Senior Manager, M/s. Dosta Textile Mills Ltd. and others Vs. Sudhansu B Nath, 40 DLR (AD) (1988) 45

Case No: Civil Appeal No. 97 of 1985

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Mr. Mahmudul Islam,Sharifuddin Chaklader,Mr. Asrarul Hossain,,

Citation: 40 DLR (AD) (1988) 45

Case Year: 1988

Appellant: Senior Manager, M/s. Dosta Textile Mills Ltd.

Respondent: Sudhansu B Nath

Subject: Labour Law,

Delivery Date: 1987-8-3


Supreme Court
Appellate Division
(Civil)
 
Present:
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
 
Senior Manager, M/s. Dosta Textile Mills Ltd., Ranirhat, Feni and others
…………….......Appellants
Vs.
Sudhansu Bikash Nath
..........................Respondent
 
Judgement
Aug. 3 1987.
 
Employment of Labour (Standing Orders) Act, 1965
Sections 17 and 25
The Specific Relief Act, 1877
Section 42
(i) 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 the extent of his authority, which determines whether he is a worker or employer. Even if it is taken that he has supervisory function, still mere supervisory capacity will not bring him into the category of "employer". Respondent does not exercise any functions managerial or administrative in nature. He got no power to control or to supervise the work of any other person. Nature of his work does not bring him within the category of 'employer'. It is, therefore, clear that the respondent is not an’ employer' but is a ‘worker’ under the Act. The very moment it is found that the plaintiff is a worker; he is non-­suited, because his suit is not maintainable and his grievance lying in a separate forum, the Labour Court………………..(7)
(ii) The respondent was appointed by the Dosta Textile Mills as an employee in 1961 and he continued in the service of the Mills even after its nationalisation and placement under the Corporation. He has been drawing his salary from the Mills all-through and not from the Corporation and finally he has been dismissed by the Mills Authorities and not by the Corporation. Again, Service Rules of the Corporation have excluded from their ambit all 'workers', obviously because when an employee is found to be a worker, he will be governed by the Labour law. Therefore, the finding of the High Court Division that the respondent was an employee of the Corporation or that he was governed by "B.T.M.C. Service Rules" is palpably erroneous……….(10)
(iii) in view of the findings that the respondent is a worker and that he is not an employee of the Corporation whose Service Rules are not applicable to his case, the suit is not maintainable.
 
Cases Referred to-
Jogesh Chandra Datta v. Government of Bangladesh. 30 DLR 219, New Dhaka Industries Ltd.Vs. Quamrul Huda and others, 31 DLR(AD) 234 and Motaher Hossain Khan v. Bangladesh Jute Mills Corporation, 36 DLR(AD) 282, Mosharraf Hossain Chowdhury v. General Manger, Titas Gas Transmission & Distribution Co. Ltd. 1981 BLD (AD) 61, M/s. Eastern Mercantile Bank Ltd. v. Mohammad Shamsuddin, 21 DLR (SC) 365.
 
Lawyers Involved:
Asrarul Hossain, Senior Advocate,(Syed Amirul Islam, Advocate, with him) instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Appellants.
Mahmudul Islam, Advocate, instructed by Kazi Ebadul Huq, Advocate-on-Record-For the Respondent.
 
Civil Appeal No. 97 of 1985.
(From the Judgment and order dated 7.7.85 passed by the High Court Division, Camilla Bench, in Civil Revision No. 12 of 1984.)
 
JUDGMENT
Shahabuddin Ahmed J.
 
This is the defendant's appeal by special leave. Appellant is the Senior Manager of M/s. Dosta Textile Mills Ltd. an Enterprise of me Bangladesh Textile Mills Corporation (hereinafter referred to as "Corporation"). He is challenging the High Court Division's order dated 7 July, 1985 in Civil Revision No. 73 of 1984 refusing to interfere with a decree of the appellate court. By that decree the appellate court on reversing the decision of the trial court declared invalid the appellant's order dismissing the respondent from service under the Employment of Labour (Standing Orders) Act, 1965, (hereinafter referred to as the "Act").
 
2. Allegation against the plaintiff-respondent was that while he was in charge of the Mills' Store, he, along with the Store Clerk, Yar Ahmed misappropriated 138 Ring Travellers from the Store. A criminal proceeding was instituted on this allegation against him and the co-accused Yar Ahmed. Yar Ahmed was convicted but he was discharged on Final Report submitted by the Police, but he was proceeded against departmentally under section 18 of the Act and was asked to show cause why he should not be dismissed from service. He did not show any cause whereupon he was dismissed from service by the 'Employer' by an order dated 22 October 1977 under section 17 of the "Act"
 
3. Plaintiff filed T.S. No. 115 of 1978 in the 2nd Court of Munsif, Feni, challenging the order dismissing him from service under the Act. In his plaint he claimed that he was a member of the Management of the Mills designated as "Store-in-Charge," and contended that he was not a worker. He further claimed that he was an employee of the Bangladesh Textile Mills Corporation since, the Dosta Textile Mills was a nationalised enterprise placed under the management and control of this Corporation and as such his service was governed by the Corporation's Employees Service Rules. The order of his dismissal as a worker under the Labour law was illegal and void. In his plaint he sought for a declaration that the order of dismissal was invalid.
 
4. The suit was contested by the defendant, Senior Manager of the Mills, by filing a written statement. His case was that the suit was not maintainable as the plaintiff was a worker and had remedy by an application before the Labour Court under section 25 of the Act;" that the plaintiff was never an employee of the Bangladesh Textile Mills Corporation; that in spite of nationalisation of the Mills it retained its separate entity as an industrial unit under the general control and supervision of the Corporation and further that the suit was hit by section 42 of the Specific Relief Act in that no consequential relief was sought for. The trial Court, however, dismissed the suit on merit and, finding that the plaintiff deliberately avoided the departmental proceeding and did not avail of the opportunity to defend himself, dismissed the suit by judgment and decree dated 22-4-81. Plaintiff filed an appeal, Title Appeal No. 153 of 1981, which was allowed by the Subordinate Judge, Feni; the suit was decreed on a finding that the plaintiff-respondent was not a "worker" but was an employee of the Corporation and was governed by the Corporation's Service rules. The defendant came with a revisional application before the High Court Division but it was dismissed and the appellate court's order was maintained on confirmation of the finding of the appellate court that the respondent was an employee of the Corporation and was governed by its Rules; but the learned Single Judge reserved his opinion as to whether the respondent was a "worker".
 
5. Leave was granted by us to consider the question whether the respondent is a worker under the relevant Labour law or whether he is an employee of the Corporation, governed by its Service Rules, and whether his suit was hit by section 42 of the Specific Relief Act in the absence of any prayer for consequential relief.
 
6. We have heard lengthy arguments of the, learned Advocates for both the parties- Mr. Asraruful Hossain for the appellants and Mr. Mahmudul Islam for the respondent. Mr. Asrarul Hossain has contended that the order of the respondent’s dismissal itself shows that he was treated as a worker of the Mills and was dismissed by the "Employer" under section 17 of the Act and as such his only remedy lay in a "grievance petition" before the Labour Court under section 25 of the Act. Mr. Mahmudul Islam, on the other hand, has contended that the respondent was not a worker but was an 'employee', meaning a member of the Managerial staff. There is no dispute that if he is not a worker, then the order of dismissal .is illegal, for the provisions of the Act are not applicable to a person who is not a worker within the definition of 'worker' given in the Act. The onus to prove that he is not a worker lies upon him, firstly, because he is the plaintiff of the suit, and secondly, because he has been dismissed as a worker by his Employer under section 17 of the Act. In his plaint he did not give any particulars of the nature of his work which alone can bring him out of the' definition of 'worker' given in section 2(v) of the Act. He was Store-in-Charge of the Mills and as such, he claimed that he was not a worker but belonged to the Managerial staff. Worker has been defined as follows:
 
"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,
 
whether the terms of employment be expressed or implied, but does not include any such person-
 
(i) who is employed mainly in a managerial or administrative capacity; or
(ii) who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to the office or by reason of power vested in him, functions mainly of managerial or administrative nature."
 
7. Respondent claimed that he got supervisory power, but there is nothing on record to support his claim. There are only two persons in the Store section of the Mills, one is the Store-clerk Yar Ahmed and the other is the Store-in-charge who is the respondent himself. In the judgment of the courts below the respondent has been referred to, in several places, as the Store Keeper. 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 the extent of his authority, which determines whether he is a worker or employer. Even if it is taken that he has supervisory function, still mere supervisory capacity will not bring him into the category of "employer". Sub-clause (ii) of clause (v) of section 2 of the Act shows that a person, who being employed in a supervisory capacity,"exercises function mainly managerial or administrative in nature" will fall into the category of employer. Respondent does not exercise any functions managerial or administrative in nature. He got no power to control or to supervise the work of any other person. Nature of his work does not bring him within the category of 'employer' which has been defined in clause (8) of section 2 as a person who is "concerned with the management and responsible to the owner for control of the industrial establishment". It is, therefore, clear that the respondent is not an ‘employer' but is a worker under the Act. It may be mentioned that the expressions, Managerial, Manager, are included in the definition of "employer". The trial court did not go deep into the matter to determine whether the plaintiff was a worker, but the appellate court came to a clear finding that the plaintiff was not a worker. This finding was challenged in revision before the High Court Division. The learned Single Judge left this all-important question undecided and observed that "assuming that the plaintiff is a worker, the question that remains to be considered in the instant case is whether the plaintiff being an employee of Bangladesh Textile Mills Corporation can be proceeded against under the provisions of the Employment of Labour (Standing Orders) Act, instead of under the B.T.M.C. Service Rules". This assumption is itself wrong, for the very moment it is found that the plaintiff is a worker; he is non-­suited, because his suit filed under the Civil Procedure Code is not maintainable, specific remedy of his grievance lying in a separate forum the Labour Court, established under the Industrial Relations Ordinance, 1969, as amended upto date.
 
8. Mr. Mahmudul Islam does not dispute that if the respondent is a worker, his remedy lies only in an application before the Labour Court. Mr. Asrarul Hossain has in this connection referred to a decision of the High Court Division in the case of Jogesh Chandra Datta v. Government of Bangladesh, 30 DLR 219. There the question of implied ouster of the civil court's jurisdiction by a special law namely, the Customs Act, was considered. It was held there that "where a right is created by a statute which also prescribes the manner in which that right may be enforced, the party complaining of any infringement of such right can only seek such remedy as is provided by that statute". The forum of Labour Court' has been created by special statutes, as distinguished from a general law, the Civil Procedure Code; as such provisions of the special statutes shall prevail over those of the general law. Respondent being a worker and dismissed from service as such under the labour law, his suit in the civil court against the order of dismissal is not maintainable.
 
9. Mr. Asrarul Hossain, as appears, is more worried by the High Court Division's decision that the respondent is an employee of the Corporation than by its decree that the respondent's dismissal is a nullity. Obviously so, for if a person who is not an employee of the Corporation but is foisted upon it by a court's decision, then serious consequences will follow. It is the serious contention of the appellant that the respondent is not an employee of the Corporation but is a worker of the Dosta Textile Mills which is an industrial unit under the Corporation having its separate entity and maintaining its corporate character, as distinguished from the Corporation, which is simply a Co­ordinating Organisation for exercising general supervision and1 control over the Unit without any merger therewith. Both the appellate court and the learned Single Judge proceeded under the erroneous assumption that since the Dosta Textile Mills was, after nationalisation, placed under the Corporation all employees of the Mills are necessarily employees of the Corporation. The question whether an industrial unit or enterprise, placed under a Sector Corporation, has got a separate entity and maintains its corporate character, has been decided by this Court in two previous cases New Dhaka Industries Ltd. v. Quamrul Huda and others, 31 DLR (AD) 234 and Motaher Hossain Khan v. Bangladesh Jute Mills Corporation, 36 DLR(AD) 282. It has been held in those two decisions that placement of an enterprise or company under the control and supervision of a Corporation in pursuance of the provisions of the President's Order No. 27 of 1972 does not necessarily destroy its corporate character but it retains this character as a separate entity, and hence, the previous relationship between the company/enterprise and its employees continues as before. In the last mentioned case, three Jute Mills, namely, United Jute Mills Ltd., Meghna Jute Mills Ltd. and Chandpur Jute Mills Ltd., were placed under the Bangladesh Jute Mills Corporation for administrative purposes, and it was held that each of the three Jute Mills retained its separate entity and that an employee working in United Jute Mills remained an employee of that Mills even after the said Jute Mill was placed under the Bangladesh Jute Mills Corporation.
 
10. Mr. Mahmudul Islam has, however, referred to an observation of this Court in the case of Mosharraf Hossain Chowdhury v. General Manger, Titas Gas Transmission & Distribution Co. Ltd. 1981 BLD (AD) 61, to the effect that "the law of master and servant will not apply to the employees of a nationalised company which has lost its corporate character; such employees will be treated as employees of the Corporation". This observation is governed by the expression 'if in the sentence. It clearly shows that' if' on nationalisa­tion, the company lost its separate entity, then it will be merged with the Corporation; but whether it lost it is to be determined by examining the provisions of P.O. 27 of 1972, along with Memorandum and Articles of Association and the actual working of the company. This observation, therefore, does not come in aid of the respondent of the instant case in any way. The respondent was appointed by the Dosta Textile Mills as an employee in 1961 and he continued in the service of the Mills even after its nationalisation and placement under the Corporation. He has been drawing his salary from the Mills all-through and not from the Corporation and finally he has been dismissed by the Mills Authorities and not by the Corporation. In his suit he claimed to be an employee of the Corporation but did not make the Corporation a party to the suit. Again, Service Rules of the Corporation have excluded from their ambit all 'workers', obviously because when an employee is found to be a worker, whether he belongs to the Corporation or to any enterprise of the Corporation, he will be governed by the Labour law, (such as the Act). These Rules came into force in 1981, whereas the respondent was dismissed in 1977, when there were no such Rules; at that time all officers and employees of the Corporation were governed by the ordinary law of master and servant. Therefore, the finding of the High Court Division that the respondent was an employee of the Corporation or that he was governed by "B.T.M.C. Service Rules" is palpably erroneous.
 
11. As to whether the suit is hit by section 42 of the Specific Relief Act, it is found, the relief claimed in the plaint is for a simple declaration that the order of dismissal is illegal; there is no prayer for any consequential relief, such as, he is still in service or a direction to allow him to resume his duty, etc. Mr. Asrarul Hossain has further contended that the suit is not maintainable as the respondent got no "legal character" which can be declared under Section 42. In support of this contention he has referred to a decision of the Pakistan Supreme Court in the case of M/s. Eastern Mercantile Bank Ltd. v. Mohammad Shamsuddin, 21 DLR (SC) 365. In that case the plaintiff was an employee of a private Bank and being removed from service he sought a declaration under section 42 that the removal was illegal, and it was held that section 42 of the Specific Relief Act was not applicable to his suit as he was governed by the law of master and servant. However, in view of our findings above that the respondent is a worker and that he is not an employee of the Corporation who’s Service Rules resume his duly etc. Mr. Asrarul Hossain has further contended that the suit is not maintainable as the respondent-got no "legal character" which can be declared under Section 42. In support of this contention he has referred to a decision of the Pakistan Supreme Court in the case of M/s. Eastern Mercantile Bank Ltd. v. Mohammad Shamsuddin, 21 DLR (SC), 365. In that case the plaintiff was an employee of a private Bank and being removed from service he sought a declaration under section 42 that the removal was illegal, and it was held that section 42 of the Specific Relief Act was not applicable to his suit as he was governed by the law of master and servant. However, in view of our findings above that the respondent is a worker and that he is not an employee of the Corporation whose Service Rules are not applicable to his case, the suit is not maintainable. We, therefore, need not decide this question whether the suit is also his by section 42.
 
12. In the result, the appeal is allowed; the impugned judgments of the High Court Division and the lower appellate court arc set aside and that of the trial court is restored, though on different grounds. No order as to costs.
 
Ed.