Government of Bangladesh Vs. Hasan Movies Ltd. and others, 48 DLR (AD) (1996) 40

Case No: Civil Appeal No. 39 of 1991

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,,

Citation: 48 DLR (AD) (1996) 40

Case Year: 1996

Appellant: Government of Bangladesh

Respondent: Hasan Movies Ltd.

Subject: Labour Law,

Delivery Date: 1995-6-28

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Latifur Rahman J
Md. Abdur Rouf J
Md Ismailuddin Sarker J
 
Government of Peoples Republic of Bangladesh represented by the Secretary Ministry of Labour and Manpower. Bangladesh Secretariat Dhaka
……………… Appellant
Vs
Hasan Movies Ltd. and others
……………………Respondents
 
Judgment
June 28th, 1995.
 
Bangladesh Service Rules
Rule 5(57)
Fundamental Rules
FR 9(32)
“Travelling Allowance”— It varies upon the circumstances of each journey undertaken by an employee. …. (5)
 
Minimum Wages Ordinance (39 of 1961)
Section 2 (8)(6)
“যাতায়াত ভাতা”  cannot be treated as “travelling allowance” within the meaning of this provision of Law and a such the impugned judgment needs to be modified. …(6)
 
Lawyers Involved:
AW Bhuiyan, Additional Attorney-General instructed by B Hossain Advocate on Record-for the Appellant.
Ex-parte—Respondents.
 
Civil Appeal No. 39 of 1991.
(From the Judgment and order dated, 27 August 1 passed by the High Court Division, Dhaka, in Writ Petition No. 674 of 1987).
 
JUDGMENT
Md. Abdur Rouf J:
 
This appeal by leave at the instance of the Government is against the judgment and order dated 27 August 1989 passed by the High Court Division in Writ Petition No. 674 of 1987 and eight others which were heard analogously and disposed of by a common judgment. Different cinema halls moved those Writ Petitions and obtained Rules calling in question the acceptance by the appellant the award given by the Minimum Wages Board (hereinafter referred to as” the Board”) under section 5(1) of the Minimum Wages Ordinance, 1961 hereinafter referred to as “the Ordinance” in respect of the different categories of workers of the Cinema Halls in Bangladesh as contained in the Notification dated 1st August, 1987 being SRO No. 158.L187/Sha-10/ Nimna-19/87 and published in the Bangladesh Gazette Extraordinary. The High Court Division while discharging the Rules on contest, by the impugned judgment made an observation with regard to “যাতায়াত ভাতা”   as awarded by the Board terming the same as “travelling allowance” to the effect that section 2(8)(b) of the Ordinance did not empower the Minimum Wages Board to fix any such “travelling allowances” and as such the recommendation made by the Board for “travelling allowance” of Tab 40.00 per month has been made without any lawful authority and is of no legal effect.
 
2. Leave was granted to consider as to whether the learned Judges of the High Court Division upon proper interpretation of the term “যাতায়াত ভাতা”  as ‘travelling allowance’ legally declared that in view of the provision of section 2(8) (b) of the Ordinance the recommendation of the Board for such allowance was made without lawful authority and of no legal effect.
 
3. Mr. AW Bhuyan, learned Additional Attorney-General appearing for the appellant submits that the High Court Division is not correct in taking “যাতায়াত ভাতা”  as recommended by the Board for the Cinema Hall workers and accepted by the Government as “Travelling allowance” which means “ভ্রমণ ভাতা”  in Bengali; “ভ্রমণ  ভাতা”  does not fall within the section 2(8)(b) of the Ordinance. Mr. Bhuiyan submitted that such observation of the High Court Division in the impugned judgments has caused prejudice to the concerned workers and to that extent the impugned judgment needs to be modified.
 
4. A short question is to be answered in this appeal, whether by” “যাতায়াত ভাতা”  is meant “Travelling allowance”.
 
5. The relevant provision of section 2(8)(b) of the Ordinance runs as follows:
 
“2………………………..
…………………………..
(8) ‘Wages’ means all remuneration capable of being expressed in terms of money, which would, if the terms of contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, but does not include—
(a)………………………………..
(b) any travelling allowance or the value of any travelling concession:
(c)………………………………
(d)……………………………..
(e)…………………………….
The relevant recommendation of the Board was made as hereunder (quoted at page 50 of the paper book in annexure ‘c’ to the writ petition):  বিশেষ দ্রঃ প্রান্তিক ভাতা বলিতে বুঝায় ১। বাড়ি ভাড়া ---- ৩০% মূল মুজুরির ২। চিকিৎসা ভাতা ---- ১০০ টাকা মাসিক ৩। যাতায়াত ভাতা ৪০ টাকা মাসিক।
Neither in the Ordinance nor in the relevant Rules, as framed thereunder, the term “Travelling allowance” has been defined. However, ordinary dictionary Bengali meaning of the term is ‘bhoromon bhata
 
The concept of “travelling allowance” can be appreciated from the different’ Service rules of the Government, Semi-Government, Autonomous Organisations of the State. Under Chapter II, Part I, of Bangladesh Service Rules (BSR) in Rules 5(57) the term has been defined as hereunder:
 
“Travelling allowance means an allowance granted to a Government servant to cover the expenses which he incurs in travelling in the interest of the public service. It includes allowance granted for the maintenance of conveyances, horses and tents.”
 
The same definition is also found in the Fundamental Rule. FR 9 (32). Thus the quantum of “travelling allowance” varies upon the circumstances of each journey to be undertaken by a particular employee in the discharge of his duties.
 
6. In the instant case the Board had recommended a fixed amount of Tab 40.00 per month as “যাতায়াত ভাতা”  to all workers of the Cinema Halls irrespective of their rank and status as a part of the fringe benefit along with the house rent and medical allowances, which has been accepted by the appellant by the impugned notification. Thus in the facts and circumstances of the case the said “যাতায়াত ভাতা”  cannot be treated as “travelling allowance” within the meaning of section 2(8)(b) of the Ordinance and, as such, to that extent only the  impugned judgment of the High Court Division needs to be modified in the interest of justice.
 
As a result the appeal is allowed without any order as to costs. The judgment of the High Court Division stands modified only to the extent as mentioned above.
 
Ed.