Case No: Civil Appeal No. 20 of 1994
Judge: Mohammad Abdur Rouf ,
Court: Appellate Division ,,
Advocate: Dr. Rafiqur Rahman,MR. Shamsul Hoque Siddique,,
Citation: 48 DLR (AD) (1996) 62
Case Year: 1996
Appellant: Managing Director, Rupali Bank Ltd.
Respondent: Md. Nazrul Islam Patwary
Subject: Labour Law, Words and Phrases,
Delivery Date: 1995-06-18
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf, J.
Md. Ismailuddin Sarkar, J.
Managing Director, Rupali Bank Limited
Md. Nazrul Islam Patwary & others
June 18, 1995.
Employment of Labour (Standing Orders) Act (VIII of 1965)
The term “worker”, contemplates not only a person to be employed in the work for productive purposes in any commercial or industrial establishment, but also embraces a person who on being employed does any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the term of employment be express or implied. ….. (7)
Sections 19 & 25
The respondent though a worker his civil suit is maintainable as the proviso to section 25(1) does not provide him any scope for redress as the order of termination was not passed for trade union activity or for depriving him of benefits specified under section 19.… (7)
Dr. Rafiqur Rahman, Senior Advocate, (MA Baqui, Advocate, Supreme Court with him), instructed by Md. Aftab Hossain, Advocate-on-Record— For the Appellants.
Shamsul Haque Siddique, Advocate-on-Record— For Respondent No.1.
Not represented — Respondent Nos. 2-6.
Civil Appeal No. 20 of 1994
(From the judgement and order dated 27.1.1992 passed by the High Court Division in Civil Revision No. 3663 of 1991).
This appeal by the Managing Director of Rupali Bank defendant No. 1 by leave, is against the decision of the High Court Division, in Civil Revision No. 3663 of 1991, discharging the Rule on 27 January 1992, and upholding the judgment and decree passed by the District Judge, Noakhali on 28 April 1998 in Title Appeal No. 276 of 1987 affirming those dated 26 September 1987 passed by the Assistant Judge, Ramganj decreeing Title Suit No. 41 of 1986 and declaring thereby that the termination of employment of the plaintiff has been done illegally and without any lawful authority and that the plaintiff is still in the employment of the Rupali Bank.
2. Plaintiff-respondent No.1 while in service as a security guard of Rupali Bank was terminal from service by an order dated 15 September, 1981 by the Bank Management with termination benefits. He challenged the termination order in the aforesaid suit and got a decree which was challenged unsuccessfully in appeal before the District Judge and then in the High Court Division in revision. On behalf of the defendant, objection was raised as to the maintainability of the suit on the grounds, inter alia, that a security guard of the Bank clearly falls within the definition of “worker” under section 2(v) of the Employment of Labour (Standing Orders) Act, 1965, and that he cannot maintain any civil suit. learned Single Judge by the impugned judgment has maintained the trial Court’s decree, but has held that the plaintiff was not a “worker” at all within the meaning of section 2(v) of the Employment of Labour (Standing Orders) Act, 1965, shortly the Act, on the reasoning that “these classes of employee of the bank are not meant for productive purposes” and, as such, the suit was maintainable.
3. Leave was granted to consider as to whether the learned Single Judge of the High Court Division upon proper interpretation of the definition of the word worker” as defined in section 2(v) of the Act has correctly held that the suit was maintainable.
4. Dr. Rafiqur Rahman, learned Counsel appearing for the appellant, submits that the learned Single Judge of the High Court Division has misconstrued the meaning of “worker” as defined in section 2(v) of the Act inasmuch as the term ‘worker” does not contemplate only a person who is employed in any commercial or industrial establishment in connection with the work for productive purposes. The learned Counsel next submits that section 19 of the Act provides rights and corresponding obligations both for the employer and the employee regarding termination of service. In exercise of such right the Bank had terminated the plaintiffs service as its security guard giving him all the termination benefits he was entitled to thereunder. Thus the civil suit against such order of termination simpliciter was not maintainable for want of cause of action. Moreover, section 25 of the Act is a bar for maintaining a suit under section 9 of the Code of Civil Procedure.
5. Mr. Shamsul Haque Siddique, learned Advocate for the plaintiff-respondent, on the other hand, supports the impugned judgment and order contending, inter alia, that the High Court Division has rightly upheld the judgment and decree of the courts below.
6. With reference to the meaning of the term ‘worker’ we are of the view that the learned Judge has clearly fallen into an error importing qualification thereat of the person to be employed only with the work for productive purposes and holding thereby that the plaintiff having not been such a “worker” the suit was maintainable.
7. Rupali Bank is undoubtedly a commercial establishment and the plaintiff being a security guard his condition of service, in addition to the Bank Service Rules, Is also regulated under the provisions of the Act. The term “worker”, as is defined in section 2(v) of the Act does contemplate not only a person to be employed in the work for productive purposes in any commercial or industrial establishment, but also embraces a person who on being employed does any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the term of employment be express or implied. But a person does not come within the category of “worker” who is employed mainly in a managerial or administrative capacity: or 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. Considering the nature of work attached with the post of security guard of the appellant-bank, unhesitatingly it can be said that the plaintiff clearly comes within the definition of “worker” provided in section 2(v) of the Act, but having agreed with the main contention of Dr. Rafiqur Rahman, we find that the civil suit is yet maintainable in view of the fact that the proviso to section 25(1) of the Act does not provide him any scope for lodging any complaint seeking any redress thereunder, as the order of termination of employment of the plaintiff, although made under section 19 of the Act, was not passed for his trade union activities or did not deprive him of all the benefits specified in section 19 of the Act. Thus the argument of Dr. Rahman that section 25 stands as a bar to a civil suit against an order of termination simpliciter is not acceptable, in the facts and circumstances of the case.
8. Dr. Rahman’s next contention is that the plaintiff’s suit was also not maintainable for want of cause of action as the Bank in the impugned order of termination had expressly allowed him all his termination benefits. This question being related to the merit of the suit cannot be reopened at this stage, because the leave was granted only for a limited purpose, as already mentioned. Thus, for obvious reason, we are not inclined to enter into the merit of the case where the plaintiffs decree for setting aside the order of termination on merit has been upheld upto the High Court Division.
As a result, the appeal is dismissed with costs.