Case No: Civil Appeal No. 80 of 1997
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Rokanuddin Mahmud,Mr. M Nurullah,,
Citation: 52 DLR (AD) (2000) 36
Case Year: 2000
Appellant: Karnaphuli Paper Mills Workers Union
Respondent: Karnaphuli Paper Mills Ltd. Employees Union
Subject: Labour Law,
Delivery Date: 1998-1-22
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
Bimalendu Bikash Roy Choudhury, J.
Karnaphuli Paper Mills Workers Union
Karnaphuli Paper Mills Ltd. Employees Union & another
January 22, 1998.
The Industrial Relations Ordinance, 1969 (XXIII of 1969)
The casual labourers supplied by the contractors are the employees of the contractors over whom the contractors have absolute control. Attendance sheet of those labourers is maintained by the contractors to whom they are responsible. The contractors are liable to compensate the KPM for any default of the workers and such labourers can not be termed as the workers of KPM. The terms of employment must establish a relationship of master and servant or an employer and employee between the person employed and establishment and it is not enough that a person is working in the premises of a certain establishment to bring him within the definition of a worker of any industry or establishment…………….(12)
Md. Nurullah, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record — For the Appellant.
Rokonuddin Mahmud, Senior Advocate, instructed by Shamsul Haque Siddique, Advocate- on-Record — For Respondent No. 1.
Not represented — Respondent No. 2.
AW Khandker, Senior Advocate, instructed by M Nawab Ali, Advocate-on-Record — For the added party.
Civil Appeal No. 80 of 1997
(From the judgment and order dated 7 July, 1996 passed by the High Court Division in Writ Petition No. 2109 of 1995).
Bimalendu Bikash Roy Choudhury J.
This appeal is directed against the judgment and order of the High Court Division in Writ Petition No. 2109 of 1996.
2. The relevant facts are brief and not in dispute. There are two registered trade unions in Karnaphuli Papers Mills, Ltd, briefly, KPM. One is Karnaphuli Paper Mills Workers Union (the Workers Union) and the other Karnaphuli Paper Mills Ltd Employees Union (the Employees Union), both duly registered with the Registrar of Trade Unions, Chittagong Division under the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance. The Employees Union was the collective bargaining agent of KPM on five terms, but on the last two terms the Workers Union was the collective bargaining agent. Their tenure having expired on 12 June 1995, the Employees Union filed an application with the Registrar of Trade Unions in accordance with section 22(2) of the Ordinance to hold election for determination of the collective bargaining agent (CBA). The Registrar, on receipt of the application, called upon KPM by a letter dated 21 June 1995 to submit a list of all workers employed in the establishment, excluding those whose period of employment in the establishment was less than three months or who were casual or badli workers, showing in respect of each worker his parentage, age, the section or department and the place in which he was employed, his ticket number and the date of his employment in the establishment as required under sub-section (5)(a) of section 22 of the Ordinance KPM supplied a list of 2607 workers in compliance therewith. It was accepted after a scrutiny by the Registrar. Accordingly, a list of voters for determining the CBA was prepared. Thereafter the Registrar sent a second letter dated 13 September 1995 to KPM, with a copy to the General Secretary of the Employees Union, requesting them to supply the names of the workers of the contractors. The Employees Union after having received the copy of the letter sent a letter on 14 September 1995 to the Registrar pointing out that the said second letter was untenable. In the meantime KPM supplied a list of contractors’ workers without giving parentage, age, the section or department, place of work, ticket number and the date of employment as required under sub-section (5)(a) of section 22 of the Ordinance. On the basis of the said list the Registrar prepared a further list of voters.
3. The Employees Union then preferred Writ Petition No.2 109 of 1995 calling in question the legality of the letter of the Registrar of Trade Unions, Chittagong, dated 13 September 1995 and the second voters list on the ground that the letter of the Registrar asking KPM to supply the list of contractor’s workers and enlistment of the Contractor’s workers as voters for determination of CBA were violative of the provisions of section 22(5)(a) of the Ordinance inasmuch as the said workers were not workers of KPM within the meaning of the Ordinance.
4. The Registrar of Trade Unions, Chittagong Division, (respondent No. 2), resisted the writ petition by filing an affidavit-in-opposition contending inter alia, that the contractors’ workers participated in the previous elections and, as such, they were competent to participate in the present election for determination of, CBA and that the provision of section 22(5)(a) of the Industrial Relations Ordinance, 1969 was directory and not mandatory.
5. Similar affidavit-in-opposition was filed by the Employees Union who was subsequently impleaded as a party to the writ petition by way of amendment. They added that the labourers employed by the contractors were the workers of KPM.
6. The learned Judges of the High Court Division considering Annexure “G” to the supplementary-affidavit of the writ petitioner where terms and conditions of the contractors’ workers were enumerated came to the conclusion that since the documents and papers of the Mills clearly showed that the contractors’ workers were all casual workers, they were debarred from being enlisted as voters for election of the CBA under the provisions of section 22(5)(a) of the Ordinance, and that inclusion of their names in the voters’ list Annexure “D” was unauthorised and without jurisdiction. Moreover, the contractors’ workers list showed that it was not prepared in accordance with requirements of section 22(5)(a) of the Ordinance, because the parentage, age, the section or department and the place in which each of the workers was employed and his ticket number and the date of his employment were not given in the said list.
7. The Workers Union then filed this appeal with leave against the judgment of the High Court, Division.
8. The decision of this appeal centres round the construction of section 22(5)(a) of the Ordinance which reads thus:
“(5) Every employer shall—
(a) on being so required by, the Registrar, submit to the Registrar a list of- all workers employed in the establishment, excluding those whose period of employment in the establishment is less than three months or who are casual or badli workers, showing in respect of each worker his parentage, age, the section or department and the place in which he is employed, his ticket number and the date of his employment in the establishment, and also as many copies of such list as may be demanded by the Registrar;”
9. The expression ‘worker’ occurring in this provision has been defined in section 2 (XXVIII) as “any person including an apprentice not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor to do any skilled, unskilled, manual, technical or clerical work whether the terms of employment be expressed or implied.” (emphasis added).
10. The learned Counsel for the appellant submits that the definition of worker as given in the Ordinance makes it palpably clear that the workers who were engaged in KPM through the contractors are also workers of the establishment as a relationship of employer and employee exists between them. Such employees are deemed to be the employees of the management. He also submits that the High Court Division upon a misconception of both law and fact erred in holding that the contractors’ workers are all casual workers and thus debarred from being enlisted as voters for election of the CBA under the provisions of section 22(5)(a) of the Ordinance. He adds that Annexure “G” to the supplementary affidavit of the writ petitioner was wrongly construed by the High Court Division holding that the contractors’ workers are all casual workers. The learned Counsel submits further that the High Court Division was wrong in deciding the matter by looking into only one work order, although there are 15 contractors mentioned in Annexure “D”. It is further argued that having regard to the definition of “worker,” in the Ordinance and the various documents and papers filed by the respondents in the writ petition as Annexures to their affidavits, the High Court Division ought to have held that the contractors’ workers are also eligible to become voters except those who are “casual or badli” workers.
11. The learned Counsel for respondent No. 1 (the Employees Union), on the other hand, contends that the decision of the High Court Division as to non-eligibility of the workers of the second list is substantially correct but he has stressed on the point that the said workers were not at all employees of KPM in view of the definition in section 2(XXVIII) of the Ordinance and true construction of their terms of employment. He elaborates his arguments saying that the incidence of employment of these workers with KPM are missing in the case. They were merely employed by the independent contractors personally. So they were not even casual or badli workers of KPM as held by the High Court Division.
12. Whether a person is a worker or not depends upon, the definition in section 2 (XXVIII) of the Ordinance vis-a-vis the terms of the agreement under which they are employed. No general proposition can be laid down to apply in all cases of workers working for an establishment or industrial organisation. The words ‘directly or through a contractor’ occurring in the definition mean that the employment may be by the management directly or through a contractor. In either case there has to be a contract of employment between the management and the person employed. Therefore, a worker, according to the definition is a person who enters into a contract of service under the management and does not include a person who works under the control and supervision of the contractor. In order to arrive at the conclusion, whether a person working in the establishment is a worker under the establishment or a worker under an independent contractor, that is, whether the employment is by and under the establishment through a contractor or by the independent contractor for the benefit of whom the employment is given, one has to look to the terms of employment. The terms of employment must establish a relationship of master and servant or employer and employee between the person employed and the establishment and it is not enough that a person is working in the premises of a certain establishment.
13. In the instant case, Exhibit ‘G’ is one of the standard work-orders under which the so-called casual labourers were supplied by the contractors. This includes the following terms:
“6. A sum of Taka 10,000.00 (Taka ten thousand) only deposited as security money will remain with the Company during the tenure of contract and will bear no interest.
7. The security deposit will be refunded after successful completion of the contract and fulfilment of obligation if any.
8. The contractor will submit bill fortnightly/monthly to the Controlling Department.
9. Payment will be made by account payee cheque on submission of the bill in triplicate in the proforma to be supplied by the enterprise.
11. The contractor will be responsible for compensation in case of injury or disability sustained by the labourers and staff working under the contractor in course of operation of works in accordance with the Workmen’s Compensation Act, 1953 and subsequent amendments thereof.
12. Labourers are not allowed to approach the management directly in any matter except the contractor himself or his authorised representative.
16. The contractor will have to remain personally present or keep his authorised supervisor in the working places during the whole working time for proper supervision and smooth running of the works.
17. The contractor shall have to maintain an office at a convenient place nearer to the factory site for efficient running of the contract.
18. The contractor must maintain particulars of labourers and an attendance register for reference of the enterprise as and when required.
19. That any loss which the company may incur in course of handling due to carelessness, negligence or willful commission of works on the part of labourers engaged by the contractor must be compensated by the contractors.
20. That the contractor will have to remove any or all labourers from the mill area in case of committing any misconduct/misbehaviour with the dealing staff and officers or creating chaos and indiscipline situation in the working place/mill and also found to be working against the interest of the Mills and suitable replacement will have to be made by the contractor as early as possible in order to avoid dislocation of works.
21. That in case of non-execution of any work partly or fully by the contractor, the company shall have the right to get the works done by any other means at the expenses of the Contractor."
14. The above terms leave no room for doubt that the so-called casual labourers supplied by the contractors are really the employees of the contractors over whom they have absolute control and supervision. They receive payment from the contractors. They are in the payroll of the contractors which is separately and independently maintained by the contractors themselves. Their attendance sheet is maintained by the contractors who are responsible for their discipline. They are hired and fired by the contractors on their own terms and conditions over which KPM has no control at all. The contractors are also liable to compensate KPM for any loss suffered by it for the negligence, carelessness or willful default of the workers. There is thus no contract of service between the labourers and KPM. So, these labourers cannot be termed as the workers of KPM.
15. The learned Counsel for the appellant raised a point that the High Court Division did not examine the rest of the work orders for supplying casual labourers and sweepingly jumped at the conclusion that they were all alike. But we do not find any substance in it since the appellant did not bring on record the other work orders and made no effort to prove that they were different. The appellant did not take any such stand before the High Court Division. We, therefore, uphold the decision of the High Court Division although on different ground.
In passing we may observe that the second list of voters really lacks in the particulars required under section 22(5)(a) of the Ordinance which is also an infirmity of the said list. The appeal is accordingly dismissed without any order as to costs.