Md. Abu Bakkar Siddique Vs. Government of Bangladesh & ors., (Syed Refaat Ahmed, J.)

Case No: Writ Petition No. 2729 of 2018

Judge: Syed Refaat Ahmed, J And Md. Iqbal Kabir, J

Court: High Court Division,

Advocate: Mr. Rokanuddin Mahmud, Senior Advocate with Mr. Md. Bodruddoza, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2019

Appellant: Md. Abu Bakkar Siddique and others

Respondent: Government of Bangladesh and others

Subject: Labour Act

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Syed Refaat Ahmed, J

And

Md. Iqbal Kabir, J

 

Judgment on

11.02.2019

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Md. Abu Bakkar Siddique and others

. . .Petitioners

-Versus-

Government of Bangladesh and others

. . .Respondents

Labour Act (XLII of 2006)

Section 3A

Outsourced employment in the Airtel Case and the Khandaker Razib Case leads this Court to find that outsourcing is not a procedural or administrative aberration but is a legally sanctified mainstream mode of hiring. A careful study has been undertaken by this Court of the GTCL Service Regulations, along with amendments thereto and its Schedule, the relevant provisions of the Outsourcing Guidelines, 2008 and the successor Guidelines of 2018 and the set of circulars issued by the Ministry of Finance on 25.8.2013 and 27.1.2016. These rules and regulations collectively convince this Court of the propriety and legality of GTCL’s reliance on the outsourcing mechanism of engaging workers as the Petitioners and their continued employment as such under full legal cover. A proper reading of the Outsourcing Guidelines, 2018 given effect from 1.1.2019, which is read as a consolidating exercise and intended to have a broad base application, leaves no scope for debate or confusion that the Guidelines bring within their ambit the outsourced hired services like drivers. Both on the grounds of maintainability and substantive soundness of the Petitioners’ case this Court, therefore, remains wholly disinclined to a favourable consideration of the Rules Nisi.  It is noted additionally that this Court’s initial Order of Status Quo was modified by the Appellate Division by its Order of 14.5.2018 enabling the Writ Respondents to follow the usual terms and conditions to deal with the service of the Writ Petitioners henceforth. Given the terms of our findings above and the outcome declared above, we see no discordance with our substantive findings and findings and the effect of the Appellate Division’s Order of 14.5.2018, thereby, enabling GTCL to henceforth continue to engage the Petitioners according to the terms and conditions of service as envisaged in the Outsourcing Agreement already executed between GTCL and Blue-Star Services. That position finds endorsement in practice by Clause 4(C) of the Outsourcing Agreement as previously discussed and indeed Clause 33 of the said Agreement declaring the drivers hired from Blue-Star to be treated as employers of Blue-Star alone with incidences of such employer-employee relationship between Blue-Star and the Petitioners clearly stipulated elsewhere in the said Agreement.   ...(35 to 38)

Sheikh Abdus Sabur Vs. Returning Officer and others 41 DLR (AD) 1989 Para 29; Kartic Das Gupta Vs. Election Commission of Bangladesh and others 8 ADC 578; Airtel Bangladesh Limited Vs. the Chairman, First Labour Court, Dhaka 19 BLC (2014) 517; Sharmeen Annie Vs. First Labour Court, Dhaka and another, Grameenphone Limited Vs. the Chairman, First Labour Court, Dhaka and Khandaker Razib and others Vs. Government of Bangladesh represented by the Secretary, Ministry of Water Resources and others ref.

Mr. Rokanuddin Mahmud, Senior Advocate with

Mr. Md. Bodruddoza, Advocate

… For the Petitioners

Mr. Murad Reza, Advocate with

Mr. Mejbahur Rahman, Advocate

Ms. Samia Afroz Khan, Advocate

Ms. Sayeda Silma Tamanina, Advocate and

Ms. Saida Sharmin Esha, Advocate

. . . For the Respondent No.4

Ms. Kazi Zinat Hoque, DAG with

Mr. Shaikat Basu, AAG and

Ms. Nazma Afreen, AAG

   … For the Respondents

JUDGMENT

Syed Refaat Ahmed, J: This Rule Nisi was issued on 25.2.2018 calling upon the Respondents to show cause as to why the failure of the Respondents in causing publication of advertisement in the national dailies for direct recruitment in the post of Driver under the Gas Transmission Company Limited (“GTCL”) should not be declared to be of no legal effect and why the Respondents should not be directed to give priority to the Writ Petitioners in the process of fresh recruitment/appointment in the post of Driver of GTCL relaxing their age limit and/or pass such other or further Order or Orders as to this Court may seem fit and proper.

2.                Well into these proceedings, and at the instance of this Court, the sixty-six Petitioners filed an Application for impleading as Added Respondent No. 13 an entity named Blue-Star Services as operates as an “outsourcing company” in the facts. That Application was allowed on 24.10.2018 given that inter alia the particular entity Blue-Star Services executed an “Outsourcing Agreement” with GTCL and this Court arrived at the preliminarily satisfaction that its presence as a necessary party in these proceedings would indeed facilitate a more effectual and complete adjudication of all questions and issues in this Writ Petition, thereby, avoiding a multiplicity of proceedings.

3.                The Petitioners filed this Writ Petition challenging the failure of GTCL to advertise in the national dailies the direct recruitment of drivers according priority to the Petitioners in the consequential process of fresh recruitment/appointment of drivers under GTCL.

4.                GTCL is a subsidiary company of Bangladesh Oil, Gas and Mineral Corporation (hereinafter referred to as “Petrobangla”), and is a hundred percent government owned company. GTCL was registered on 14.12.1993 under the Companies Act, 1913 as a public limited company. GTCL was formed with the objective of establishing a balanced and reliable national gas transmission network with effective and unified control to ensure transportation of required gas for meeting the increasing gas demand in the country. GTCL commenced its formal operation on 23.1.1994 and subsequently started its commercial business from March, 1994.   

5.                GTCL, like all other subsidiary companies of Petrobangla, is governed by the provisions of its own employment regulations being the Service Regulations, 1996 (as amended in 2005) as approved by Petrobangla for its subsidiary companies during its 352nd Board Meeting held on 06.06.2005 and later adopted by GTCL.

6.                A sheet anchor of the Petitioners’ case is Serial No. 25 of the Schedule of the Service Regulation (the Schedule, itself being amended in 2015). The Schedule specifies the process and qualifications for appointment to listed posts with Serial No. 25, in particular, signifying the post, qualification and experience of drivers, technicians, junior transport supervisers, junior plant operators and similar posts and spelling out the process of such appointments. The Petitioners, however, take issue with and challenge the veracity and authenticity of a perceived appendage to the Schedule identifying “Outsourcing Posts” and enumerating eight posts, inclusive of drivers, whose appointments will be on outsourcing basis. Explained further in this appendage is the fact that as per the 292nd and 317th GTCL Board Meetings held on 28.12.2011 and 19.12.2012 respectively provision has been made on a limited scale in the institutional framework or organogram for inter alia for only six permanent posts for drivers. The Petitioners consider this entry to be an aberration wholly contradictory to and in negation of the tenor and purport of the entries and listing under Serial No. 25 of the Schedule. They further allege the resort to subterfuge in including the “Outsourcing Posts” list at the very end of the Schedule in a manner as is mala fide and illegal.

7.                The Respondents for their part allege at this juncture that the Writ Petitioners suppressing this very significant part of the Schedule regarding outsourcing filed the instant Writ Petition. They, accordingly, maintain that GTCL obtained service from the Writ Petitioners wholly in accordance with the provisions of the Service Regulations. Here they draw this Court’s attention to Regulation No. 55(1) of the Service Regulations as states that

Ò55-     (1)t- †hB †¶‡Î GB cÖweavbgvjv Abymi‡Y Amyweav †`Lv †`q, †mB †¶‡Î †Kv¤úvbx †ev‡W©i wm×všÍ Abyhvqx D³ wel‡q cÖ‡hvR¨ ev AbymiYxq c×wZ wba©vib Kwi‡Z cvwi‡eb|

(2) GB cÖweavbgvjvq †Kvb wel‡q my¯úó I mywbw`©ófv‡e D‡jøL bv _vwK‡j A_ev Dnv cÖ‡qv‡M Amyweav †`Lv w`‡j ‡mB †¶‡Î miKvix wbqg/wewa A_ev kªg I wkí AvBb cÖ‡qvM Kiv hvB‡Z cv‡i, Ges D³ cÖweavbgvjvi mv‡_ mswkøó †Kvb wel‡q miKvi KZ©„K mgq mgq RvixK…Z Av‡`k/wb‡`©k/ms‡kvabx †Kv¤úvbx †evW© Gi Aby‡gv`bµ‡g GB cÖweavbgvjvq AšÍ©fy³ ewjqv Mb¨ Kiv hvB‡e|

(3)  eZ©gv‡b ‡Kv¤úvbx mg~‡n †h mKj my‡hvM myweav we`¨gvb iwnqv‡Q, Dnv envj ivLv hvB‡Z cv‡i| Z‡e, kZ© _v‡K †h, GB cÖweavbgvjv Kvh©Kix nBevi ci cÖ‡hvR¨ †¶‡Î cÖ‡qvRbxq ms‡kvab, cwieZ©b, cwiea©b ev mggv‡bi wm×všÍ †Kv¤úvbx †evW© MÖnY Kwi‡Z cvwi‡e|

8.                Therefore, the Respondents argue, whenever there is any difficulty in following/applying any of the provisions under the Service Regulations GTCL is empowered, as per decision taken in Board Meeting, to issue orders, general or special, determining the method to be applied or followed in dealing with the said difficulty and, thereby, to operate flexibly albeit within the bounds of the law. 

9.                GTCL’s authority and discretion to act in this regard is also notably hedged by a set of guidelines issued by the Ministry of Finance termed ÒAvDU‡mvwm©s (Out Sourcing)Gi gva¨‡g Ò‡mev MÖnY bxwZgvjv, 2008Ó on 07.08.2008 (Outsourcing Guidelines, 2008), the relevant clauses of which are as follows:

2|     msÁv-welq wKsev cÖm‡½i cwicwš’ wKQz bv _vK‡j, G bxwZgvjv-

(K)  ÒKZ©„c¶Ó ej‡Z †mev MÖnYKvix ms¯’vi wb‡qvM wewa‡Z ewY©Z wb‡qvMKvix KZ…©c¶ eySv‡e| cÖK‡íi ‡¶‡Î cÖK‡íi wcwc/wWwcwc/wUGwcwc‡Z ewY©Z wb‡qvMKvix KZ…©c¶ eySv‡e;

(L)   Ò¯^xK…Z cÖwZôvbÓ ej‡Z miKvi ev miKvi KZ©„K cÖ`Ë ¶gZvm¤úbœ †Kvb cÖwZôvb KZ©„K Aby‡gvw`Z †iwRóªvW© cÖwZôvb eySv‡e;

(M) Òwb‡qvMwewaÓ ej‡Z †mev MÖnbKvix KZ©„c‡¶i Rb¨ cÖ‡hvR¨ wb‡qvM wewagvjv/cÖweavbgvjv eySv‡e|

3|           ‡mev MÖn‡bi †¶‡Ît

AvDU‡mvwm©s (Out Sourcing) Gi gva¨‡g †mev MÖn‡bi †¶‡Î wb‡b¥v³ welq¸‡jv Abymib‡hvM¨ n‡et

(K)    AvDU ‡mvwm©s Gi gva¨‡g †h me c‡`i wecix‡Z †mev MÖnY Kiv n‡e Hme c‡`i gva¨‡g †mev MÖn‡Yi welqwU mswkøó wb‡qvM wewa‡Z Ges cÖK‡íi †¶‡Î cÖKí wcwc/wWwcwc/wUGwcwc‡Z my¯úófv‡e D‡jøL _vK‡Z n‡e;

(L)     ‡h mg¯Í c` AvDU‡mvwm©s Gi Rb¨ wPwýZ †m mKj c‡` ¯’vqx, A¯’vqx ev mvgwqK †Kvbiƒc wb‡qvM †`qv hv‡e bv;

(M) ms¯’vcb gš¿Yvjq Ges A_© wefv‡Mi m¤§wZµ‡g †h †Kvb ms¯’v AvDU †mvwm©s Gi gva¨‡g †mev MÖnY Ki‡Z cvi‡e;

(N)   KZ©„c¶ cÖ‡qvRb g‡b Ki‡j AvDU‡mvwm©s Gi gva¨‡g Z…Zxq I PZz_© †kªYxi †h †Kvb c‡`i †mev MÖn‡Yi
cÖ¯Íve cÖkvmwbK gš¿Yvj‡qi gva¨‡g †cÖiY Ki‡Z cvi‡e;

4|           ‡mev MÖn‡Yi †gqv`t-

‰`wbK/gvwmK/evrmwiK wfwˇZ cÖwZ‡hvMxZvgyjK g~‡j¨ ¯^xK…Z cÖwZôvb n‡Z †mev MÖnb Kiv hv‡e|

. . .

7|           ‡mev MÖn‡Yi kZ©t-

AvDU‡mvwm©s (Out Sourcing) Gi gva¨‡g †mev MÖn‡Yi †¶‡Î,

(K)  ‡Kvb e¨w³ we‡k‡li mv‡_ KZ©„c‡¶i Pzw³ (Contract) n‡e bv| ¯^xK…Z cÖwZôv‡bi mv‡_ Pzw³ m¤úvw`Z n‡e| †Kvb e¨w³i bv‡g wb‡qvMcÎ Bmy¨ Kiv hv‡e bv;

(L)   AvDU †mvwm©s Gi c`¸wj wK ai‡bi n‡e, Gi wb‡qvM †hvM¨Zv, eqm, kvixwiK/gvbwmK my¯’Zv BZ¨vw` c` m„wói wR,I-‡Z my¯úófv‡e D‡jøL Ki‡Z n‡e| †Kvb †¶‡Î wR,I-‡Z G¸‡jvi D‡jøL bv _vK‡j wb‡qvMKvix KZ©„c¶ Abyiæc c` i‡q‡Q Ggb †Kvb wb‡qvM wewagvjv Ges GZ`wel‡q miKvi KZ©©„K Aby‡gvw`Z/RvixK…Z wb‡`©kbv AbymiY K‡i wb‡qvM †hvM¨Zv wba©vib Ki‡Z n‡e;

(M) ‡h mKj c‡`i wecix‡Z †mev MÖnY Kiv n‡e †m mKj c‡`i Rb¨ ms¯’vcb gš¿Yvjq I A_© wefv‡Mi m¤§wZmn A_© wefvM KZ©„K c„ôvswKZ wR, I _vK‡Z n‡e;

(N) c` m„wói wR,I-‡Z msL¨vK c` AvDU †mvwm©s Gi Rb¨ m„wó Kiv n‡e Zvi AwaK †jvKe‡ji ‡mev AvDU †mvwm©s Gi gva¨‡g MÖnY Kiv hv‡e bv|

(O) WªvBfv‡ii †mev AvDU †mvwm©s Gi gva¨‡g MÖn‡Yi †¶‡Î Mvoxmn WªvBfv‡ii †mev MÖnY‡K AMÖvwaKvi cÖ`vb Ki‡Z n‡e;

(P)  AvDU †mvwm©s Gi gva¨‡g †mev MÖn‡Yi †¶‡Î miKvi KZ©„K mg‡q mg‡q RvixK…Z AvBb, wewagvjv, wb‡`©kbv BZ¨vw` AbymiY‡hvM¨ n‡e|

(Emphasis added by this Court)

10.            Pausing here to decipher the salient features of the Outsourcing Guidelines, 2008 this Court distils the following as most relevant in the facts:

                    i.            The identification of a “Service Recipient” appointing authority and a duly registered institutional service provider identified as a “Recognized Institution”;

                  ii.            Services to be procured through outsourcing must be specified as such in the Service Recipients’ service regulations (akin, therefore, to the Service Regulations, 1996 in the instant case);

                iii.            Outsourced services are to be treated as a distinct genre of service and are not to be termed additionally as “permanent”, “temporary” or “periodic”;

                 iv.            Procurement of outsourced services is mandatorily to be governed by bilateral contracts institutionally entered into by the Service Recipient appointing authority (akin to GTCL in the instant case) and the service providing Recognized Institution (akin to Blue-Star Services in the instant case) with an express absolute prohibition on the issuance of appointment letters to any individual (the prohibition is, therefore, of any contractual privity established between a Service Recipient appointing authority and an individual worker/hired service);

                   v.            Drivers constitute a notable category of outsourced hired services; and

                 vi.            Employment generated through outsourcing shall remain governed by laws, rules and guidelines etc. issued periodically.    

11.            In the facts, GTCL as per Office Order no. 179 /2016 dated 18.12.2016 and following the Public Procurement Act, 2006 and Public Procurement Regulations, 2008 and, most importantly, the Outsourcing Guidelines, 2008 entered into a contract or Outsourcing Agreement with Blue-Star Services (service provider/contractor) for hiring drivers on outsourcing basis. The preeminently relevant clause of the Agreement between GTCL and Blue-Star reads as follows:

aviv-4 (M)t ‡Kvb e¨w³ we‡k‡li mv‡_ KZ©„c‡¶i Pzw³ nB‡e bv| ïaygvÎ wbe©vwPZ Rbej mieivnKvix cÖwZôv‡bi mv‡_ Pzw³ m¤úvw`Z nB‡e| †Kvb e¨w³i bv‡g wRwUwmGj KZ…©K †Kvb wb‡qvM cÎ Bmy¨ Kiv nB‡e bv|

12.      That provision being Clause 4(C) translates into providing that there will be no contract of employment with any individual but that such contracts shall be with a human resource supplier institution, i.e., a Recognized Institution. The Clause consequentially expressly rules out any possibility of GTCL issuing any appointment letter to any driver hired on an outsourcing basis.  

13.         Therefore, consonant with the salient elements of the Outsourcing Guidelines, 2008 in particular and as reflected in clause 4 of the Outsourcing Agreement, the Writ Petitioners were hired through Blue-Star Services. GTCL did not issue any appointment letter to any of the Writ Petitioners rather executed the Agreement with Blue-Star to hire drivers purely on an outsourcing basis.

14.         The entrenched practice of hiring drivers through the outsourcing mechanism is further solidified by the Ministry of Finance’s circular of 27.01.2016 determining the national pay scale for outsourced posts including drivers as falls under grade 16. It is asserted that GTCL following the said circular accordingly determined the salary and other benefits of its own outsourced drivers like the Petitioners. It is at this juncture that GTCL’s learned Advocate, Mr. Murad Reza has taken us through the contractual minutiae that further project the three-tiered interests involving the Service Recipient appointing authority GTCL, the Recognized Institutional Service Provider Blue-Star Services and the hired drivers. That notwithstanding, the outsourcing contractual régime is one that ensures that privity of contract is established purely between the institutional appointing and service providing authorities to the exclusion wholly of the hired workers (in this case the drivers). The outcome is that the hired workers remain within the ambit of employment by the service provider only.

15.         Mr. Murad Reza explains that as per the 2016 circular issued by the Ministry of Finance and as per the Outsourcing Agreement between GTCL and Blue-Star, Blue-Star issues bill for the salary and benefits drivers hired on outsourcing and, accordingly, GTCL pays 10.98% of the total money as commission to the outsourcing company, Blue-Star. Furthermore, emphasized aptly by particular reference to clause 33 of the Outsourcing Agreement between GTCL and Blue-Star is that the drivers hired from Blue-Star are treated as employees of Blue-Star. Mr. Reza emphasizes that since GTCL as per the Service Regulations, the circular of the Ministry of Finance and the Outsourcing Agreement with Blue-Star hired the Writ Petitioners, there is no illegality or violation of any such regulation or law in whatsoever manner. Furthermore, he argues that there is no mandatory provision in any regulation or law requiring GTCL to resort to direct recruitments for the post of driver through advertisements as contended and claimed by the Petitioners. GTCL, in particular, emphasises that the Petitioners were hired as outsourced employees through the added Respondent No. 13, Blue-Star service provider. The Petitioners were not appointed by GTCL. GTCL never issued any appointment letters to the Petitioners. The certificates which the Petitioners annexed with the Writ Petition were issued by GTCL certifying the Petitioners’ skills as drivers but are definitely not an attestation of their claimed status of employees appointed by GTCL.

16.         The Petitioners cite an earlier instance of certain “outsourcing drivers” being eventually engaged by GTCL as employees on a daily basis leading further to their status being regularized in GTCL’s regular manpower set-up. It is in this context that the Petitioners draw attention to the Schedule of the Service Regulations which, at Serial No. 5, spells out the post, qualification and experience of “Drivers” and the process of appointment to that post. It is contended that the Respondents, however, for reasons best known to them, have in avoidance of that provision been appointing drivers only on an outsourcing basis ostensibly, therefore, in violation of the Service Regulations.

17.         GTCL being an enterprise of the Respondent No. 2, Petrobangla, it is the Petitioners’ contention that like other Petrobangla entities GTCL is not appointing its drivers through a direct recruitment process. Here, the Petitioners seek to draw parallels with the experience of yet another Petrobangla enterprise, Titas Gas ‘T’ and ‘D’ Company Ltd. (“Titas”). The Titas episode, born out of unique circumstances and as judicially sanctioned, involved the claims of outsourced drivers to be recruited directly by Titas. Titas’ recruiting process come under judicial scrutiny when a group of outsourced drivers, among others, filed Writ Petition No. 1406 of 2013 challenging a Titas Board decision by which the Board in reversal of an earlier decision refused to issue interview cards to existing outsourced drivers. This Court eventually made the Rule absolute on 9.7.2013 setting aside the impugned Board decision. Certain observations addressed by the Court to Titas met with initial resistance from the Titas administration. This led to a Review Petition filed by the Petitioners in that case wherein a Rule was issued and ultimately made absolute.

18.         In a Leave petition filed against the judgment passed in the Review Petition, the Appellate Division maintained the judgment of the High Court Division with modification. The Petitioners submit that pursuant to the Judgments and Orders of the High Court Division and the Appellate Division in the Titas Case, that company has recruited its previously outsourced drivers on a priority basis. The present Petitioners citing grounds of parity of status and equality of treatment with their Titas counterparts for being employees of a Petrobangla entity now claim to a similar entitlement to be recruited directly. Consequentially, by the Petitioners’ reckoning, the Respondents’ failure to fill up the vacant posts of drivers under GTCL by way of direct recruitment is liable to be declared to be of no legal effect with a direction issuing from this Court to accord priority to the Writ Petitioners in the process of fresh direct recruitment by relaxing the otherwise requisite and applicable age limit.

19.         The Respondents submit at the outset that the instant Writ Petition is not maintainable on the ground that the Petitioners do not have the requisite locus standi to file this Petition. In substantiation it is stated that GTCL executed the Outsourcing Agreement with the service provider/contractor, Blue-Star. The Writ Petitioners’ being employees of Blue-Star, the Respondents argue, they do not have any locus standi for lack of privity with GTCL to allege GTCL’s failure to advertise direct recruitment for the post of driver and seek this Court’s intervention in that regard.

20.         Mr. Murad Reza, appearing for GTCL, draws this Court’s attention to its ruling in a case involving a similar matter concerning Airtel Bangladesh Limited (“Airtel”) which regularly procures outsourcing services variously from outsourcing service providers. Airtel’s Writ Petition of 2012 (“Airtel Case”), as hereinafter extensively discussed, thrashed out the essential elements of the relationship between an appointing authority receiving the services of workers supplied by a contracting agency, thereby, giving rise to three-tiered interests governed, however, preeminently by a bilateral contractual relationship and privity forged only between the Service Recipient appointing authority and a service providing contracting agency. As we shall see, the Airtel Case is authority for the view that an appointing authority, as recipient of contracted services through the agency of another contracting service providing entity, does not merely be receipt of such service hold out to the hired workers employed by the service providing entity any promise or prospects of treatment of such workers as full-time regularly employed workers. Such workers remain to be termed employees only of the service providing contracting agency as dealt with in the Labour Act, 2006 in a similar vein under Section 3A(3) of the Act which reads thus:  

(3) wVKv`vi ms¯’v Øviv mieivnK…Z kÖwgKMY mswkøó wVKv`v‡ii kÖwgK wnmv‡e  MY¨ nB‡eb Ges Zvnviv kÖg AvB‡bi AvIZvfz³ _vwK‡eb|

. . .

e¨vL¨v : GB avivi D‡Ïk¨ c~iYK‡í Kgx© ewj‡Z ÒkÖwgKÓ mn wbivcËvKgx©,  MvoxPvjK BZ¨vw`‡K eySvB‡e|

The English text reads thus:  

(3) Workers supplied by a contracting agency shall be treated as the workers of the contractor concerned and shall remain within jurisdiction of the Labour Act.

. . .

Explanation.-For carrying out the purposes of this section, “worker” shall also include the security personnel, driver, etc.

21.            Mr. Murad Reza confirms that a similar finding has been arrived at in a Writ Petition filed in 2012 by Grameenphone Limited (i.e., Writ Petition No. 16781 of 2012.)

22.            Mr. Murad Reza satisfactorily submits further on the point of a misconceived reliance by the Petitioners on the previous ruling of this Court pertaining to outsourced drivers of Titas Gas. The Titas Case scenario this Court notes to be distinguishable given that the claims therein arose out of a distinct array of facts. The petitioners’ grievance in that case stemmed from a Titas Board decision reversing its earlier decision and, thereby, refusing to issue interview cards to the outsourced drivers for appointments to permanent drivers’ posts. At its earlier 633rd Meeting, the Titas Board had adopted a decision recognizing the eligibility of contractual employees, including outsourced employees, to apply for permanent posts whenever the authority decided to recruit against the said posts. It so transpired, however, that when all the petitioners-aspirants applied for those posts and were waiting to receive their viva cards, Titas by its 669th Board Meeting refused to issue interview cards to those petitioners. The legality of that decision of reversal came to be challenged in the Titas Case. It is amply clear, therefore, that the Petitioners of the instant Writ Petition cannot expect to be placed on the same footing as the petitioners in the Titas Case who benefited from distinguishable facts unique to that earlier case. Here, and as Mr. Murad Reza aptly submits, there comes into play a settled principle of law that “equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same[Sheikh Abdus Sabur Vs. Returning Officer & Others, reported in 41 DLR (AD) 1989, para 29]. This Court fails to detect any element, factor or ground to treat the present Petitioners’ case on an equal footing as their Titas counterparts.

23.            This Court is equally convinced by Mr. Reza’s argument further that GTCL in the facts followed its own Service Regulations, relevant outsourcing law and the Ministry of Finance’s 2016 circular in hiring the services of outsourced drivers. Within that legal régime there indeed is no legally binding obligation on GTCL to publish advertisements in the national dailies for direct recruitment to the post of driver. Nor was it ever mandatory for GTCL to be guided by the example of another Petrobangla entity, like Titas at any material time.

24.            In this milieu of applicable legal standards governing the availability and hiring of outsourced services, the Outsourcing Guidelines, 2008 have had a central role to play. These Guidelines provided both a sanction and an impetus for amending the Service Regulations and incorporating the provisions governing outsourcing in its Schedule in 2015. It is stated that the 360th GTCL Board Meeting was held on 23.02.2015 precisely for the purpose of amending the Schedule to the Service Regulations. The Board Meeting considered the recommendations by the GTCL Board Committee as included provision for Outsourcing under serial 23 of paragraph 1.4 thus:

23|        AvDU‡mvwm©s Gi gva¨‡g wb‡qvwRZ Rbej‡K wb‡qvM I c‡`vbœwZi Zdwm‡j AšÍf~©³ Kiv n‡q‡Q| ”

25.            Predicated on the same, the Board adopted a decision in the following terms:

6.0| wm×všÍ t

we¯ÍvwiZ Av‡jvPbvi ci cwiPvjKgÛjx wRwUwmGj Gi PvKzix cÖweavbgvjvq wRwUwmGj KwgwU KZ©„K cÖbxZ Lmov Zdwmj As‡k †evW© KwgwUi mycvwikK…Z Aby‡”Q`-1.4 G ewY©Z µwgK bs-11, 13, 14, 16, 18 I 19-G ewY©Z ÒcvkÓ kãwU we‡qvRb K‡i Z`¯’‡j Òmb` cÖvßÓ kãwU ms‡hvRb Ges µwgK bs-23 G ewY©Z Òwb‡qvM I c‡`vbœwZi Zdwm‡jÓ Gi ¯’‡j ïaygvÎ ÒZdwm‡jÓ ms‡hvRbc~e©K †evW© KwgwU KZ…©K ms‡kvw©aZ/ ms‡hvwRZ/ cÖwZ¯’vwcZ Askmn †Kv¤úvbxi PvKzix cÖweavbgvjvi Zdwmj Ask Aby‡gv`b cÖ`vb K‡i|”

(Emphasis added by this Court)

26.            This was, therefore, the administrative decisional route taken by GTCL to insert into the Schedule of the Service Regulations the provision of outsourcing which provides inter alia for the appointment of drivers on an outsourcing basis.

27.            The fact that the mechanism of outsourcing hiring was giving a currency in policy realms is substantiated further by the Ministry of Finance circular of 25.08.2013 clause 7 of which mandatorily requires the hiring of fourth class employees on outsourcing basis in lieu of direct recruitment. Furthermore, the Ministry of Finance, during the pendency of the Rule has as of 01.01.2019 promulgated the “AvDU‡mvwm©s (Outsourcing)” cÖwµqvq †mev MÖnY bxwZgvjv, 2018 (“Outsourcing Guidelines, 2018”), thereby repealing the Outsourcing Guidelines, 2008. The Petitioners contend that Appendix “KA” to the Outsourcing Guidelines, 2018, comprising of an exhaustive list of services procurable through outsourcing bears no mention of or reference to services of drivers. This, they argue further, makes GTCL duty-bound to appoint drivers through direct recruitment. The Respondents, on the other hand, highlight the inclusion in the Appendix “KA” list the category of “cwienb” or “Transportation Service” which they argue to include hired services of drivers and the continued coverage, thereby, accorded to GTCL to maintain the status quo of hiring drivers through the outsourcing mechanism. That argument by the Respondents, this Court finds, to stands to much better reason than the discordant construction relied upon by the Petitioners. 

28.            The cumulative effect of the plethora of orders, guidelines and regulations above considered leads this Court to conclude at this juncture that the Petitioners’ submissions on the Service Regulations and their questions raised as to the veracity and authencity of the table in the Schedule on “Outsourcing Posts” are indeed misconceived, without any sound legal basis and, hence, misleading. It is also noted in this regard that the Petitioners have further argued that the contents of the “comment” or gšÍe¨ column in the table on “Outsourcing Posts” constituting a part of the Schedule, and as reproduced hereinbelow, has no legal or factual basis:

gšÍe¨

(4)

(1) mvsMVwbK KvVv‡gvq ms¯’v‡bi Av‡jv‡K µwgK bs-1 [1] n‡Z 8 ch©šÍ c` mg~‡n Rbej AvDU‡mvwm©s Gi gva¨‡g wb‡qvwRZ Kiv nq|

(2) 28/12/2011 Zvwi‡L AbywôZ cwiPvjKgÛjxi 292 Zg mfv Ges 19/12/2012 Zvwi‡L AbywôZ 317 Zg mfvq mvsMVwbK KvVv‡gvq mxwgZ ch©v‡q A_©vr 6wU ¯’vqx WªvBfvi c` Ges 19wU ¯’vqx G¨v‡Ub‡W›U (Awdm mnvqK) c‡`i ms¯’vb ivLv nq|

 

29.            The Petitioners’ allegations above are proven to be unsubstantiated by the fact that as per the 292nd and 317th GTCL Board Meetings of 28.12.2011 and 19.12.2012 respectively the decision was to keep six permanent drivers only. Accordingly, as per the amended organogram provision remains exceptionally for one permanent driver for the GTCL Managing Director and five for Transport Control Section. Apart from these six permanent drivers, the Schedule fully governs the hiring of drivers on outsourcing basis. There is found no ground to agree with the Petitioners’ contention that the six permanent posts of drivers present the norm rather than the exception to the operation of the outsourcing provisions of the Schedule. 

30.            On the preliminary issue of the maintainability of the Petitioners’ Application, the centrality of Section 3A(3) of the Labour Act, 2006 is unavoidable and it becomes incumbent upon this Court to probe into such preliminary objection raised by the Respondents at this juncture before delving into the more substantive issues raised. The primacy of consideration of maintainability and locus standi has been endorsed, for example, in Kartic Das Gupta vs. Election Commission of Bangladesh and others reported in 8 ADC 578 thus:

“...before going into the merit of a writ petition the first and primary duty of the Writ Bench is to see whether the writ petition itself is maintainable in law or whether the writ petitioner has got any interest in the matter which if not protected he shall suffer injury.”

31.            Accordingly, the Respondents have all along maintained that the instant Writ Petition is not maintainable. A proper construction of Section 3A(3) and analysis of the very concept of “outsourcing” leads us to find, for reasons explained hereinbelow, against the locus standi of the Petitioners to file this Writ Petition. In reiteration it is noted that as per section 3A (3) of the Labour Act, 2006 provides that

“Workers supplied by a contracting agency shall be treated as the workers of the contractor concerned and shall remain within jurisdiction of the Labour Act.

...

Explanation- For carrying out the purposes of this section, “worker” shall also include the security personnel, driver, etc.”

32.            In probing into the dynamics of outsourcing as a mechanism of employment in a given establishment and the relationships that this mechanism engenders, this Court subscribes in this regard to the ratio decidendi of the judgment in Airtel Bangladesh Limited vs. the Chairman, First Labour Court, Dhaka reported in 19 BLC (2014), 517 to find against any direct subsisting and substantive relationship between the Petitioners and the Respondent No. 4, GTCL  as would justify the laying of the claims as has been done in this Writ Petition. The Airtel Case, notably, dealt with predecessor provisions of Section 3A(3) and arrived at findings, in this Court’s findings, which would equally hold true through the application of Section 3A(3) to the present facts.

33.            The Airtel Case, as authored by one of us (i.e., Syed Refaat Ahmed, J.) picks up on two essential notions of “direct supervision and control” and “contractual bind” or contractual privity to dislodge any perception or presumption that physical proximity between an appointing authority and a hired worker or the mere presence of such worker in the premise of an engaging entity remains the primary determinant of establishing an employer-employee or master-servant relationship. The genesis and purport of the term “worker” was extensively discussed by this Court in the Airtel Case in juxtaposition with judicial enunciations in this and the Indian jurisdiction. As will be noted in the excerpts from that judgment as reproduced hereinbelow, it is Justice Bimalenda Bikash Roy Chowdhury’s incisive and precise delineation of the boundaries of definition and circumstances that proved decisive in clinching the outcome in that case for the Petitioner Airtel. It is this Court’s opinion that Justice B.B. Roy Chowdhury’s enunciation of the term “worker” merits unqualified subscription in the instant case negating, therefore, the standing and the claims of the present Petitioners. In ascertaining the factors that emphatically negate the existence of substantive linkages between employer and employee, this Court notably identified the missing links thus in the Airtel Case:

 “…this Court wholly subscribes further to the interpretation given to a similar definition of “worker” by the Supreme Court of India in Workmen Food Corporation of India vs M/s. Food Corporation of India reported in (1985) AIR 670 at paragraph 11 as reads thus:

‘The essential conditions of a person being a workman within the terms of the definition is that he should be employed to do the work in that industry and there should be, in other words, an employment of his by the employer and that there should be a relationship between the employer and him as between employer and employee or master and servant. Unless a person is thus employed, there can be no question of him being a worker within the definition of the terms and contained in the Act.’

           Predicated on that understanding of the connotation of the term “worker” this Court has further considered, and as submitted by Mr. Alam, the elaboration provided by the Appellate Division of the definition of a “worker” under section 2(XXVIII) of the Industrial Relations Ordinance, 1969 (“IRO”) which, considered along with the Employment of Labour Standing Orders Act, 1965, in fact constitutes the essential basis of the codification of the Act of 2006. The expression “worker” as defined in section 2(XXVIII) of the IRO stood thus:

      ‘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 provided by this Court)

It is noted that the Appellate Division in Karnaphuli PMWU vs KPM Employees Union reported in II ADC (2005), 300 was faced with the question of the extent to which the definition above contemplated the status of workers who are engaged in Karnaphuli Paper Mills (“KPM”) through contractors, thereby, qualifying to be treated, if at all, as workers of the KPM establishment itself. In other words, the enquiry was of the extent to which each such worker could be said to be bound in a relationship of employer and employee with KPM. In examining that claimed status and entitlement as KPM workers/employee the Appellate Division pertinently pursued a line of enquiry that focused primarily on the true construction of the terms of employment in each case to determine whether the incidences of employment of each individual claimant with KPM were present or not. Such exercise would finally determine whether any individual claimant was actually employed by KPM or by the concerned independent contractor personally. It is in that context that Justice Bimalendu Bikash Roy Chowdhury laid down what this Court views to be the most succinct and authoritative interpretation of the true import of the words “directly or through a contractor”, featured in section 2(XXVIII) of the IRO and incidentally in section 2(65) of the Act with which we are presently concerned.

        Indeed a worker may be one who is employed by the management directly e.g., by an entity like Airtel, the Petitioner before us, or through a contractor e.g., in the likeness of an outsourcing enterprise like ELSL before us and in both instances will be considered as employed by the management itself, provided, as Justice Bimalendu Bikash Roy Chowdhury stressed, in “either case there (is) a contract of employment between the management and the person employed”. Applied to this case, that would mean the existence of a direct contractual nexus between each individual driver and the Airtel management binding one to the other by privity of contract. That privity, this Court finds, is, however, significantly absent in all the cases before us. For what the present facts manifest is yet a different scenario distinguishable important element of each of the twenty drivers in these Writ Petitions working instead “under the control and supervision of the Contractor”. In other words, such direct control and supervision by a contractor wholly excludes the possibility of employment by the management itself i.e, by Airtel in the present instances. The fact that each driver works in the premises of Airtel makes no substantive difference in this record. They remained at all material times workers under the employment of the independent contractor ELSL and ELSL alone.

        Premised on that essential determinant of the status of a worker under the IRO, and by extension under the Act, being that of a person who enters into a contract of service under the management itself (i.e., in the capacity and status of any appointing entity like the Petitioner Airtel before us), Justice Bimalendu Bikash Roy Chowdhury observed thus at paragraph 12 at page 303:

      ‘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.’

(Emphasis provided by this Court)

Having this focused on the proximity of the contractual bind between an individual of the contractual bind between an individual with an establishment and/or a contractor being determinable by reference essentially to the terms of employment, Justice Bimalendu Bikash Roy Chowdhury appears to this Court to subscribe to the ratio above cited in the workmen Food Corporation of India case in narrowing down the test of a worker’s status to that of an existence of a relationship of employer and employee spelt out in such terms of employment. Accordingly, the learned Judge observed thus:

‘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.’

(Emphasis added by this Court)

         It is in this context Mr. Tanjib-ul-Alam has satisfactorily submitted that the Respondent No. 2 driver in Writ Petition No. 110 of 2012, by his very terms of employment discernible from the Agreements of 2006 and 2009 falls in all aspects of his employment to be absolutely controlled and supervised by the independent Contractor ELSL under whose payroll he and the other Respondent drivers in all these Writ Petitions were at all material times and by dint of which each such driver received payments from the Contractor ELSL. Such payroll was maintained separately and independently by the Contractor of ELSL exclusively of Airtel with the latter having no authority of hiring and firing any of the Respondent No. 2 drivers in the Writ Petitions. It is submitted satisfactorily that clearly these contractual arrangements squarely fall into the scheme of the Agreements of 2006 and 2009 between the Service Receiver Airtel and the Contractor ELSL marked by the payment of the service charge payable by Airtel to ELSL.

         This Court finds that nothing in the contractual regime governing these cases has gone to establish to the contrary that any of the Respondent No. 2 drivers discharged their duties and contractual obligations of service for consideration due them directly by Airtel in the form of salary earned. In fact, the Appellate Division in the Karnaphuli PMWU Case of the contractor submitting bills for services rendered to an establishment and payment under the bill being satisfied upon receipt of the bill amount by the independent contractor into its account from which it would be at liberty to disburse payments of salary and benefits to each individual member of its staff otherwise working in the premises of KPM.

         … In the present facts and circumstances, given this Court’s finding above that absent a contractual bind between the Respondent No. 2 driver and Airtel resulting in a substantive employer employee relationship between the two there is necessarily no existing enforceable right that has at any material date accrued to the Respondent No. 2 driver that would permit of consideration and disposal by the Labour Court by invocation of section 213 of the Act.”

(Emphases added by this Court)

34.            It is our view that the Airtel ratio reflects and adds to the established jurisprudence distilled from a series of unreported cases being Sharmeen Annie vs. First Labour Court, Dhaka and another (Writ Petition No. 7068 of 2011) Grameenphone Limited vs. the Chairman, First Labour Court, Dhaka (Writ Petition No. 16781 of 2012 and other Writ Petitions) and Khandaker Razib and others vs. Government of Bangladesh represented by the Secretary, Ministry of Water Resources and others (Writ Petition No. 4486 of 2017 and other Writ Petitions). The Khandaker Razib Case succinctly outlines and clarifies the nature of outsourced services, concepts of service recipient, service provider or renderer thus which this Court is inclined to adopt for the present purposes:

“The concept of “Outsourcing” is a not something new. Labour services and the professional services may be procured through outsourcing. In India, this process has been going on and is a process by which the recipient of service enters into a specific agreement with a contractor/service provider who engages these persons to render services to the service recipient. In such a situation, there is no employment contract between the service recipient and the service renderer. The contract only exists between the service recipient and the contractor and consideration for the service are provided by the service recipient or the contractor, as the case may be. It is also to be noted here that if the service recipient is not satisfied with the service rendered by the persons who are engaged by the contractor then his particularly remedy lies for breach of the terms and conditions of the agreement against the contractor and not by invoking the writ jurisdiction under Article 102 of the Constitution for regularization of their services with the authority concerned. Likewise, if the contractor does not receive adequate consideration for providing his service through his appointed employees, his remedy also lies against the service recipient. The service recipient is generally not concerned who renders the service to him as long as the services sought is rendered adequately. As can be reasonably expected, the service recipient may set certain criteria and conditions to be observed by the service renderer and he has a discretion to reject any person through whom the service is provided by the contractor; but in such cases the matter is governed by the contract between the service recipient and contractor. It is a contract of services as opposed to a contract of employment.

In an unreported decision in Writ Petition No. 7068 of 2011 in Sharmeen Annie vs. First Labour Court, Dhaka and another it has been held:

“To be an employee one has to be in the employer’s pay roll and subject to the letter’s control on questions of employment. There has to be a contract of employment inter se, containing terms of employment. Nothing like that is present in the file before us. It transpires, the respondent No. 2 is indeed an employee of an independent contractor named TEAM Services. The contractual relationship is between the petitioner and TEAM Services, the respondent No. 2 is not a privy to it. So, he has no cause of action against the petitioner.”

(Emphases added by this Court)

35.            As noted earlier, the mainstay of the Petitioners’ case and arguments has been the thrust of the judgment of this Court in Writ Petition No. 1406 of 2013 which in the facts this Court finds not applicable to the Petitioners’ claim. That case, i.e., the Titas Case proceeds on the issue of a legitimate expectation engendered singularly through a series of factual developments unique to that case and which are found to have no manner of application to the case at hand. In this regard, this Court is constrained to find that the reliance on the Titas Case ratio by the Petitioners has been a highly misconceived one. That reading of the Titas Case coupled with this Court’s understanding of the governing law, regulations and guidelines and the compelling enunciation of the dynamics of outsourced employment in the Airtel Case and the Khandaker Razib Case leads this Court to find that outsourcing is not a procedural or administrative aberration but is a legally sanctified mainstream mode of hiring. That leads us to observe and find as follows:

-       By virtue of the Outsourcing Agreement read with Section 3A of the Labour Act, 2006 the Petitioners remain in law and by contract employees of Blue-Star and not of GTCL;

-       The Petitioners have assiduously and deliberately downplayed their relationship with Blue-Star (later added on as a Respondent) and that the Petitioners’ learned Advocate Mr. Md. Bodruddoza could not satisfactorily argue why this Court should assume the Petitioners to be bound in a direct bilateral relationship with GTCL in lieu of that spelt out in the Outsourcing Agreement between GTCL and Blue-Star;

-       The Petitioners present the outsourcing scheme/notion to be an anathema whereas it is found to be a concept entrenched in law and sanctioned practice; and

-       The physical proximity of the Petitioners to GTCL and the fact of their daily contacts with GTCL administration and GTCL employees cannot undermine the effect of Section 3A(3) and the Outsourcing Agreement and, therefore, the Petitioners cannot be deemed to be bound in privity with GTCL excluding wholly the all significant intervening substantive role of Blue-Star.   

36.            An analysis further of the set of the relevant laws, rules and regulations that are found by this Court to govern the Petitioners’ relationship with the Respondent No. 4, GTCL satisfies this Court that GTCL has proceeded at all material times to adopt the outsourcing mode of engaging individuals as the Petitioners upon a proper reading and application of the same. Contrary to what the Petitioners would have this Court believe, GTCL’s actions have always proceeded on a firm legal footing as further substantiated and sanctified by the Aritel Case ratio as above discussed and enunciated. As evident above, a careful study has been undertaken by this Court of the GTCL Service Regulations, along with amendments thereto and its Schedule, the relevant provisions of the Outsourcing Guidelines, 2008 and the successor Guidelines of 2018 and the set of circulars issued by the Ministry of Finance on 25.8.2013 and 27.1.2016. These rules and regulations collectively convince this Court of the propriety and legality of GTCL’s reliance on the outsourcing mechanism of engaging workers as the Petitioners and their continued employment as such under full legal cover. In this regard, we have not been convinced of arguments made by Mr. Md. Bodruddoza on behalf of the Petitioners to dispute certain of the amendments/amending provisions of the Service Regulations which the Petitioners have sought to challenge on grounds of lack of authenticity or of being a product of irregular inclusion in the body of the Service Regulations. Indeed, the agreements have seemed spurious. It is also this Court’s view that a proper reading of the Outsourcing Guidelines, 2018 given effect from 1.1.2019, which is read as a consolidating exercise and intended to have a broad base application, leaves no scope for debate or confusion that the Guidelines bring within their ambit the outsourced hired services like drivers. The Petitioners’ arguments to the contrary providing a different construction to the Guidelines and the provisions of its cwiwkó ÔKÕ or Appendix ‘KA’ covering cwienb or “Transportation Service” are found to be unsatisfactory and unconvincing, thereby, straining and stretching the boundaries of proper interpretation.

37.            Both on the grounds of maintainability and substantive soundness of the Petitioners’ case this Court, therefore, remains wholly disinclined to a favourable consideration of the Rules Nisi.

38.            It is noted additionally that this Court’s initial Order of Status Quo was modified by the Appellate Division by its Order of 14.5.2018 enabling the Writ Respondents to follow the usual terms and conditions to deal with the service of the Writ Petitioners henceforth. Given the terms of our findings above and the outcome declared above, we see no discordance with our substantive findings and findings and the effect of the Appellate Division’s Order of 14.5.2018, thereby, enabling GTCL to henceforth continue to engage the Petitioners according to the terms and conditions of service as envisaged in the Outsourcing Agreement already executed between GTCL and Blue-Star Services. That position finds endorsement in practice by Clause 4(C) of the Outsourcing Agreement as previously discussed and indeed Clause 33 of the said Agreement declaring the drivers hired from Blue-Star to be treated as employers of Blue-Star alone with incidences of such employer-employee relationship between Blue-Star and the Petitioners clearly stipulated elsewhere in the said Agreement.

39.            Resultantly, the Rule is discharged with the findings and observations above.  

40.            There is no Order as to costs.

41.            Communicate this Order at once.

         Ed.



Writ Petition No. 2729 of 2018

[1] Note that µwgK bs-1 or Serial No. 1 service bears reference to Drivers under the table on “Outsourcing Posts” to the Schedule.