Pioneer Garments Limited Vs. Md. Abul Kalam Azad and another, 52 DLR (AD) (2000) 45

Case No: Civil Petition for Leave to Appeal No. 779 of 1998

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: MR. Shamsul Hoque Siddique,,

Citation: 52 DLR (AD) (2000) 45

Case Year: 2000

Appellant: Pioneer Garments Limited

Respondent: Md. Abul Kalam Azad

Subject: Labour Law,

Delivery Date: 1999-8-19

Supreme Court
Appellate Division
Mustafa Kamal, CJ.
Latifur Rahman, J.
Bimalendu Bikash Roy Choudhury, J.
A MM Rahman, J.
Mahmudul Amin Choudhury, J.
Pioneer Garments Limited represented by its Managing Director
Md. Abul Kalam Azad and another
August 19, 1999.
The Industrial Relations Ordinance, 1969 (XXIII of 1969)
Section 34
The respondent no. 1 is a production manager only in name or whether he is actually working in a managerial capacity is to be determined by the Labour Court i.e. whether the respondent is an officer or worker is a matter of adjudication by the Labour Court and not by the High Court Division…………….(4) 
Cases Referred To:
Senior Manager, Dosta Textile Mills Ltd Ranirhat, Feni and ors vs Sudhansu Bikash Nath 40 DLR(AD) 45.
Lawyers Involved:
Shamsul Haque Siddique, Advocate-on-Record— For the Petitioner.
Waliul Islam, Advocate-on-Record — For Respondent No. 1.
Not represented—Respondent No. 2.
Civil Petition for Leave to Appeal No. 779 of 1998.
(From the judgment and order dated 3-5-1998 passed by the High Court Division in Writ Petition No. 1419 of 1990.
Mahmudul Amin Choudhury J.
           This petition for leave to appeal is against judgment and order dated 3-5-1998 passed by a Division Bench of the High Court Division in Writ Petition No-1419 of 1990 discharging the Rule Nisi.
2. The short fact required for the disposal of this matter is that, respondent No. 1 was appointed a Production Manager of the petitioner-company who joined the company as such on 3-11-1994 and his case is that though his designation was Production Manager but he was not given any managerial or supervisory responsibilities and his duty was confined to physical and manual kind of works. It is his further case that he was forced to go on leave on 10-6-1985 which was extended upto 23- 6-1985 and while on leave he was served with a notice to show cause by the petitioner-company on 16-6-1985 on various charges and when the reply was submitted he was allowed to resume his duties on 7-7-1985. This respondent worked for the months of October and November, 1985 but was given pay of 1/2 of the month of October. He then demanded his full pay for the aforesaid two months and on being furious the petitioner obstructed the respondent in his duties with effect from 1-12-1985 though he reported for duty on every day. Thereafter respondent No.1 filed IRO case No. 2 of 1986 in the Third Labour Court of Dhaka for directing the petitioner to allow him to resume his duties and pay his arrear salary as admissible.
It appears that before the Labour Court the petitioner entered appearance and filed written objection denying the material allegations and further alleging that the case filed is not maintainable as respondent No. 1 was appointed as production manager in the factory at a monthly salary of Taka 4,500.00 which was subsequently raised to Taka 6,000.00 and while performing duties as such he misappropriated valuable properties of the petitioner-company for which he was directed to show cause by a letter dated 16-6-1985 and a lenient view was taken against him but he continued to commit mischief resulting in loss to the company and he absented himself from his duties without prior permission from the petitioner.
Learned Third Labour Court, Dhaka allowed the aforesaid IRO case ex parte by judgment dated 28-3-1988 and directed the petitioner to pay all arrear salaries of respondent No. 2 within 60 days from the date of judgment and also directed to allow him to resume his duties in the petitioner-company.
On being aggrieved by this judgment of the Labour Court the petitioner moved the High Court Division under section 102 of the Constitution of the People’s Republic of Bangladesh and obtained Rule Nisi. But the same was subsequently discharged by the aforesaid judgment.
Learned Advocate appearing on behalf of the petitioner submits that respondent No. 1 was appointed as Production Manager in the petitioner- company and as the job was of managerial and supervisory nature, the Labour Court committed illegality and wrong in entertaining the IRO case. It is submitted that he was an officer, not a worker. It is submitted that any workman may apply before the Labour Court for the enforcement of any right granted to him by or under any law but in the present case as respondent No. 1 was not a labourer he cannot invoke the jurisdiction of the Labour Court under section 34 of the Industrial Relations Ordinance. He submits that even respondent No. 1 while giving reply to the notice to show cause has stated that his duty is to manage the factory. In the notice also it has been mentioned that respondent No. 1 while in the company acted in the administrative and supervisory capacity. It is submitted that both the Labour Court as well as the High Court Division failed to appreciate this aspect of the matter.
3. Entering Caveat the learned Advocate for respondent No.1 submits that mere assertion that respondent No. 1 is not a Labourer but an officer working in the management cannot be a ground for rejection of the IRO case as onus lies heavily in the petitioner to prove that which they failed before the Labour Court. They even failed to produce any paper before the High Court Division in support of their contention. In support of his submission the learned Advocate placed reliance on the case of Senior Manager; Dosta Textile Mills Ltd. Ranirhat, Feni and ors vs. Sudhansu Bikash Nath reported in 40 DLR (AD) 45. It has been held in this decision that mere designation is not sufficient to indicate whether a person is a ‘worker’ or an ‘employer’, but it is the nature of the work showing extent of his authority which determines whether he is a worker or employer.
4. It is the case of the respondent that though he was appointed as Production Manager yet the nature of his duty was manual and physical. Nothing contrary has been produced before the Labour Court by the petitioner who filed a written statement but on the date of hearing failed to appear as result of which the case was allowed ex parte. The High Court Division it appears found that in writ jurisdiction it cannot enter into the factual aspect of the case i.e. whether respondent No.1 is a Production Manager only in name or whether he actually working in a managerial capacity. This fact is to be determined by the Labour Court and not the High Court Division. It has been held that whether the post in question is the post of an officer or a worker or workman is purely a question of fact which ought to have been agitated before the Labour Court. The High Court Division rightly found that the Labour Court had jurisdiction to entertain the case when there was no material before it supporting the petitioner’s contention.
5. We have considered the submission made by the learned Advocates of both sides and in view of the aforesaid decision of this Division and in view of the decision of the High Court Division we find no merit in this petition.
The petition is therefore dismissed.