Md. Hassan Ali & others. Vs. Atlas Bangladesh Ltd. & others [4 LNJ (2015) 406]

Case No: Writ Petition No. 5055 of 2009

Judge: Tariq ul Hakim,

Court: High Court Division,,

Citation: 4 LNJ (2015) 406

Case Year: 2015

Appellant: Md. Hassan Ali & others

Respondent: Atlas Bangladesh Ltd. & others

Subject: Writ Petition, Locus Standi,

Delivery Date: 2013-06-19


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Tariq ul Hakim, J,
And
Abu Taher Md. Saifur Rahman, J.


Judgment on
19.06.2013
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Md. Hassan Ali
…Petitioner in W. P. 5055 of 2009
Md. Shorabuddin
…Petitioner in W. P. 1660 of 2011
Md. Taslim Uddin Ahmed
…Petitioner in W. P. 9396 of 2011
Md. Anwarul Islam Khan
…Petitioner in W. P. 2969 of 2009
-Versus-
Atlas Bangladesh Limited and others
… Respondents.
 
Constitution of Bangladesh, 1972
Article 102
When the shares of limited companies are owned by the Government it becomes an instrument of the Government to implement its policy and it may be considered also as a local authority and the Writ Petition is clearly maintainable. .  . . (27)

Public Corporations (Management Co-ordination) Ordinance (XLVIII of 1986)
Section 14A
Public Servants Retirement Act (XII of 1974)
Section 4
The Public Corporations (Management Co-ordination) Ordinance, 1986 only applies to enterprises of the Corporation but not the Corporation itself. Accordingly, although the retirement age of a worker of enterprise under the Corporation would be 60 years, the other employees of the Corporation itself would be retired as per provisions of the Public Servants Retirement Act, 1974. Since in all these cases the petitioners were in employment until they reached the age of 60 years they are entitled to their salaries and  other retirement benefits until the age of  superannuation i.e. 60 years, the respondents are directed to pay the same on completion of their  60 years  age  if they have not already been paid. . . . (28 and 29)

Mr. Mirazul Hossain Khan, Advocate
...For the petitioners in all the Writ Petitions.
Mr.  Mollah Kismat Habib, Advocate 
...For the Respondent No.2 in Writ Petition Nos.5055 of 2009 and 1660 of 2011.  
None appears
…For the respondents in Writ Petition Nos. 9396  of 2011  and  2969  of 2009
 
Writ Petition No. 5055 of 2009 with Writ Petition No. 1660 of 2011 with Writ Petition No. 9396 of 2011 with Writ Petition No. 2969 of 2009
 
JUDGMENT
Tariq ul Hakim, J.
 
In all these cases petitioners have filed applications under Article 102 of the Constitution impugning their retirement at the age of 57 years.

All the Rules were heard together and are being disposed of by this single judgment.

In Writ Petition No.5055 of 2009 it has been  stated that the petitioner  was born on 27.8.1952  and was appointed Senior  Dying  Helper  on 27.11.1974  in Atlas Bangladesh Limited  and subsequently serving Senior  Dying  Helper.  Thereafter suddenly he was served with Memo Reference No. NBL/ Admin/W-52/ 2009/ 2524 dated 07.05.2008  informing him  that he would retire from service  on completion of 57  years of age with effect from 26.08.2009.

Being aggrieved, the petitioner came to this Court and obtained  the present Rule.

In Writ Petition No. 9396 of 2011 it has been  stated that the petitioner  was born on 01.01.1955  and was appointed as Technician  with effect from 16.11.1982  in the Bangladesh Blade Factory  Limited  and subsequently  by order dated 10.2.2005  he was  designated as Master  Technician.  He was served with Memo Reference No. BBFL/ Admin/125/ 2011 /606 dated 10.10.2011 by which he was informed  that he would retire from  service  on completion of 57  years of age with effect from 31.12.2011.

Being aggrieved, the petitioner came to this Court and obtained the present Rule.

In Writ Petition No. 1660 of 2011 it has been stated that the petitioner was born on 13.03.1953 and was appointed as Probationer Helper vide appointment letter dated 27.7.1974 in Atlas Bangladesh Limited and after working in different capacities he was lastly appointed as Assistant Foreman on 6.9.2009. Subsequently by Memo Reference No. ABL/Admin/S-50/ 2010/ 2625 dated 06.03.2010 he was informed that he would be retired from service on completion of 57 years of age with effect from 11.03.2011.

Being aggrieved, the petitioner has come to this Court and obtained the present Rule.

Similarly in Writ Petition No.  2969 of 2009 it has been stated that the petitioner was born on 02.03.1952 and was appointed as Production Helper on 25.03.1982 in the Bangladesh Blade Factory Limited and was lastly serving as Skilled Technician. Thereafter he was served with Memo Reference No. BBF/ Admin/Ba: Nothi/2009/37 dated 01.12.2008 by which he was informed that he would retire from service on completion of 57 years of age with effect from 01.03.2009.

Being aggrieved, the petitioner has come to this Court and obtained the present Rule.

In all these cases this Court also passed an interim order at the time of issuance of the Rule allowing the petitioners to work by staying the aforesaid impugned orders.

In all the Writ Petitions it has been  stated that the petitioners are workers within the meaning of section 14A of the Public Corporations (Management Co-ordination) Ordinance, 1986 (Ordinance No. XLVIII of 1986) as amended where the retirement age of workers has been stated to be 60 years.

In all the cases the petitioners served Demand for Justice Notice upon the respondent Mills to allow the petitioners to work until the age of 60 years but received no satisfactory response and as such they have been constrained to come to this Court and obtain the present Rules.

The Rules  issued in Writ Petition Nos. 5055 of 2009 and 1660 of 2011  are being contested by  the Respondent No.2  by filing Affidavit-in-Opposition denying material allegations and stating inter alia that the petitioners are not workers within the meaning of  the Public Corporations (Management Co-ordination)  Ordinance, 1986  as amended  and as such  are not entitled to  work  until the age of 60.  It has been  further stated that the petitioners are employees  of Atlas Bangladesh Limited which is a limited company  controlled by the Bangladesh Steel and Engineering  Corporation  and as such  the Writ Petitions are not maintainable .

None appears to oppose the Rules in Writ Petition Nos. 2969 of 2009 and 9396 of 2011.

Mr. Mirazul Hossain Khan, the learned Advocate  for the petitioners in all the Writ Petitions  submits that  all the petitioners are workers  within the definition of the Public Corporations (Management Co-ordination)  Ordinance, 1986 as amended  and as such  they  are entitled to  work upto the age of 60 years as provided  in the  said Act. He further submits that  in all the cases the petitioners including  those of Writ Petition Nos. 5055 of 2009 and 1660 of 2011 are working without having  any decision making power and as such  the nature  of their job clearly suggests that they are workers. In this respect he has drawn our attention to the Annexure A of the Writ Petition No.  1660 of 2011 where it has been stated that the petitioner “শ্রমিক হিসেবে বিবেচিত” i.e.  he is classified as a worker even though he is a Senior  Master Technician. The learned Advocate has also drawn our attention to the Public Corporations (Management Co-ordination) Ordinance, 1986 as amended and the schedule where the name of Bangladesh Steel and Engineering Corporation of which Atlas Bangladesh Limited and Bangladesh Blade Factory Limited are Enterprises. He therefore submits that the aforesaid Ordinance will be applicable in the instant case and the petitioners be allowed to work at the age of 60.

As against this, Mr. Mollah Kismat Habib, the learned Advocate for the Respondent No. 2  vehemently submits that the petitioners are working for Atlas Bangladesh Limited and  Bangladesh  Blade  Factory Limited, these two are limited companies  and a portion  of the shares are even owned by the workers  itself and as such the Writ Petitions  are not maintainable. He further submits that the petitioners are doing various supervisory work and they cannot be classified under the category of worker and from that point of view the Rules are not maintainable.

We have given our anxious consideration to the submissions of the learned Advocates.

It appears that in the meantime the petitioners have reached their age of superannuation i.e. 60 years during pendency of the Rule and gone into retirement and stopped working for the concerned Mills but have not yet been given their retirement benefits.

The only point for adjudication therefore is whether the petitioners are entitled to work upto the age of 60 years.

Under the Public Corporations (Management Co-ordination) Ordinance, 1986 as amended a worker has been defined as "any person, skilled or unskilled, who works for hire or rewards, but does not include a person who is employed in any managerial, administrative, supervisory or solely clerical capacity.”

In the instant case in Writ Petition Nos. 2969 of 2009 and 9396 of 2011 no Affidavit-in-Opposition has been filed and none appeared to contest the Rules. The petitioners in this case were serving as Master Technician and there is no allegation that they are not workers and as such the question of not being classified as worker in this case does not arise.

In the case of Writ Petition No. 1660 of 2011 although the petitioner was appointed  Foreman whose work includes certain supervisory works, Annexure  A, a letter from the Mills administration  clearly states that he was classified and considered a worker. We are  also not satisfied that as junior foreman  which was  the petitioner’s post he was doing  exclusively supervisory work though such supervision may have been part of his duty and as such  it cannot be said  categorically  that he is not a  worker  and as such  we feel that the benefit of doubt  should go  in favour of  him.

In Writ Petition No. 5055 of 2009 the petitioner was serving as Senior Dying Helper and as such no question of not being a worker arises. 

Section 14A of the Public Corporations (Management Co-ordination)  Ordinance, 1986 as amended  states as follows :

“14A Retirement of a worker , etc. (1) A worker  of an enterprise  shall, notwithstanding anything contained in the terms and conditions of  his employment in any contract, rule, regulation, bye-law or other instrument, retire from employment on the completion of the sixtieth year of  his age:
Provided that a worker who has completed the sixtieth year of his age on or before the date of commencement of the Public Corporations (Management Co-ordination) (Amendment) Act, 1994 shall cease to be in the employment of the enterprise on such commencement.”

On perusal of the aforesaid provisions of law it appears that the petitioner is entitled to continue in service till 60 years of age which indicates that he cannot be retired before that and the impugned order purporting to retire the petitioner on the age of 57 years is clearly inconsistent with the provisions of law.

As regards the submission of Mr. Mollah Kismat Habib, the learned Advocate for the Respondent that Atlas Bangladesh Limited  and Bangladesh  Blade Factory Limited  are limited companies  and these Writ Petitions are not maintainable is misconceived in view of  several decisions of this Court where it has been  decided that when the shares of limited companies  are owned by the Government  it becomes an instrument of the Government  to implement its policy and it may be considered  also as a local authority  and the Writ Petition is clearly maintainable.

It may be pertinent to point out that the Public Corporations (Management Co-ordination) Ordinance, 1986 only applies to enterprises of the Corporation but not the Corporation itself. Accordingly although the retirement age of a worker of enterprise under the Corporation would be 60 years, the other employees of the Corporation itself would be retired as per provisions of the Public Servants Retirement Act, 1974.

Since in all these cases the petitioners were in employment until they reached the age of 60 years they are entitled to their salaries and other retirement benefits until the age of superannuation i.e. 60 years, the respondents are directed to pay the same on completion of their 60 years age if they have not already been paid.

In the result, all the Rules are made absolute without any order as to costs.

Ed.