Case No: Civil Appeal No. 123 of 1978
Judge: K.M. Subhan,
Court: Appellate Division ,,
Advocate: Aminul Huq,Mr. Asrarul Hossain,,
Citation: 32 DLR (AD) (1980) 165
Case Year: 1980
Appellant: General Manager, Bangladesh Cable Shilpa Ltd.
Respondent: Chairman, Labour Court
Subject: Labour Law, Words and Phrases,
Delivery Date: 1979-4-4
Kemaluddin Hossain CJ
K. M. Subhan J
Badrul Haider Chowdhury J
General Manager, Bangladesh Cable Shilpa Ltd.
Chairman, Khulna Labour Court and others
April 4, 1979.
The Factories Act, 1965
Security employees of the factory filed the case for remedy as workers. The definition of worker and manufacturing process clearly reveals that unless a person is able to identify his duty as relatable to the definition, he cannot, just because he is employed in a factory, become a worker within the definition. The determination of the status of "workers" is dependent upon the nature of their duty…………(7)
Asrarul Hossain, Senior Advocate, (Khalilur Rahman, Advocate with him) instructed by Aminul Huq, Advocate-on-Record—For the Appellant.
Bazlur Rahman Talukdar, Advocate, instructed by Shahabuddin Ahmed, Advocate-on-Record—For Respondents Nos. 2, 6-8 & 10-18.
Civil Appeal No. 123 of 1978.
(From the judgment and Order dated 3.1.78 passed by the High Court Division in Writ Petition No. 10 of 1978).
This appeal by special leave is from the judgment of the High Court Division passed in Writ Petition No. 10 of 1978. The appellant, the General Manager, Bangladesh Cable Shilpa Ltd. is the employer who filed a petition under Article 102 of the Constitution challenging the judgment and order dated 8th November, 1977, passed by the Labour Court, Khulna in Industrial Relations Ordinance Case No. 35 of 1977.
2. In the Writ Petition it was contended by the appellant that it has its factory premises at Khulna and respondent Nos. 2-19 are employed in the security department of the appellant, who filed a case under section 34 of the Industrial Relations, Ordinance, 1969 hereinafter referred to as I.RO. In the said application respondent Nos. 2-19 stated that they are "workers" within the meaning of section 2 (XXVIII) of the IRO and that their service conditions are controlled by the Factories Act and shops and Establishment Act, 1965, as well as by the IRO. They are, therefore, entitled to the benefits under those Acts of which they were deprived by the appellant illegally. Respondent Nos, 2-19 stated that they are entitled to three days' compensatory leave for their working on any festival holiday as provided under sections 79 and 51 of the Factories Act, 1965, but they were allowed only two days compensatory leave for working on each festival holiday. Those respondents are, therefore, entitled to the balance of one day's compensatory leave for each festival holiday on which they worked. Second demand of those respondents is that they are required to work 48 hours in a week while other officials and staff of the appellants work for 44 hours in a week and, accordingly, they are entitled to get 4 hours' overtime allowance per week since their appointment.
3. The appellant contested the said case before the Labour Court and its plea inter alia is that those respondents were not 'workers' within the meaning of the Factories Act and their service conditions were controlled by the provisions of the Shops and Establishment Act. They were rightly allowed 2 days' compensatory leave for working on each festival holiday under the Shops and Establishment Act and as such their claim was misconceived. Those respondents were also not entitled to get overtime allowance for 4 hours per week, although, other officials and staff worked for 44 hours in a week.
4. Both the parties led evidence before the Labour Court and produced papers in support of their respective contentions. The Labour Court held that those respondents were entitled to three days' compensatory holidays for working on each festival holiday under the provisions of Industrial Relations Ordinance. The second prayer of those respondents for allowing overtime allowance for 4 hours per week for working 48 hours was rejected.
5. The learned Judges of the High Court Division summarily rejected the said Writ petition holding concurrently that the Security Guards being in the category of Sweeper and Mali and having been treated by the management "workers" under the Factories Act are controlled by the Factories Act and, accordingly are entitled to 2 days' compensatory holiday with pay and also one substituted holiday with pay under section 79 read with section 51 of the Factories Act and not two days' festival holiday under section 3(2) of the Shops and Establishment Act, 1965.
6. Leave was granted by this Court to consider whether the Security Guards come within the definition of workers as given in the Factories Act. The second ground on which leave was granted is whether individual grievance of a worker can be termed as Indus-trial dispute to make an application under section 34 of the Ordinance competent.
7. Mr. Asrarul Hossain the learned Counsel appearing on behalf of the appellant has submitted that the second ground on which leave has been granted will be redundant for decision if he does not succeed in the first ground for which leave has been granted. Mr. Asrarul Hossain has placed the definition as given in section 2 of worker under "the Factories Act. He has also placed the definition of manufacturing process as given in section 2(h) of the said Act. Mr. Hossain contends that the respondents though were employed to work in the factory but they were not directly employed in any manufacturing process or in any other kind of work incidental to or connected with the manufacturing process or the subject of the manufacturing process. Mr. Hossain has, on reliance upon the evidence of those respondents, submitted that those respondents have not exhibited the nature of the duties before the Labour Court and in the absence of the specification of nature of their duty it is an error to hold that they are workers. The definition of worker and manufacturing process clearly .reveals that unless a person is able to identify his duty as relatable to the definition, he cannot, just because he is employed in a factory, become a worker within the definition. The absence of the details of the nature of their duties has created difficulty in holding that those respondents are "workers" within the meaning of the Factories Act. The determination of the status of "workers" is dependent upon the nature of their duty the respondents discharge in their jobs as "security guards."
The appeal, therefore, is allowed without any order as to costs and the matter is remitted to the Labour Court with liberty to the parties to adduce such evidence as they think necessary.