Pragati Industries Ltd. Vs. A. K. M. Mafizur Rahman, 2 LNJ (2013) 541

Case No: Writ Petition No. 4605 of 2008

Judge: M. Moazzam Husain,

Court: High Court Division,,

Advocate: Mr. Sk. Zulfiqur Bulbul Chowdhury,,

Citation: 2 LNJ (2013) 541

Case Year: 2013

Appellant: Pragati Industries Ltd.

Respondent: A. K. M. Mafizur Rahman

Delivery Date: 2011-03-08

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)

 
Abdul Awal, J.
And
M. Moazzam Husain, J.
 
Judgment
08.03.2011
 
Pragati Industries Ltd.
..... Petitioner
-Versus-
A. K. M. Mafizur Rahman and others
..... Respondents
 
Bangladesh Service Rules.
Rule 9
In order to prevent manifest injustice from being perpetuated the entry of date of birth in the service book may be corrected, provided such correction stands the test of reasonableness.
Mere entry of the date of birth in the service book/register irrespective of its proven infirmities and reasonable nexus to the actual date of birth borne out by irrefutable evidence cannot be trea-ted as a cast-iron rule to be followed in all circumstances. In order to prevent manifest injustice from being perpetuated the entry may be corrected, provided that such correction stands the test of reasonableness in terms of chain reaction and other  incidents of it  in the service set up.   ... 24
 
Industrial Relations Ordinance, (XXIII of 1969)
Section 34
Undisputable date of birth of a worker constitutes right guaranteed under law contemplated under section 34 of the Industrial Relations Ordinance, 1969, and is enforceable thereunder. Date of birth of a worker borne out by a document like the Secondary School Certificate remaining unassailed in terms of credibility, constitutes, in fit circumstances, right guaranteed or secured to him by or under the law, award or settlement as contemplated under section 34 of the Industrial Relations Ordinance, 1969 and is enforceable under the said section of law....25
 
Mozammel Haque  Chowdhury Vs. Chairman, Labour Court & another, 10 BLC 485; Chair-man Power Development Board and others Vs. Chairman, Labour Court, Khulna, 1981 BLD (AD)59; Abdul Hamid Vs. Chairman,Second Labour Court, 29 DLR 295; Banglad-esh Marine Fisheries Association Vs. Bangla-desh 52 DLR 274 Ref.
 
Mr. Sk. Zulfiqur Bulbul Chowdhury
......For the petitioner
No one appears
...…For the respondent

Writ Petition No. 4605 of 2008
 
JUDGMENT
M. Moazzam Husain, J:
 
This rule at the instance of the second- party employer, was issued calling in question the judgment and order dated 29.5.2008 passed by the Labour Appellate Tribunal, Dhaka in Appeal No.2 of 2008 affirming those of the First Labour Court, Chittagong in IRO Case No. 33 of 2006.
 
Facts leading to this rule, briefly stated, are that the first party respondent filed the IRO case under section 34 of the Industrial Relations Ordinance, 1969, (“the IRO” for short) in the First Labour Court Chittagong, alleging, inter alia, that  he is a permanent worker  serving in the  petitioner-company. His service record is satisfactory and he was elected CBA president on several terms. The petitioner by  a general notification issued vide Memo dated 29.12.2005 brought, amongst other things, to the notice of the first party respondent  an incorrect date of birth against his name which virtually curtailed around two years time from the length of service he is entitled to. 
 
Further case of the first party respondent is that he submitted SSC certificate and a testimonial along with the application for employment. According to SSC certificate his date of birth is 15.6.1952. Therefore, there is no scope of dispute or confusion about his date of birth. As per section 14A of the Public Corporation (Management Coordination) Ordinance, 1986, shortly, “the Ordinance of 1986” the retiring age of the workers of all public corporations and allied bodies was enhanced from 57 to 60 years. In view of the said Ordinance the respondent as a worker is entitled to retire on completion of 60 years of his age. And accordingly date of his retirement becomes due on 15.6.2012.  The first party respondent sent by registered mail a representation dated 27.7.2006 addressing the petitioner enclosing copies of all the necessary papers and documents requesting   correction of the official records containing disputed entry as to his age. The petitioner received the application but did not take any step nor was the respondent informed about the fate of his petition. The respondent was not allowed to see for himself his service book/register either.
 
The petitioner as second party contested the case by filing written objection stating, inter alia, that the respondent made an application for employment on 27.8.1974. He was appointed as Mechanical Helper on 01.10.1974. At the time of making application the respondent did not file his SSC certificate. He rather mentioned in his application that he was 24 years of age. On that basis his date of birth was noted in his service book as 27.8.1950. The date of birth continued in the successive voters’ lists of the office.  The respondent was promoted to the post of ‘Master Technician’ on 30.6.1985. The post of Master Technician is included in the national pay scale and none serving in the national pay scale can be a ‘worker’ under the law.
 
As per rule 9 of Bangladesh Service Rules (hereinafter referred to as “the BSR”) the date of birth declared by the public servant in his/her application for service is binding on the applicant for the purpose of calculation of the date of retirement. The respondent declared his age as 24 years in his application. On that basis his date of birth squares with 27.8.1950. The respondent not being a worker the extended age of retirement provided by the Ordinance of 1986 is not applicable to him.  As an employee under the national pay scale his service is invariably limited to 57 years. Moreover, sub-sections (1) and (2) of section 28 of the present Bangladesh Srama Ain, 2006, shortly, “Srama Ain,” have fixed the retirement age of the workers at 57 years to be calculated from the date of birth declared in the application for the job. Thus, there is no scope for correction of date of birth declared at the time of entry into service or entitlement of extended age of retirement.
 
The Labour Court took up the case for trial. The first party respondent examined himself as PW.1 and, among other things, he proved his SSC certificate (Ext.1), passport (Ext.2), Freedom Fighters’ Certificate (Ext.3),-all testifying his date of birth as claimed by him. He also proved the list of LPR-2007 dated 02.02.2007 (Ext.6) issued from the office of the petitioner showing 26.8.2007 as his date of retirement. 
 
The petitioner as second party did not examine any witness nor did produce any papers or documents in support of its case. An inquiry report by Comilla Education Board was, however, produced before the court at the instance of the petitioner which instead of helping the petitioner company supported the case of the respondent.  Trial Court allowed the case with the observations, inter alia, that the complainant is a worker within the meaning of section 2(v) of the Employment of Labour (Standing Order) Act, 1965 as well as section 2(XXVIII) of the IRO. He passed his SSC Examination six years before his entry into service and the SSC certificate testifies his date of birth as claimed.  Nothing to the contrary is proved by the second party. Trial court further found that the fist party respondent comes within the definition of worker under Ordinance of 1986. He, in that sense, is entitled to enhanced age of retirement.
 
On appeal the Appellate Tribunal made the similar findings in apparently stronger language used touching upon the failure of the appellant employer to press home its case.
 
The points essentially sought to be canvassed by Mr. Zulfiqur Bulbul Chowdhury are threefold, namely, that the case is not maintainable under section 34 of the IRO as the section is intended to enforce the ‘established right’ not to settle  new disputes as is sought to done by the respondent.  In support of his contention Mr. Zulfiqur Bulbul referred to the cases of Mozammel Haque Chowdhury v Chairman, Labour Court & another reported in 10 BLC p 485. ; Chairman Power Development Board & others v Chairman, Labour Court, Khulna reported in 1981 BLD (AD) p 59.; Abdul Hamid v Chairman, Second Labour Court reported in 29 DLR p 295 and Bangladesh Marine Fisheries Association v Bangladesh reported in 52 DLR p 274.
 
Second limp of his argument was that the first party respondent is not a ‘worker’ as his post is included in the national pay scale. None serving in the national pay scale can be a ‘worker’ as per law. The respondent, therefore, is not entitled to extended age of retirement provided under the Ordinance of 1986. And finally, as per Rule-9 of the Bangladesh Service Rules and section 28 of the Srama Ain,  2006 the respondent is bound by the date of birth declared by him in his application for the job. There is no scope for change or modification of the same by subsequent production of papers or documents testifying otherwise.
 
To take up the second point first, ie., whether the first party respondent is a ‘worker’ as contemplated under the Employment of Labour (Standing Order)Act,1985 and the IRO.  The Labour court appears to have addressed the point elaborately by reference to relevant sections of Employment of Labour (Standing Order) Act, 1965 and the IRO and came to the conclusion that the respondent is a worker.  The Tribunal affirmed the judgment primarily on the failure of the appellant to prove anything to the contrary.
 
The definition of ‘worker’ given in section 2(v) of the Employment of Labour (Standing Order) Act, 1965, is as follows:
 
Section 2(v): ‘worker’ means any person including an apprentice employed in any shop, commercial establishment or industrial establishment to do any skilled, unskilled, manual,  technical, trade promotional or clerical work for hire or reward, whther the terms of employment be expressed or implied, but does not include any such person-
  1. who is employed mainly in a managerial or administrative capacity ; or
  2. who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to officer or by reason of power vested in him, functions mainly of managerial or administrative nature.   
 
Definition of a ‘worker’ given in section 2(XXVIII) of the IRO, reads as follows:
 
“Section 2(xxviii): “worker” and “workmen” means 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 and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute, but does not include a person-
  1. employed as a member of the watch and ward or security staff or confidential assistant, cypher assistant of any establishment;
  2. employed in a managerial or administrative capacity;
  3. who being employed in a supervisory capacity performs, by virtue of the duties attached to his office or by reason of the powers given to him, functions of managerial or administrative nature.
[Exception. Notwithstanding anything contained in sub-clause (a), a person employed as a member of the watch and ward   or security staff or confidential assistant or cypher assistant of any establishment shall be entitled to all financial benefits admissible to a worker or workman of similar grade or category.]”  
 
A bare reading of the sections of law quoted above suggests that pay-scale, national or local has nothing to do with the question of determination of a person’s status as ‘worker’. The petitioner did not come up with any authority or law to substantiate its point either. The contention of Mr. Bulbul that the respondent himself admitted that he used to do supervisory works, thus, he ceased to be a worker does not also commend to us. The exact statement made by the first party respondent is:  Avwg wb‡RI KvR Kwi &Ges I‡`i KvR †`Lvïbv Kwi| The statement plainly means that the respondent alongside his own works does some supervisory works. Law quoted above can hardly be construed to mean that a person even if employed in supervisory capacity ceases to be a worker unless he performs, by virtue of the duties attached to his office or by reason of the powers given to him, functions of managerial or administrative nature.  No such case is made out by the petitioner.  Our considered view, therefore, is that the respondent is a ‘worker’ within the meaning of the Employment of Labour (Standing Order) Act, 1965 and the IRO.
 
Reverting back to the first point, ie., a right yet to be settled is sought to be enforced by the respondent  which is not maintainable under section 34 of the Employment of Labour (Standing Order) Act, 1985.  Mr. Bulbul has taken pains to press home the point and tried to stress on the contention that production of SSC certificate at the fag end of one’s career is not only unacceptable in law but also amounts to fraud on the employer. We are unable to follow the logic of his contention. It is difficult to conceive in human conditions that a sane man possessed of unimpeachable evidence in his favour like SSC certificate instead of using it to his benefit would keep it undisclosed till the end of his career with a view to defrauding his employer. Among the cases he referred to on this point Mr. Bulbul seems to have placed considerable reliance on the case of Mozammel Haque Chowdhury reported in 10 BLC p 485.
 
In the said case a Division Bench of this Court while sitting upon a dispute of age raised by a worker took into notice the principle enunciated by our Appellate Division in the case of Power Development Board (supra) and made the following observation:

“…..determination of the age of the petitioner is not a right secured or guaranteed within the meaning of section 34 of the Ordinance.
 
In the cited case the employer asserted that a specific date of birth was given by the worker himself at the time of entry into the service. His ACR contained the date of birth as given by him. According to the date of birth given by the worker his retirement order was passed. At this stage he came with an objection to the Service Book entry as unilateral and conjectural by reference to a certificate issued by a High School where, as claimed, he was a student of class VIII, showing a different date of birth.  With the factual background High Court Division took the view that this being a disputed question of fact and not a right secured or guaranteed by law is not determinable by the Labour Court under section 34 of the IRO.
 
In the next case, ie, the case of Power Development Board, 1981 BLD (AD) 59, our Appellate Division held:

“It is true that they, along with three other respondents were appointed before Nov,1964 were allowed the designation of Line-Helpers but there is no post like Line-Helpers in the revised pay scale effective from Nov, 1964 and as such mere entry in the service books or even their letters of appointments, of this designation  will not entitle them to the pay scale of lineman.”

In this case the Appellate Division further held:

“The respondents themselves are not sure of their right to the designation and pay scale of lineman appears from their respective applications  under section 34 of the industrial relation ordinance in which they prayed for establishment of their right to designation and pay scale of Lineman and for  enforcement of their right therefor. Section 34 is not meant for establishment of any right, but it provides for enforcement of any existing right, guaranteed or secured by law, award or settlement.” 
 
The observations of the Appellate Division came in the following factual background:

         Some workers (designated as Line-Helpers) of  the then Water and  Power Development Authority, Shortly, “WAPDA”, claimed the designation as well as pay scale of lineman under the revised pay scale.  As their claim was rejected they individually filed application in the Labor Court under sec 34 of the IRO for enforcement of their right to the designation and pay scale of ‘lineman’ and came out successful up to the High Court Division.

         Their pay scale was governed by the modified pay scales of WAPDA till Nov 24, 1964. Under the modified pay scale there were three categories of employees under the same designation of “Line-Helpers”. But their pay scale varied according as the variation of skill and experiences. From 24.11.1950 modified pay scale was replaced by revised pay scale under which post of Line-Helpers were abolished altogether and the incumbents tuned into either “Lineman” or “Helper”. Some of the respondents, appointed as Line Helpers, continued their designation as such even after introduction of the revised pay scale. And similarly those who were appointed after revised pay scale as Helpers were designated as “Line-Helpers” and these facts were entered in their service books although there was no post of Line-Helpers since 1964.
 
None of the decisions referred to by Mr. Bulbul seems to be of any help to him for the precise reason that peculiar facts of individual cases did not suggest that the right sought to be enforced in those cases were secured or guaranteed by law. In both the cases facts alleged were by their nature, disputed and not established or secured by law admitting of enforcement under section 34 of the IRO. Two other cases reported in 29 DLR p 295 and 52 DLR p 274 on the face of them are far distinguishable and removed from the point raised thus are of no avail for the petitioner.
 
The peculiarity of facts of this case is that the first party respondent came up and examined himself as PW.1. He proved, amongst others, his SSC certificate (Ext.1); Passport (Ext.2); Freedom Fighters’ Certificate (Ext. 3); his representation (Ext.5) to the authority-all in order to show that his date of birth is 15.6.1952 and accordingly his date of retirement would be due on 15.6.2012. But the petitioner did neither examine any witness nor produce any document to show otherwise. Rather an inquiry report of the Comilla Education Board submitted at the instance of the petitioner itself conformed the date of birth sought to be established by the first party respondent.
 
The first party respondent stated on oath that he passed SSC Examination six years before he made application for the present job. And when he entered the job he was a student of B.Sc. He further stated that at the time of making application for the job he submitted the SSC certificate and a testimonial. He denied having mentioned anywhere 24 years as his age. He has rather indicated that he fell victim for his trade union activities. 
 
The impressive body of evidence available on records remains unassailed for no steps was taken by the petitioner to impeach the credit of the same or to prove anything to the contrary.  Curiously, office of the petitioner company gave employment to a young man studying at the material time in the undergraduate class but it chose not to bother for his certificates instead, felt it convenient to enter in his service book/ register a date of birth the basis of which they cannot prove.
 
Mere entry of the date of birth in the service book/register irrespective of its proven infirmities and reasonable nexus to the actual date of birth borne out by irrefutable evidence cannot be treated as a cast-iron rule to be followed in all circumstances. In order to prevent manifest injustice from being perpetuated the entry may be corrected, provided that such correction stands the test of reasonableness in terms of chain reaction and other  incidents of it  in the service set up. 
 
Date of birth of a worker borne out by a document like the Secondary School Certificate remaining unassailed in terms of credibility, constitutes, in fit circumstances, right guaranteed or secured to him by or under the law, award or settlement as contemplated under section 34 of the Industrial Relations Ordinance, 1969 and is enforceable under the said section of law. 
 
From the above discussions we are of the view that a right guaranteed or secured by law, award or settlement as contemplated under section 34 of the IRO emerges in favour of the first party respondent which comes within the meaning of section 34 of the IRO and the case of the first party respondent under the said section is fairly maintainable.
 
Now the related question of entitlement of the respondent to the enhanced age of retirement comes in. Public Corporation (Management Co-ordination) 0rdinance, 1986 provides the privilege for the workers serving in public corporation enhanced age of retirement, ie, 60 years instead of 57 years allowed in other laws.
 
Sections 2(b), 2(e), 3 and 14A of the Public Corporation (Management Co-ordination) 0rdinance, 1986 would be relevant for ascertaining the question of entitlement of the respondent to enhanced age of retirement. The sections are quoted below.

Section 2(b): “enterprise” means an industrial or commercial enterprise, a company or a firm vested in, or owned by, or the majority shares in which belong to, the Government and which is placed under a public corporation by or under any law for the time being in force or an industrial or commercial enterprise, a company or a firm owned, managed or maintained by a public corporation;   

Section 2(e): “worker” means 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

Section 3: The provisions of this Ordinance and the regulations made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.  

Section 14A: (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.]  
 
The Public Corporation (Management Co-ordination) 0rdinance, 1986 is a special law intended to provide for co-ordination of management of the affairs and business of certain public corporations and for matters connected therewith. Section 3 of the Ordinance is an overriding clause excluding operation of all other law in its area of operation. The definition of ‘enterprise’ given in section 2(b) of the Ordinance covers the employer company. The application of the Ordinance to the company is not denied by the petitioner. What is said by the petitioner is that the Ordinance does not apply to the respondent as he is not a worker. The first party respondent is already found to be worker within the meaning of the Employment of Labour (Standing Order) Act, 1965 as well as the IRO.   Now it remains to be seen whether he is a ‘worker’ within the meaning of the Ordinance of 1986 so as to be entitled to the enhanced age of retirement.
 
By a plain reading of section 2(e) of the Ordinance of 1986 quoted above we are left with no doubt that the first party respondent comes within its ambit as a worker.  Thus as a worker employed in the petitioner company the first party respondent is entitled to the enhanced age of 60 years  provided by section 14A of the Ordinance. 
 
The last point canvassed was about the question of finality of the date of birth declared by the respondent. Mr. Bubul in his bid to substantiate the point referred to rule 9 of the BSR and section 28(2) of the Srama Ain, 2006 and submitted that the date of birth declared by the respondent and accordingly entered in his service book is binding upon him. His application for correction or change of his date of birth is barred by law. We are not at all persuaded by his contention for the simple reason that here is a case where the respondent worker has denied having declared any such age or date and the petitioner has clearly failed to prove anything to the contrary. There is, therefore, no age and/or date of birth declared by the respondent worker so as to attract the rules of the BSR or the Srama Ain in this case. Furthermore, the Srama Ain, 2006 by its transitory provision contained in section 353 has excluded the cases pending on the date of its coming into force from its operation. The instant case being one filed before the Srama Ain came into being is governed by the law as it stood at the material time.
 
It follows, therefore, that no age or date of birth has ever been declared by the first party respondent as claimed by the petitioner. And he is a worker within the meaning of section 2(e) of the Public Corporation (Management Co-ordination) Ordinance, 1986 and accordingly entitled to get the privilege of extended time of retirement under section 18A of the said Ordinance.  His right to go on retirement on the basis of the date of birth mentioned in the Secondary School Certificate remains to be his right secured under law enforceable under section 34 of the IRO.   
 
For all the reasons stated above we find no substance in the submissions of Mr. Zulfiqur Bulul so strenuously made before us. The rule by the same token, being devoid of merit, is liable to be discharged. 
 
In the result, this rule is discharged. The impugned judgment and order passed by the Labour Appellate Tribunal affirming those of the First Labour Court, Chittagong, are affirmed.  The first party respondent will be entitled to his cost throughout.
 
Communicate a copy of this judgment at once.
 
Ed.