Md. Tafikul Islam & ors. Vs. Government of Bangladesh & ors., (Syed Refaat Ahmed, J.)

Case No: Writ Petition No. 11886 of 2015

Judge: Syed Refaat Ahmed, J And Md. Salim, J

Court: High Court Division,

Advocate: Mr. Moudud Ahmed, Senior Advocate with Mr. Probir Neogi, Senior Advocate, Mr. Mohammad Ali Khan, Adv. and Ms. Anita Ghazi Rahman, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Md. Tarikul Islam and others

Respondent: Government of Bangladesh and others

Subject: Constitutions of Bangladesh

Delivery Date: 2019-12-04

 

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Syed Refaat Ahmed, J

And

Md. Salim, J

 

Judgment on

23.11.2017

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Md. Tarikul Islam and others

. . .Petitioners

-Versus-

Government of Bangladesh and others

. . .Respondents

Constitutions of Bangladesh, 1972

Article 16

Is imbibed with a sense of urgent mission single-mindedly pursued rural economic progress. The chosen avenue for such economic upliftment, as informed by the fundamental principle of progress and reduction of disparity underlying article 16 of the Constitution, is not merely the provision of electricity but the collective means of providing the same.                           . . . (35)

Labour Act (XL of 2006)

Section 31

That the Petitioning have to their detriment ignored a calibration of section 31 within the fabric of the Act itself in favour of instead gauging its validity with standards prevalent under the Act of 2006.           . . . (36)

Labour Act (XL of 2006)

Section 31

REB (Amendment) Ordinance, 1987

Section 23A

It is only in that specific limited sense that the reference therein to the Act of 2006 can reasonably merit examination and no more. In other words, the Act of 2006 provides standards to form trade unions in industries-establishments etc. organized on a commercial basis and engaged in activity for profit. The Act through section 31 simply declares that the BREB and PBS are not to be equated with such industries, establish-ments etc. Similar to section 23A introduced under REB (Amendment) Ordinance, 1987, section 31, therefore, is found to have a “tidying up” role in the scheme of the Act. To read anything beyond that into section 31, as indeed the Petitioners have done, as otherwise unreasonably and unjustifiably restricting their guaranteed freedom to form associations and unions is utterly misconceived. Consequently, this Writ Petition, as Mr. Mahbubey Alam has pointed out, reads fundamentally as one pressing the right to form a trade union as contemplated under present labour law legislation. To press such a right through the circuitous route of impugning section 31 is found to be ill-advised if not outright callous and reckless. In that sense, the argument that section 31 is in any way ultra vires article 38 is found to be deeply flawed.                                      ...(36)

Constitutions of Bangladesh, 1972

Articles 16, 38 and 102

Labour Act (XL of 2006)

Section 31

In their arguments of the priority to be given article 38 in determining the vires of section 31 the Petitioner would have been better served in exploring further the essential constitutional link between articles 16 and 38. The constitutional scheme is such that each gives context to the other and cannot, indeed must not, be read to the exclusion of either, especially in a case as this. Any challenge to the vires of a statutory provision on the ground that it fails the “reasonable restriction” test must proceed on an “objectivity test” properly identified by any aggrieved person. Any restriction to a guaranteed freedom arising under Part III of the Constitution will invariably have to pass that test. Interestingly, that test seeks to strike a balance between communal good and individual welfare.                                  . . . (37 and 38)

Md. Mehdi Hassan and another Vs. The Government of Bangladesh and others, 1 LCLR [2012] HCD 380; Oali Ahad Vs. Government of Bangladesh 26 DLR (1974), 376 ref.

Mr. Moudud Ahmed, Senior Advocate with

Mr. Probir Neogi, Senior Advocate,

Mr. Mohammad Ali Khan, Adv. and

Ms. Anita Ghazi Rahman, Advocate

. . . For the Petitioners.

Mr. Mahbubey Alam, Senior Advocate with

Mr. Reja-E-Rabbi Khandoker, Advocate and

Mr. Fazle-Noor Taposh, Advocate

Ms. Meherunnesa, Advocate

Mr. Saiful Islam, Advocate

… For the Respondent No. 5

Mr. Murad Reza, Additional Attorney General

… For the Respondent No. 1. 

JUDGMENT

Syed Refaat Ahmed, J:- In this Application under Article 102 of the Constitution a Rule Nisi was issued calling upon the Respondents to show cause as to why the impugned section 31 of fõ£ ¢hc¤Éa¡ue ®h¡XÑ BCe, 2013 (Annexure-A) should not be struck down as the same is unconstitutional and ultra vires to the provision of Article 38 of the Constitution of the People’s Republic of Bangladesh and/or such other or further Order or Orders passed as to this Court may seem fit and proper.

2.             The Petitioners challenge the constitutional validity of section 31 of the fõ£ we`y¨Zvqb †evW© AvBb, 2013 Palli Bidyutayan Board Act, 2013 (“Act”) (Annexure-A) as published in the Official Gazette on 10.11.2013 repealing the Rural Electrification Board Ordinance, 1977. This piece of 2013 legislation establishes afresh the Palli Bidyutayan Board or the Bangladesh Rural Electrification Board (“Board/BREB”) laying out its organizational structure, statutory terms of reference, functions etc. The impugned section 31 of the fõ£ we`y¨Zvqb AvBb, 2013 Act reads as under:

31| †evW©, BZ¨vw`‡K †`vKvb, evwYwR¨K ¯’vcbv, KviLvbv wkí BZ¨vw` wnmv‡e e¨vL¨v bv Kiv|

AvcvZZ ejer Ab¨vb¨ †Kvb AvB‡b hvnvB _vKzK bv †Kb kªg AvBb 2006 (2006 m‡bi 42 bs AvBb) Abyhvqx †evW©, mwgwZ ev GB AvB‡b 6 (U) G ewY©Z †Kvb msMVb ev †Kv¤úvbx‡K †`vKvb, evwYwR¨K ¯’vcbv, KviLvbv wkí, evwYwR¨K cÖwZôvb ev wk‡í cÖwZôvb wnmv‡e e¨vLv Kiv hvB‡e bv |

3.             It is asserted that workers and labourers working in different societies each styled as Palli Bidyut Samity (“PBS”) under the Board/BREB formed an association namely fõ£ we`y¨Z kªwgK Kg©Pvix jxM as per section 176 of the Bangladesh Labour Act, 2006 (Act of 2006) with a view to forging good working relationship amongst its members and a central executive committee was, accordingly, constituted. As per provision of the Act of 2006, the Petitioners duly applied for registration as a trade union of the said fõ£ we`y¨r kªwgK Kg©Pvix jxM to the Respondent No. 3, Director of Labour who is also the Registrar of Trade Unions on 10.12.2013. The Respondent No. 3 in his capacity as Registrar of Trade Unions refused vide letter dated 15.12.2013 to register the Petitioners’ trade union by reference to the impugned section 31 of the Act citing the bar thereunder preventing the Board/BREB and societies to be defined as any commercial entity of the likes of a shop, commercial establishment, industry etc.. The implication here being that section 31 operates as a bar, therefore, to the formation of trade unions in the BREB or the societies (fõ£ we`y¨r mwgwZ) established to work alongside the BREB. The Petitioners contend that such refusal is tantamount to the workers and labourers of BREB being denied the statutory status of workers as defined under section 2(65) of the Act of 2006.

4.             The spectre of discrimination and inequality of treatment is also    raised by the Petitioners given that workers of several organizations like the Power Development Board (PDB), Dhaka Electric Supply Company Limited (DESCO), Water Development Board, Water Supply and Sewerage Authority (WASA), Public Works Department (PWD), Ashuganj Power Development Company Limited (APDCL),  West Zone Power Development Company Limited (DZPDC), Titas Gas Limited etc. are shown to have banded together as registered trade unions.

5.             It is submitted that because of impugned section 31 of the Act, the workers and labourers working in different societies styled as PBS under the Board/BREB have been arbitrarily ousted from the definition of kªwgK or workers as under section 2(65) of the Act of 2006 and, thereby, deprived of their fundamental freedom to form associations or unions guaranteed under Article 38 of the Constitution In this, the Petitioners see a deliberate and illicit motive behind the formulation of the impugned section 31 to debar BREB workers and labourers working in different societies styled as PBS from forming trade unions.

6.             Bearing in mind, however, that the guarantee under article 38 of the Constitution manifests but a qualified, and not an absolute, freedom to form associations or unions and that such right is “subject to any reasonable restrictions imposed by law in the interests of morality or public order” it is submitted that the Petitioners’ association is not in way related in activity which may be considered subversive or against public interest. The Petitioners, therefore, are unable to find any rational or cogent reason behind enacting the impugned section 31. It is stressed that the Petitioners’ association does not bear a threat to the religious, social and communal harmony in any way but rather has been merely formed to primarily ensure the welfare of and engendering harmonious relationship amongst workers working in different societies styled as fõ£ we`y¨r mwgwZ under the Board/REB and as such the application for registration as a trade union has wrongfully been rejected and illegally denied under the circumstances.

7.             This Court appreciates at the outset that the Act operates within a special legal régime focusing on the institutional status, structure and nature of operations of the BREB and the societies established under its aegis. It is a self-contained piece of legislation specific in its declarations and expressly declaratory of the special legislative status granted both to the REB and the societies styled as PBS established thereunder. Though the Rule Nisi is predicated on the ostensible repugnancy of section 31 to the “reasonable restrictions” standard arising under Article 38 of the Constitution, this Court finds that the Act significantly imbibes the spirit of Article 16 of the Constitution as is declaratory of an intent of the state to adopt effective measures to bring about a radical transformation in the rural sector inter alia through providing rural electrification. Indeed, Article 16 stipulates various avenues of socio-economic transformation with the objective “progressively to remove the disparity in the standards of living between the urban and rural areas.” The attainment of that objective through the avenue of rural electrification, this Court finds, informs the predominant legislative spirit as articulated in the preambular provisions of the Act thus:

­k­qa¥ fõ£ Hm¡L¡ J L¢afu AeÉ¡eÉ Hm¡L¡u ¢el¢h¢µRæ ¢hc¤Év plhl¡q ¢e¢ÕQaLl­Zl j¡dÉ­j L«¢o ¢hfÓh, L¥¢Vl¢nÒf J AeÉ¡eÉ ¢n­Òfl ¢hL¡n Hhw NË¡j£Z AbÑe£¢a ab¡ L«¢o, ¢nÒf, ¢nr¡, ü¡ØqÉ, pwØL«¢a J AhL¡W¡­j¡Na Eæu­el E­Ÿ­nÉ ¢hc¤Év n¢š²l L¡kÑLl hÉhq¡l AhÉ¡qa l¡M¡ Hhw fõ£ ¢hc¤Éa¡ue L¡kÑœ²j p¤ÖW¥i¡­h f¢lQ¡me¡l m­rÉ Rural Electrification Board Ordinance, 1977 (Ordinance No. LI of 1977) l¢qaœ²­j Eq¡ f¤exfËZu­el j¡dÉ­j HL¢V fõ£ ¢hc¤Éa¡ue ®h¡XÑ fË¢aÖW¡ Hhw Hacpwœ²¡¿¹ ¢hd¡e Ll¡ pj£Q£e J fË­u¡Se£uz

It is also this Court’s view that this preambular declaration is significantly indicative of and informed by the Article 8(2) tenet in the Constitution that the Part II Fundamental Principles of State Policy (article 16 incorporating one such principle) “shall be fundamental to the governance of Bangladesh, shall be applied by the State in the making of laws, shall be a guide to the interpretation of the Constitution and of the other laws of Bangladesh and shall form the basis of the work of the State and of its citizens”

8.             It cannot be gainsaid that a constitutional narrative of the rule of law cannot ignore the Part II provisions of the Constitution. Indeed Mustafa Kamal J. emphatically upheld the view in Dr. Mohiuddin Farooque vs Bangladesh reported in 49 DLR(AD)(1997) 1 that judicial review does not automatically exclude a consideration of the Part II provisions. Indeed, Mustafa Kamal, J. found it “constitutionally impermissible to leave out of consideration part II of our Constitution when an interpretation of Article 102 needs a guidance.”. Taking a cue from that dictum an academic of note has observed:

“The State Policy Principles are indeed a charter of social justice, providing a set of State duties that, although not judicially enforceable, provide the normative framework for the governance of the state and law-making. They mandate an all-out state endeavour to attain an exploitation-free society, i.e. a society where everyone’s entitlement to basic amenities would be ensured, and democracy, human dignity, participation and equal economic development would be upheld. Together with the enforceable fundamental rights, therefore, the FPSPs provide “a reservoir of legal resources” which can be drawn upon by the courts and other institutions of governance to achieve social justice.”

(“Rule of law in Bangladesh: The good, the bad and the ugly” Ridwanul Hoque in The Rule of Law in Developing Countries: The Case of Bangladesh, Ed., Chowdhury Ishrak Ahmed Siddiky).

9.             The learned Additional Attorney General Mr. Murad Reza in arguing for the Respondent No. 1, Ministry of Law, Justice and Parliamentary Affairs highlights this very purposive approach behind the establishment of the BREB and submits that the Act’s purpose for enactment expressed in its preamble is predicated on the article 16 directive on the State to adopt effective measures for rural development and agricultural revolution. That overriding objective, Mr. Reza submits, is in large measure to be attributable to rural electrification being secured as an essential sustainable service.

10.         This Court is given to understand that essential to the sustainability of such statutory altruism is BREB’s mode of operation on a non-profit cooperative basis figuring prominently in article 11 of the BREB-PBS Model Bye-Laws. It is declared that any PBS shall operate on a no-profit basis eschewing a commercial basis of activity. This no-profit statutory bias leads in turn to employees of the BREB standing on a totally different footing form those of PDB, DESCO and DPDC which distinguishably operate with an overriding profit making motive.

11.         This Court appreciates that the correlation of section 31 to Article 38 lies in the extent to which section 31 does not exceed the range or limits of constitutionally permissible restrictions to the right to form an association or a trade union. According to Article 38, “every citizen shall have the right to form association or union subject to any reasonable restrictions imposed by law in the interest of morality of public order.” An expansive definition of “public order”, this Court finds, can, therefore, reasonably encapsulate the maintenance of uninterrupted supply and provision of essential services as enures to productivity, prosperity and socio-economic stability. The composite thrust of such features is to ensure the “public order” article 38 speaks of as a prerequisite to the “radical transformation” that article 16 in turn aspires to. Evidently, that inter-constitutional linkage manifests amply in the Act itself.

12.         As explained by Mr. Murad Reza, the BREB has been created with a statutory vision to ensure uninterrupted supply of electricity in rural and other areas for nothing short of an agricultural revolution matched by the growth of cottage and other industries and development of all aspects of the rural economy both through the uninterrupted supply and effective utilization of electric power. In endorsing that vision of wide-ranging and comprehensive rural development and progress the preamble of the Act reads to this Court as the cornerstone to ensuring “public order” in a still largely rural agrarian-based economy which is on the threshold of graduating to the status of a developing economy from that of a least developed one.

13.         It is found that this urgency of continued and unhindered facilitation of a rural march to progress is unsurprisingly a recurring and an all-pervasive theme of the Act. Accordingly, employment or service under the BREB or a PBS is termed “urgent and essential” service of the government under section 30 of the Act as declares that, “‡evW©, mwgwZ ev GB AvB‡bi D‡Ïk¨ c~iYK‡í MwVZ Ab¨vb¨ ms¯’v ev †Kv¤úvbxi PvKzix miKv‡ii Sl¦l£ AZ¨vek¨Kxq mvwf©m wn‡m‡e Mb¨ nB‡e|” The essentiality, indeed centrality, of such service under this Act is reinforced by section 3(2)(b) of the Essential Service (Maintenance) Act, 1952 as ensures maintenance of supplies or services which are essential to the life of the community and, thereby, by this Court’s reckoning, the maintenance of public order. If the impugned section 31 is in that light to be viewed as enabling in the provision of such urgent and essential services, then this Court will not take issue with its formulation, intent or objective. On a plain reading of section 31 this Court finds nothing therein that is repugnant in any way to article 38 or is in excess of constitutionally imposed limits as to the formation of associations as unions. In that sense, section 31 is certainly not inconsistent to the Constitution.

14.         There is yet an express primary feature intrinsic to section 31 that merits consideration. On an initial reading it comes across as defining the characteristics of the BREB/ PBS and its restrictive role, if any, but as highlighted by the Petitioners at best pales into insignificance. By such construction, section 31 is seen by this Court as the sum total deduction of the legislative intent under the Act with its primary and singular purpose being to provide a definition of the BREB.

15.         It is at this juncture that the core submission of the Respondent No. 1 that the non-obstante clause of impugned section 31 has taken the Act out of the purview of the Act of 2006 merits some consideration. A perusal of section 31 reveals further that it to touches upon issues that on enquiry are dealt with in specific provisions of the Act of 2006. Deconstructed so, section 31 bears a correlation to section 176 of the Act of 2006 as spells out the right of workers to form trade unions. The thrust of section 31 is to declare section 176 as not applicable to the BREB, any PBS or any establishment or company described in section 6(V) of the Act thus:

    6z ®h¡­XÑl L¡kÑ¡hm£z- HC BC­el E­ŸnÉ f§lZL­Òf, ®h¡XÑ ¢ejÀh¢ZÑa L¡kÑ¡hm£ pÇf¡ce Hhw ac¤­Ÿ­nÉ fË­u¡Se£u fËLÒf fËZue, h¡Ù¹h¡ue, f¢lQ¡me¡, lrZ¡­hrZ J j§mÉ¡ue pwœ²¡¿¹ k¡ha£u L¡kÑœ²j NËqZ L¢l­a f¡¢l­h, kb¡x- ...

    (V) fËLÒf h¡Ù¹h¡ue J hÉhØq¡fe¡ Hhw pw¢nÔÖV ®ph¡ fËc¡­el E­Ÿ­nÉ pÇi¡hÉ ¢hc¤Év hÉhq¡lL¡l£NZ­L Be¤ÖW¡¢eL J Ae¡e¤ÖW¡¢eL N˲f kb¡, fõ£ ¢hc¤Év p¢j¢a, ®~hc¤É¢aL J AeÉ¡eÉ pjh¡u p¢j¢a, ¢hc¤Év p¢j¢a, H­p¡¢p­une J ®L¡Çf¡e£­L pwN¢WaLlZ Hhw fË­u¡S­e HL¡¢dL p¢j¢a­L HL£i¨aLlZ h¡ ®L¡e p¢j¢a­L HL¡¢dL p¢j¢a­a ¢hi¡SeLlZz

Section 31 read with section 6(V) highlights six identifiers cum differentials that distinguish the BREB and any PBS from trading, commercial and industrial establishments and negate any need for section 176 to apply to the BREB etc. Thus differentials (†`vKvb, evwYwR¨K ¯’vcbv, KviLvbv, wkí, evwYwR¨K cÖwZôvb ev wkí cÖwZôvb) have each a definition assigned under the Act of 2006. Mr. Murad Reza has extensively submitted on these differentials in emphasizing the distinction in the nature of operation and objectives of these establishments on the one hand and the BREB and PBS on the other. Mr. Reza submits that section 31 is to be read as a further clarification in the scheme of the Act of the rationale and raison d’être of the creation and functioning of the BREB and PBS.

16.         The differentials above are best understood by reference to the definitions provided under section 2 of the Act of 2006 with distinguishing features in contradistinction to BREB and PBS highlighted by Mr. Reza thus:

i.        Section 2(21): “shop” is defined as any trade or business involving the wholesale or retail sale of commodities or articles either for cash or credit;

ii.      Section 2(60): “industry” bears reference to any business, trade manufacture, calling, occupation, service or employment;

iii.    Section 2(31): “establishment” means any shop, commercial establishment, transport, industrial establishment or premises or precincts where workers are employed for carrying on any industry;

iv.     Section 2(6): “workshop” similarly refers to any place where any industrial process is carried on;

v.       Section 2(7): “factory” refers to premises where a manufacturing process is carried on;

vi.     Section 2(61): “industrial establishment” broadly encapsulates manufacturing processes and all attendant activities in workshops and establishments set up for such purpose or as declared by the government by gazette notification.

The contradistinguishing features are above highlighted to emphasize that neither the BREB or any PBS under it is either an establishment or an industry in any sense as per definitions given in the Act of 2006. It is further deduced from the above that BREB/PBS employees like the Petitioners are not workers as per definition given in section 2(65) of the Act of 2006 as they do not work in any establishment or industry in the sense of the section 2 definitions of the Act of 2006.  

17.         To further reinforce that the BREB and PBS are intended to operate dehors the labour law régime by terms of the Act of 2016 itself this Court’s attention is drawn further to section 1(4)(ka) of the Act of 2006 as stipulates that the labour law is not applicable in case of government workers belonging to government or governmental organization. That provision in section 1(4) (ka) finds specific and greater content in the Act and it is in clarification and affirmation of section 1(4) (ka) of the Act of 2006 that section 25 of the Act stipulates that all functionaries and workers of REB and PBS are to be deemed as “public servant” (Se­phL) in the same sense as that expression is used in section 21 of the Penal Code, 1860. Section 25 reads thus:

ÒRb‡meK| †Pqvig¨vb, mve©ÿwbK m`m¨ Ges †ev‡W©i Kg©KZv© I Kg©PvixMb Ges mwgwZi Kg©KZv© I Kg©PvixMb Penal Code, 1860 (Act No. XLV of 1860) Gi section 21G “public servant” (Rb‡meK) Awfe¨w³wU †h A‡_© e¨en„Z nBqv‡Q †m A‡_© (Rb‡meK) wnmv‡e Mb¨ nB‡eb|Ó

According to section 21 of the Penal Code, the expression “public servant” denotes inter alia-

“every person

… in the service or pay of the Government or remunerated by the government by fees or commissions for the performance of any public duty;

…in the service or pay of a local authority or of a corporation, body or authority established by or under any law or of a firm or company in which any part of the interest or share capital is held by, or vested in, the Government.”

18.         A ruling in an unreported decision adjudged under the Industrial Relations Ordinance, 1969 (“IRO”) and the Act’s predecessor legislation being the Rural Electrification Board Ordinance 1977 as amended by the Rural Electrification Board (Amendment) Ordinance, 1987 is relied upon by Mr. Murad Reza as continuing authority for BREB and PBS employees not being workers as per section 2(65) of the Act of 2006. That judgment in Cox’s Bazar Palli Bidyut Samity vs. Chairman Labour Court, Chittagong (Writ Petition No. 5992 of 2001) delivered on 19.4.2005 ruled against BREB/PBS employees’ status as workers having capacity to file complaints to the labour court as established under the IRO relying on an amendment to the 1977 Ordinance introducing section 23A thus:

“23A. Board, etc., not to be construed as shop, etc.- Notwithstanding anything contained in any other law for the time being in force, the Board or a Samity shall not be construed as a “shop”, “commercial establishment”, “factory” or “industry” within the meaning of the Shopa and Establishments Act, 1955 (E.P. Act IV of 1965) or the industrial Relations Ordinance, 1969 (XXIII of 1969).”

That status, Mr. Murad Reza, submits prevails presently on account of and notwithstanding

(a)    the Act having repealed the REB Ordinance of 1977 as amended in 1987; and

(b)   the Act of 2006, as a consolidating statute, having repealed all three pieces of legislation specified in section 23A quoted above.

Section 23A is now found replicated in the impugned section 31 reinforced by the provisions of sections 25 and 30 (the latter declaring BREB and PBS service to be urgent and essential in nature) of the Act. That being the case, Mr. Murad Reza asserts that there is left no scope for BREB and PBS workers to draw on the right to form trade union under section 176 of the Act of 2006. Mr. Murad Reza in a comparative study done by him satisfactorily submits that BREB/PBS are not on the same footing with PDB, DESCO and DPDC etc. as these carry out their operations on a non-profit basis and not on commercial basis. This, therefore, does not permit of any comparison to be made between the Writ Petitioners and employees of other organizations like the DESCO or DPDC. The BPDB is created by the Bangladesh Power Development Board Order, 1972 whereas there is no such agenda like BREB to provide electricity to the rural community for developmental purpose. As such BPDB and BREB are not found to be on the same footing. As for DESCO and DPDC, these are companies incorporated under the Companies Act, 1994 with an overriding commercial motive. Here as well, no parallels can be drawn between the aforesaid two companies and BREB. This Court finds, therefore, that the Writ Petitioners’ claim to be treated on the same footing with the employees of the above mentioned three other organizations is both unfounded in fact and without merit in law.

19.         Underpinning Mr. Murad Reza’s submissions has been a core interpretative thesis. That is, the Act time and time again reminds us through sections 3, 25, 30 and 31 and its preamble that it creates a legal régime which is distinct from the Act of 2006 with either piece of legislation having a separate sphere of orbit. It follows that if certain concepts under section 2 of the Act of 2016 are randomly and haphazardly sought to be transported into the BREB statutory régime that will be the undoing of the entire statutory edifice of the Act itself let alone the structural framework of the BREB.

20.         Much has been said by the Petitioners about section 31 derogating from the core precepts of labour activity stipulated in section 2 of the Act of 2006. As has been noted above, the learned Additional Attorney General, Mr. Murad Reza has drawn a distinction between these two provisions of the law. He has submitted that section 2 incorporates fundamental concepts of activity, profit and nature of work and employment that the Act has opted out of precisely because the statutory intent under the Act is of an organic growth and sustainable development of specialized services in keeping with article 16 by regulating through reasonable limitations the freedom of association guaranteed under article 38 of the Constitution. That line of argument and constitutional construction has indeed struck a chord with this Court’s understanding of the constitutional scheme.

21.         Noted also has been Mr. Murad Reza’s concern that in doing away wholly with section 31 and incorporating say, for example, section 2(60), (61), (65) and (31) of the Act of 2006 will effectively introduce or inject an alien organism into the BREB’s unique organic system neutralizing, thereby, sections 3, 30 and 25 of the Act wholly and conflicting with the raison d’être of the Act itself. By that line of reasoning, a surgical extraction of section 31, Mr. Murad Reza submits, shall result in dismantling the entire legislative edifice under the Act making one wonder whether the Petitioners have in fact asked for the entire Act to be struck down in the guise of challenge mounted ostensibly only against the constitutionality of section 31.

22.         It is evident to this Court from the preamble of the Act that the BREB has been established with a vision to ensure uninterrupted supply of electricity in predominantly rural areas for the upliftment of this country’s agro-based economy as well as the development of the other industries consonant with the fundamental developmental aim of progressively removing “the disparity in the standards of living between the urban and the rural areas” as evident in article 16 of the Constitution. Article 16 is, therefore, a tool of governance of Bangladesh which is not only to be utilized for the declared objective but also inform the making of laws like the Act. It stands to reason, therefore, that the rationale behind inserting section 31 in the Act is to implement such of the Part II Fundamental Principles of State Policy in the Constitution as provide the basis for BREB’s creation. This Court finds that this constitutionally mandated purposiveness behind the enactment of the Act, and as reflected in several of its provisions including section 31, has been lost sight of by the Petitioners in their single-minded objection to section 31 contended to illegally bar the Petitioners from forming a trade union. Their misconception stems from ignoring an established principle of law that any statutory provision should not be seen in an isolated manner. Indeed the maxim “Nemo exim aliquam partem recte intelliegere possit antequam totum itrum ateque iteram perlegrit” (“no one can rightly understand any part without perusing the whole again and again”) obligates a holistic approach to an interpretation of the Act. It is this Court’s view that section 31 considered in isolation of its statutory and constitutional context would result in a fallacious and specious interpretation of its intent and purpose unacceptable to a court of law. It is this Court’s finding that section 31 is woven into an intricate statutory and constitutional fabric prioritizing a socialist constitutional ideal of collective sectoral development over individual interests deduced form the thrust of the Act considered in its entirety. Thus if in this scheme of affairs section 31 of the Act is considered in an isolated manner then the intention of the legislature and the purpose of the Act stand to be totally frustrated.

23.         It is appreciated further that the publicly beneficial dimension to BREB’s creation and continuance is manifested in its status as a statutory public authority established by the Rural Electrification Board Ordinance, 1977 for the purpose of rural electrification “and taking measures for effective use of electrical power for development of the rural economy of the country”. Presently, the BREB is under a fresh statutory dispensation under the Act. Designated under section 3(a) of the Act to be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and for it to sue and be sued by its name, BREB’s Chairman (who will also be its President) and permanent members are all denoted by section 5(1) (ka) and (kha) to be appointed by the government. By the Court’s reckoning the BREB indeed, therefore, fulfils all requirements of a “statutory public authority” as defined in article 152(1) of the Constitution to mean “…any authority, corporation or body the activities or the principal activities of which are authorized by any Act, ordinance, order of instrument having the force of law in Bangladesh.”

24.         This is the defining distinguishing feature complemented by BREB’s non-profit basis of operation as a cooperative that in this Court’s view further erodes the Petitioners’ arguments to liken it to BPDB, DESCO, DPDC et. as operate with a predominantly commercial motive. This Court in accepting Mr. Murad Reza’s arguments finds that BREB and PBS fall outside the purview accordingly of the Act of 2006 by dint of section 1(4)(ka). It necessarily follows that the section 176 right to form a trade union does not ensure to benefit of BREB/PBS workers as the Petitioners.    

25.         Finding that the impugned section 31, therefore, operates within this purposive statutory scheme contributing to a sound economy based on disciplined management of availability of electricity at reasonable prices, it is not difficult equally to adjudge upon the necessity of a disciplined workforce cooperating to attain such a goal. Such high-priority objective, raising existential issues for a predominantly agrarian society that is well poised now to take a leap on to the next level of progressive development, must indeed have as its constituents focused agenda and targets fashioned for the greater good without detractions as are avoidable.

26.         In light of the above, this Court holds that the Petitioners have failed to make out a case that section 31 of the Act debars workers and labourers from forming trade union in a manner as exceeds the limits of the restrictions sanctioned in article 38 of the Constitution.

27.         Apropos of the findings above, this Court is unable to accept Mr. Probir Neogi’s arguments on behalf of the Petitioners that:

(a)    if the Rule is allowed, then it has to be concluded that no judicial review of any law of Bangladesh is permissible on the ground that in the making of a law principles set out in Part II of the Constitution have not been applied by the State as otherwise envisaged under Article 8(2) of the Constitution ;

(b)   the impugned section 31 is ultra vires the spirit and objectives of socialism as contained in the Preamble of the Constitution, which is one of the basic provisions of the Constitution as per Article 7B of the Constitution; and

(c)    the impugned section 31 is further violative of fundamental rights guaranteed under Article 38 of the Constitution read with Articles 26 through 43 of the Constitution.

In arriving at the conclusion above this Court has indeed gone for a strict scrutiny of the law (A.P. v. P. Laxmidevi, AIR 2008 SC 1640) and objectively determined on the vires of the impugned section (Oali Ahad v. Bangladesh, 26 DLR 376; Municipal Corporation v. Jan Mohammed, AIR 1986 SC 1205). In reminding this Court of such tenets of judicial reasoning, Mr. Probir Neogi has also acknowledged it to be a settled principle of law that when the vires of a law is challenged, an exercise in judicial review commences with the presumption of validity of the law in question. He has reminded this Court of its constitutional obligation to apply the settled principles and established tests of judicial review before arriving at its decision whether a law under challenge is intra vires or ultra vires. This Court sees no reason for deviating from such an exercise in the disposal of this Rule.

28.         It is also asserted that the Respondent’s focal argument of the Act of 2006 not fitting into the Act is misconceived and rooted in and stems from the thought pattern of treating trade union/workers and employees’ associations as a taboo and in that context Mr. Neogi has taken this Court through the historiography of the emergence of trade unions as a significant by-product of the 18th – 19th century Industrial Revolution in Great Britain.

29.         Mr. Neogi submits further that the superior courts in many cases listed the judicially sanctioned objective standards for determining whether an employee is a worker or not. He has highlighted, for example, that in Md. Mehdi Hassan and another v. The Govt. of Bangladesh and others, 1 LCLR [2012] HCD 380, upon an exhaustive examination of many cases from Indian and our jurisdiction, this Court has held that regardless of the name of their respective designations the employees who discharge their duties and responsibilities in accordance with the instructions from their superior and who do not have any authority to deviate from the instruction,  policy and guidance laid down by their superiors, and who do not have the authority to hire or fire other employees, are “workers”. It is submitted further by Mr. Neogi that in view of the cumulative effect and harmonized interpretation of the provisions of law as mentioned above, the employees of BREB/PBS are “workers” within the meaning of the Act of 2006 and they have statutory rights to form trade union/association and the restrictions imposed by section 31 of the Act upon such right are not reasonable, and as such the said section 31 is ultra vires Article 38 of the Constitution.

30.         This Court deduces from the above, and upon a comparative analysis of the broad objectives of the Act of 2006 and the Act, that both these pieces of legislations have distinct spherical paths of operation and orbit with legislative intent to ensure against the overlapping of one statutory régime with the other. It is against that context and upon an evaluation of the statutory scheme under the Act itself that the impugned section 31 is found as inextricably woven in a tight knit statutory fabric which section 31 is clearly interlinked to other notable provisions in the Act being, for example, sections 3, 25 and 30. All these provisions read together speak of mutual dependence in which each section acts as a reinforcement for the other. It is also found that placed as it is in the scheme of the Act, section 31 plays a reaffirming role declaring the sum total of the legislative intent and objective under the Act, i.e., that of the role of tidying up the legislative content of the Act as a whole and assumed and achieved under section 31. In that context, the surgical striking out and removal of section 31 from the Act’s legislative framework would, in this Court’s view, definitely risk the legislative edifice of BREB not only to be dismantled but to crumbled down irreparably.

31.         Aside from the considerations above, this Court has taken a hard look at the textual formulation of section 31 itself with a view to examining how, if at all, it falls foul of and is repugnant to the reasonably restricted guarantee under article 38 of the Constitution. It is found in this regard that being non obstanate in nature, the thrust of section 31 is found to be essentially inward looking as it ties up any loose ends not covered in the other provisions of the Act and, thereby, completes the legislative picture of the BREB and presents it to us in its entirety.

32.         Indeed furthermore, there is no express stipulation or declaration in section 31 as restricts the formation of trade unions as contended by the Petitioner nor is there any scope for a reasonable construction to be given it as implicitly deterring or obstructing the formation of such trade unions. In other words, the focused attack mounted in this Writ Petition of section 31 for allegedly negating any guarantee under article 38 appears to this Court to be wholly misconceived. The Petitioners are found to have wholly misdirected their inquiry into a perceived legislative threat by singling out a provision in a law either generally or specifically as has no bearing on the Constitutional guarantee they contend to be threatened by it.

33.         As indicated earlier, this Court sees all provisions of the Act as woven into an intricate legislative fabric. This, therefore, lends to the inextricability of section 31 in the very scheme of the Act and surgically taking out the section as being unconstitutional would result in the Act being dismantled in its entirety. Indeed, the Petitioners have not sought such an outcome of the present judicial review exercise.

34.         Submissions on behalf of the Respondent No. 5, BREB by learned Senior Advocate Mr. Mahbubey Alam and learned Advocates Mr. Fazle-Noor Taposh and Mr. Reja-e-Rabbi Khandoker have further led this Court to delve deep into the role section 31 plays. That role, as Mr. Mahbubay Alam satisfactorily submits, is played out in the larger objective served by the Act itself.

35.         The Act’s rationale is at the outset best understood in contradistinction of the Act of 2006. Described in a nutshell, the Act of 2006 emphasizes the responsibility of employers  and employers and the scope of their functions. The Act on the other hand has an institutional focus on the status and nature of operation of the BREB and PBS. In extensively stipulating the cooperative mode of operation at all levels of administration, the Act renders the notion of collective bargaining superfluous. The Act’s aim, manifested amply in its preambular declarations, is the attainment of a collective social good on the lines of the constitutional objective under article 16. The Act projects the BREB and PBS as tools or facilitators indispensable for a rejuvenation of the agro-based rural economy through provision of an essential service, i.e., electricity. The Act, this Court finds, is imbibed with a sense of urgent mission single-mindedly pursued rural economic progress. The chosen avenue for such economic upliftment, as informed by the fundamental principle of progress and reduction of disparity underlying article 16 of the Constitution, is not merely the provision of electricity but the collective means of providing the same. Nowhere in the Act is community action and collective welfare better extolled and entrenched than in section 6(U) above cited. Indeed, this Court reads section 6(U) as the raison d’être of the BREB. The cooperative mode of organizing potential consumers as a means to project-implementation and management as well as providing essential services focal to the BREB’s functions is found equally focal to the Act’s complexion as an overtly beneficial piece of legislation. Consumers themselves emerge as the biggest stakeholder both in the provision and use of electricity supplied without disruption. Collective bargaining in its conventional sense and as understood under the governing labour legislation being the Act of 2006 becomes an entirely redundant if not an unworkable concept in such scheme of affairs.

36.         This is where the Petitioners’ challenge mounted against Section 31 is found to be the weakest and least developed. This Court finds that the Petitioning have to their detriment ignored a calibration of section 31 within the fabric of the Act itself in favour of instead gauging its validity with standards prevalent under the Act of 2006. As Mr. Fazle Noor Taposh has succinctly pointed out section 31 only reaffirms the law in the Act as it is. To that this Court will add that section 31 reinforces, complements and clarifies what is already said in section 6(U). It is but the other side of the coin as it were and taken together both sections 6(U) and 31 complete our picture of what the BREB actually is and stands for. If section 6(U) explains the organizational basis of the PBS and the role the BREB in forging such organizational units, then section 31 by way abundant caution explains what the BREB and the PBS are not to be confused with. In doing so the section 31 clarifies that the BREB/PBS are not to be confused with industries and establishments. It is only in that specific limited sense that the reference therein to the Act of 2006 can reasonably merit examination and no more. In other words, the Act of 2006 provides standards to form trade unions in industries-establishments etc. organized on a commercial basis and engaged in activity for profit. The Act through section 31 simply declares that the BREB and PBS are not to be equated with such industries, establishments etc. Similar to section 23A introduced under REB (Amendment) Ordinance, 1987, section 31, therefore, is found to have a “tidying up” role in the scheme of the Act. To read anything beyond that into section 31, as indeed the Petitioners have done, as otherwise unreasonably and unjustifiably restricting their guaranteed freedom to form associations and unions is utterly misconceived. Consequently, this Writ Petition, as Mr. Mahbubey Alam has pointed out, reads fundamentally as one pressing the right to form a trade union as contemplated under present labour law legislation. To press such a right through the circuitous route of impugning section 31 is found to be ill-advised if not outright callous and reckless. In that sense, the argument that section 31 is in any way ultra vires article 38 is found to be deeply flawed.

37.         On the question of article 38 itself we return to Mustafa Kamal, J’s dictum above in the Mohiuddin Faruque case, and this Court emphasizes that in their arguments of the priority to be given article 38 in determining the vires of section 31 the Petitioner would have been better served in exploring further the essential constitutional link between articles 16 and 38. The constitutional scheme is such that each gives context to the other and cannot, indeed must not, be read to the exclusion of either, especially in a case as this.

38.         It must not also be lost sight of that any challenge to the vires of a statutory provision on the ground that it fails the “reasonable restriction” test must proceed on an “objectivity test” properly identified by any aggrieved person. Any restriction to a guaranteed freedom arising under Part III of the Constitution will invariably have to pass that test. Interestingly, that test seeks to strike a balance between communal good and individual welfare. That was the finding in Oali Ahad vs. Govt. of Bangladesh reported in 26 DLR (1974), 376 where D.C. Bhattacharya, J observed thus:

“… It must however be an objective standard which, in a given circumstances, an average prudent man will employ. It must not, of course, be arbitrary or of excessive nature, and should be commensurate with the damage likely to be caused as a result of the disturbance of public order arising from the exercise of the said fundamental right. The concept of reasonableness has been introduced in constitutional provisions for harmonizing individual interests with collective interests, and it endeavours to strike a proper balance between the guaranteed rights and the social good.”

The community and social good intended to be served by the impugned section 31, therefore, having been established to this Court’s full satisfaction, and for the reasons explained above, this Court finds no merit in the Application and no substance in the Rule issued.

39.         In the result, the Rule stands discharged.

40.         There is no Order as to costs.

41.         Communicate this Order at once.

         Ed.