is entitled to get full salary. That the Second Parties have kept the First Party under suspension most illegally and without any lawful authority."
 
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:
 
"A worker charged for misconduct may be suspended pending inquiry into the charges against him and unless the matter is pending before any court, the period of such suspension shall not exceed sixty days;
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. (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 a 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, a 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;
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.
 
Ed.