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Abdul Malek (Md.) Vs. Government of the People's Republic of Bangladesh and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 9524 of 2010, 6159, 6225, 6230, 2959, 4799, 2574, 1265, 9325, 3913, 8129, 8282, 7753, 7754, 1907 of 2011, 1456 of 2012, 5538, 5539 of 2010 and 3221 of 2011

Decided On: 06.06.2013

Appellants: Abdul Malek (Md.) Vs. Respondent: Government of the People’s Republic of Bangladesh and Ors.

Hon’ble Judges/Coram: Mirza Hussain Haider and Muhammad Khurshid Alam Sarkar, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Mahbubul Haque and Md. Abdul Hye Bhuiyan, Advocates

For Respondents/Defendant: Mohd. Ashrafuddin Bhuiyan, Advocate

JUDGMENT

Muhammad Khurshid Alam Sarkar, J.

  1. Since in all these Writ Petitions involve common questions of law and fact, they are taken up together for hearing and disposed of by this single judgment. In Writ Petition No. 9524 of 2010, the name of the petitioner is Md. Abdul Malek and while the petitioner was working as Office Assistant-cum Computer Operator in Petro-Bangla, by annexure-C to the writ petition dated 8-2-2010, he was placed on retirement with effect from 31-12-2010 on the completion of 57 year of his age.
  2. In Writ Petition No. 6159 of 2011, the name of the petitioner is Md. Momtaz Ali and while the petitioner was working as a Driver in WASA, by annexure-A to the writ petition dated 31-5-2011, he was placed on retirement with effect from 19-5-2011 on the completion of 57 years of his age.
  3. In Writ Petition No. 6225 of 2011, the name of the petitioner is Md. Shamsul Huq and while the petitioner was working as Swear Cleaner in WASA, by annexure-A to the writ petition dated 30-5-2011, the petitioner was placed on retirement with effect from 28-4-2011 on the completion of 57 years of his age.
  4. In Writ Petition No. 6230 of 2011, the name of the petitioner is Md. Sekander Mia and while the petitioner was working as Swear Inspector in WASA, by annexure-A to the writ petition dated 28-3-2011, the petitioner was placed on retirement with effect from 24-2-2011 on the completion of 57 years of his age.
  5. In Writ Petition No. 2959 of 2011, the name of the petitioner is Md. Seraj Mia and while the petitioner was working as a Record Keeper in National Tubes Limited, by annexure-A to the writ petition dated 15-1-2011, he was placed on retirement with effect from 30-4-2011 on the completion of 57 years of his age.
  6. In Writ Petition No. 4799 of 2011, the name of the petitioner is Joynal Abedin and while the petitioner was working as Office Assistant in Progoti Industries Limited, an Enterprise of BSEC, by annexure-A to the writ petition dated 28-3-2011, he was placed on retirement with effect from 24-6-2011 on the completion of 57 years of his age.
  7. In Writ Petition No. 2574 of 2011, the name of the petitioner is Md. Abul Kashem and while the petitioner was working as an Office Assistant in Bangladesh Steel and Engineering Corporation, by annexure-A to the writ petition dated 22-3-2010, the petitioner was placed on retirement with effect from 31-5-2010 on the completion of 57 years of his age.
  8. In Writ Petition No. 1265 of 2011, the name of the petitioner is Md. Shamsuddin Chowdhury and while the petitioner was working as Gestatener Operator in Bangladesh Steel and Engineering Corporation, by annexure-B to the writ petition dated 5-1-2011, the petitioner was placed on retirement with effect from 10-3-2011 on the completion of 57 years of his age.
  9. In Writ Petition No. 9325 of 2011, the name of the petitioner is Md. Jahangir Bhuiyan and while the petitioner was working as Pharmacist in Chittagong Urea Fertilizer Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 8-6-2011, he was placed on retirement with effect from 26-10-2011 on the completion of 57 years of his age.
  10. In Writ Petition No. 3913 of 2011, the name of the petitioner is Subol Mali and while the petitioner was working as Sweeper in Karnofuly Paper Mills Limited, an enterprise of BCIC by annexure-A to the writ petition dated 13-11-2010, the petitioner was placed on retirement with effect from 1-1-2011 on the completion of 57 years of his age.
  11. In Writ Petition No. 8129 of 2011, the name of the petitioner is Md. Asgar Ali and while the petitioner was working as Security Guard in Ashuganj Fertilizer and Chemical Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 26-12-2010, the petitioner was placed on retirement with effect from 15-2-2011 on the completion of 57 years of his age.
  12. In Writ Petition No. 8282 of 2011, the name of the petitioner is Md. Abdur Rahman and while the petitioner was working as Fire Squardun Leader in Ashuganj Fertilizer and Chemical Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 9-1-2011, the petitioner was placed on retirement with effect from 2-3-2011 on the completion of 57 years of his age.
  13. In Writ Petition No. 7753 of 2011, the name of the petitioner is Md. Harun-or-Rashid and while the petitioner was working as Office Assistant in Ashugonj Fertilizer and Chemical Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 27-10-2010, the petitioner was placed on retirement with effect from 30-12-2010 on the completion of 57 years of his age.
  14. In Writ Petition No. 7754 of 2011, the name of the petitioner is Snehamaya Barua and while the petitioner was working as Laboratory Technician in Ashugonj Fertilizer and Chemical Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 3-8-2010, the petitioner was placed on retirement with effect from 10-10-2010 on the completion of 57 years of his age.
  15. In Writ Petition No. 1907 of 2011, the name of the petitioner is Md. Abdul Alim and while the petitioner was working as LDA-cum-typist in Jamuna Fertilizer Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 27-9-2010, the petitioner was placed on retirement with effect from 31-12-2010 on the completion of 57 years of his age.
  16. In Writ Petition No. 1456 of 2012, the name of the petitioner is Md. Joynal Abdin and while the petitioner was working as Record Sorter in Jamuna Fertilizer Company Limited, an Enterprise of BCIC, by annexure-A to the writ petition dated 1-1-2011, the petitioner was placed on retirement with effect from 14-3-2011 on the completion of 57 years of his age.
  17. In Writ Petition No. 5538 of 2010, the name of the petitioner is Md. Motiul Islam Mozumder and while the petitioner was working as Time Keeper in Latif Bawany Jute Mills Limited, an enterprise of BJMC by annexure-A to the writ petition dated 18-5-2010, the petitioner was placed on retirement with effect from 31-7-2010 on the completion of 57 years of his age.
  18. In Writ Petition No. 5539 of 2010, the name of the petitioner is Md. Selim Reza and while the petitioner was working as Senior Clerk (Time Keeper) in Latif Bawany Jute Mills Limited, an enterprise of BJMC, by annexure-A to the writ petition dated 18-5-2010, the petitioner was placed on retirement with effect from 4-7-2010 on the completion of 57 years of his age.
  19. In Writ Petition No. 3221 of 2011, the name of the petitioner is Md. Muzibur Rahman and while the petitioner was working as LDA in Latif Bawany Jute Mills Limited, an enterprise of BJMC, by annexure-A to the writ petition dated 5-4-2011, the petitioner was placed on retirement with effect from 29-5-2011 on the completion of 57 years of his age.
  20. The common case of all the petitioners are that they do not perform any duty of supervisory or administrative nature and, as such, they should be treated as “worker” under the Bangladesh labour act, 2006, or Public Corporation (Management Coordination) Ordinance, 1986 and, therefore, they are entitled to be in their respective employments till completion of 60 years of their respective ages as provided in the aforesaid laws.
  21. In all the cases, the respondents contested the Rules by filing affidavits-in-opposition. It is their common contention that the petitioners are the workers of public Enterprise or Corporation and their services are regulated by the Service Rules of their respective corporation/enterprise and, accordingly, they were sent on retirement as per the provisions of relevant Service Rules. The contentions of the petitioners as to their non-engagement in the supervisory or administrative functions have not been denied by the respondents, neither by making any categorical statement as to the nature of the petitioners’ jobs in the affidavits-in-opposition nor by producing, any document containing their job descriptions.
  22. The learned advocates, appearing on behalf of their respective petitioners in all these 19 writ petitions at the very outset of making their submissions, place before the Court Section 2(65) of Bangladesh labour act, 2006 and Section 2(e) of Public Corporation (management and Co-ordination) Ordinance, 1986 and submit that all the petitioners do clearly fall within the definition of the ‘worker’ as provided in both the laws. Then, they place the ‘Proviso’ of the Section 3(1) of the labour act, 2006 before us and submit that no provision of any Law/Rule which is less favourable than the provisions provided in Bangladesh labour act, 2006 will apply in case of a worker and, as such, if the Service Rules of the Corporation or Enterprise where the petitioners are working contains any less favourable service condition, in that event, instead of application of the said service Rules, the provisions of labour act, 2006 shall be applicable. Moreover, if any other act or Rule incorporates better and more favourable facilities for the workers than that of the labour act, 2006, in that case the said Act/Rule with better provisions will apply to such worker by superseding the provisions of the Bangladesh labour act, 2006. They submit that Section 336 of the Bangladesh labour act, 2006 makes it clear that even after the enactment of the labour act, 2006 workers are entitled to continue to enjoy the better provisions of any other law of the land, which is conducive and more beneficial to them.
  23. They then drew our attention to the schedule of the Public Corporation (Management Co-Ordination) Ordinance, 1986 and submit that Bangladesh Chemical Industries Corporation is placed at serial No. 1, Bangladesh Steel Engineering Corporation is placed at serial No. 2, Bangladesh Jute Mills Corporation is placed at serial No, 8, Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) is placed at serial No. 22 and WASA is placed at serial No. 27 of the Schedule of the said Ordinance and all the petitioners are serving in the aforesaid scheduled corporations directly or under any of the enterprise/unit of the aforesaid scheduled corporations and, as such, services of all of the writ petitioners are governed either by the Public Corporation (Management Co-ordination Ordinance) Ordinance, 1986 or by the labour act, 2006, whichever is more advantageous and suitable for the workers.
  24. The learned advocates for the petitioners took us through Sections 2(e) and 14A of the Public Corporation (Management Co-Ordination) Ordinance, 1986 as well as Sections 2(1), 2(65), 3(1), 28, 336 and some other relevant Sections of the Bangladesh labour act, 2006, 2 (two) Appellate Division’s Cases, namely (i) Bangladesh Gas Fields Co. Ltd. vs. Md. Faridnddin, reported in 5 ADC 324 and (ii) MA Hai & others Trading Corporation of Bangladesh reported in 40 DLR (AD) 207 (iii) M/s. Adamjee Jute Mills Ltd. vs. The Chairman, 3rd labour Court reported in 42 DLR 275 and some other unreported judgments passed by the High Court Division in Writ Petition No. 8275 of 2008, along with 12 other Writ Petitions, Writ Petition No. 7661 of 2008 along with 34 other Writ Petitions and also the Writ Petition No. 2381 of 2009 and they submit that the actions of respondents in issuing the impugned office orders by sending the petitioners on retirement before completing the relevant retiring age of 60 years are in derogations of the above-mentioned laws and decisions and, thus, the same are vitiated by illegality.
  25. They, with regard to the issue of the maintainability, took us through Section 33, 213, 336 and some other relevant Sections of the Bangladesh labour act, 2006 and submit that the petitioners being placed on “retirement” are not eligible to approach the labour Court. Their further submission, which they regard to be considered by this Court with great care, that the subject matter of this writ petition being an unique one, which is about an adjudication as to whether the petitioners are entitled to continue in their service for another three years and if adjudication of this kind of case start through the labour Court and end up in the Supreme Court, it may take more than three years time. Therefore, time being an issue of pivotal importance in these cases, approaching the labour Court is not an efficacious remedy inasmuch as if the petitioners are to succeed through resorting to the labour Court to Supreme Court, the said process may take more than three years and, in that event, the government will have to pay three years’ salaries and other benefits without receiving any service from them, which would be an awful wastage of public money.
  26. The learned advocates also submit that the orders of retirement in respect of all these petitioners are discriminatory as the respondents earlier sent other workers on retirement after completion of 60 years of age but the petitioners were sent on retirement after completion of 57 years of age, which is a sheer violation of Article 27 of the Constitution. Thus, the writ petitions are maintainable only on this ground alone inasmuch as in order for enforcement of fundamental rights, this Court is the only forum under Article 102(1) of the Constitution. By making the above submissions, the learned advocates for the petitioners pray for making all the Rules absolute.
  27. Mr. Tufailur Rahman with Mr. Gazi Md. Mohsin, Mr. Md. Ekramul Haque and Mr. Ashrafuddin Bhuiyan, all the learned advocates appearing for the respondents, submit in one voice that since all the petitioners are the workers of Public Corporations or Enterprises, their services are governed by the service Rules of their respective Corporations or Enterprises and, as per their respective service Rules, the petitioners are required to be sent on retirement after the completion of their 57 years of age. They submit that as long as the service Rules of the public enterprise/corporation are in operation and has not been declared repugnant to the Bangladesh labour act, 2006 or Public Corporation (Management Coordination) Ordinance, 1986, the Rules shall be applicable to determine the service age of the government owned enterprise/corporation. They further submit that since the petitioners are the workers of government owned a corporation or enterprise, they are public servants and, as such, they should approach Administrative Tribunal.
  28. Mrs. Quamrun Nesa, the learned advocate for the respondents, adds an additional point in her submission that only the workers of the “enterprise” are entitled to be in their services up to completion of 60 years of age as provided in Section 14A of the Public Corporation (Management Co-ordination) Ordinance, 1986 and, as such, the others who are working in Corporation have been excluded from the benefit of being employed till the completion of 60 years of age.
  29. Mr. Mollah Kismat Habib, the learned advocate for the respondents, makes a further argument that Public Corporation (Management Co-ordination) Ordinance, 1986 is a special law and it is applicable only for the workers who work in the government owned Enterprises and Corporations and, thus, if a worker of an enterprise disqualifies to be a worker within the definition of Section 14A of the Ordinance, he cannot claim to be a worker under the labour law.
  30. They submit that if the petitioners claim themselves to be the workers under labour act, 2006, they should approach the labour Court created under the Bangladesh labour act, 2006 inasmuch as the labour Court has been vested with ample powers to deal with the issue raised herein under the provisions of Bangladesh labour act, 2006. They, therefore, submit that it is not true that the petitioners have no efficacious remedy for which the petitioners are to seek relief under Article 102 of the Constitution. Since the petitioners are workers within the meaning of section 2(65) of the Bangladesh labour act, 2006 and since the matters relate to “retirement” of the petitioners as defined in Section 2(1) of the Bangladesh labour act, 2006, which falls within the purview of section 213 of the said act, therefore, the forum available to the petitioners according to the labour act, 2006 is the labour Court wherein they could get adjudication of their matters and, then, if they are dissatisfied with the order/decision/award of the labour Court, they could invoke section 217 of the said act to prefer appeals and, thus, only after having exhausted all the forums, as prescribed in the Bangladesh labour act, 2006, the petitioners could have approached this Constitutional Court. For not having done so, the writ petitions are not maintainable.
  31. We have heard the submissions of the learned advocates, perused the writ petitions along with all the papers appended thereto, the affidavits-in-opposition and also relevant laws and legal precedents placed before us, which have been considered by us very carefully.
  32. The moot question before us is whether the service age of these petitioners should be 60 years as provided in Section 28 of the labour Law, 2006 as well as Section 14A of the Public Corporation (Management Co-Ordination) Ordinance, 1986 or their services are regulated by the Service Rules or Regulations of the concerned corporation or enterprise
  33. Let us first look at the provisions of these two Acts.
  34. Section 2(1) of the Bangladesh labour act, 2006 defines the “retirement”, which runs as follows:

“২(১) “অবসর” অর্থ এই আইনের ২৮ ধারা অনুযায়ী কোন শ্রমিকের নির্দিষ্ট বয়সে উপনীত হওয়ার কারণে স্বাভাবিকভাবে চাকুরীর অবসান। তবে কোন প্রতিষ্ঠানে ২৫ বছর চাকুরী পূর্ণ হওয়ার প্রেক্ষিতে শ্রমিকের স্বেচ্ছায় অবসর গ্রহণকেও অবসর বলিয়া গণ্য হইবে।

  1. Section 2(65) of the Bangladesh labour act, 2006 provides us the definition of a worker, which runs as follows:

“২(৬৫) “শ্রমিক” অর্থ শিক্ষাধীনসহ কোন ব্যক্তি, তার চাকুরীর শর্তাবলী প্রকাশ বা উহ্য যেভাবেই থাকুক না কেন, যিনি কোন প্রতিষ্ঠানে বা শিল্পে সরাসরিভাবে বা কোন ঠিকাদারের মাধ্যমে মজুরী বা অর্থের বিনিময়ে কোন দক্ষ, অদক্ষ, কারিগরী, ব্যবসা উন্নয়নমূলক অথবা কেরাণীগিরির কাজ করার জন্য নিযুক্ত হন, কিন্তু প্রধানতঃ প্রশাসনিক বা ব্যবস্থাপনামূলক কাজে দায়িত্বপ্রাপ্ত কোন ব্যক্তি এর অন্তর্ভুক্ত হবেন না।

  1. Section 28 (After the amendment on 13-5-2010) of the Bangladesh labour act, 2006 makes provision about the age of retirement of a worker, which runs as follows:

“২৮ শ্রমিকের অবসর গ্রহণ-(১) এ অধ্যায়ের অন্যত্র যা কিছুই উল্লেখ থাকুক না কেন, কোন প্রতিষ্ঠানের নিয়োজিত কোন শ্রমিকের বয়স ৬০ (ষাট) বৎসর পূর্ণ হলে তিনি চাকুরী হতে স্বাভাবিক অবসর গ্রহণ করবেন।

  1. “Proviso” of the Section 3(1) of the Bangladesh labour act, 2006 runs as follows:

“৩। চাকুরীর শর্তাবলী-(১) প্রত্যেক প্রতিষ্ঠানে শ্রমিকগণের নিয়োগ ও তৎসংক্রান্ত আনুষঙ্গিক অন্যান্য বিষয়াদি এই অধ্যায়ের বিধান অনুযায়ী পরিচালিত হবেঃ

তবে শর্ত থাকে যে, কোন প্রতিষ্ঠানের শ্রমিক নিয়োগ সংক্রান্ত নিজস্ব চাকুরীবিধি থাকতে পারবে, কিন্তু এই প্রকার কোন বিধি কোন শ্রমিকের জন্য এই অধ্যায়ের কোন বিধান হতে কম অনুকূলে হতে পারবেনা।

  1. Section 336 of the Bangladesh labour act, 2006 runs as follows:

“৩৩৬। কতিপয় ক্ষেত্রে চাকুরীর বর্তমান শর্তাবলী সংরক্ষণ।-এই আইন অথবা কোন বিধি, প্রবিধান বা স্কীমের কোন কিছুই এই আইনধর্তন হওয়ার সময় উহার দ্বারা রহিত কোন আইনের অধীন, অর্থবা এবা কোন রোয়েদাদ, চুক্তি, নিষ্পত্তি বা প্রচলিত প্রথার অধীন কোন শ্রমিকের ভোগকৃত অধিকার বা সুযোগ-সুবিধা, তিনি যতদিন, উক্ত প্রবর্তনের তারিখে যে মালিকের অধীন কর্মরত ছিলেন, সে মালিকের অধীন চাকুরীরত থাকবেন ততদিন পর্যন্ত ব্যাহত বা ক্ষতিগ্রন্থ করবে না, যদি তার উক্ত অধিকার এবং সুযোগ-সুবিধা এই আইন, বিধি, প্রবিধান বা স্কীমের অধীন প্রদত্ত অধিকার ও সুযোগ-সুবিধা হতে অধিকতর অনুকূল হয়।

  1. On the other hand, Section 2(e) of the Public Corporation (Management Co-Ordination) Ordinance, 1986 gives the following definition of a “worker”:

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.

  1. Section 14A (which has been amended by act No. XVII of 1994) of the said Public Corporation (Management Co-Ordination) Ordinance, 1986 provides the retirement age of a worker which runs as follows:

“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.

  1. 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.
  2. It appears that all the writ petitioners are workers of the scheduled enterprise/company/corporation as shown in Item Nos. 1, 2, 8, 22 and 27 of the Schedule of the Public Corporation (Management Co-Ordination) Ordinance, 1986 in view of the fact that they do not perform any duty of administrative or supervisory nature. In this regard, it is to be noted that though in some of the affidavits-in-opposition it is stated that they are not workers but no paper as to their job descriptions have been produced before us and, in fact, the respondents did not endeavour to make out their cases in that line. The only strong line of argument that has been advanced by all the learned advocates for the respondents are that most of the petitioners are working in the government owned enterprise and, as such, according to the service Rules of the enterprises, they are to be retired at the completion of 57 years of their age. The other argument, though placed feebly, is that the petitioners who are working directly under a corporation and not in an enterprise of a corporation, are not workers as Section 1(4)(Ka) & (Zha) of the labour act, 2006, excludes the persons to be workers who work in any government Office or Industry. The logic behind the above argument is that the persons who are working in corporations are government servants and, thereby, not to be treated as “worker”, therefore, they have to approach the Administrative Tribunal if the concerned corporation is placed in the Schedule of Administrative Tribunal act, and, if it is not included in the said schedule, then they should approach civil Courts.
  3. We find in a series of unreported decisions of the High Court Division held in Writ Petition No. 8275 of 2008 along with other 12 Writ Petitions, Writ Petition No. 7661 of 2008 along with other 34 Writ Petitions and Writ Petition No. 2381 of 2009 that the workers, who are working in any public enterprise/corporation, are regulated by the provisions of section 14A of the Public Corporation (Management Co-Ordination) Ordinance, 1986 and, thus, entitled to be in service till completion a of 60 years of age. This view has also been supported by our Appellate Division in the case of Bangladesh Gas Fields Co. Ltd. vs. Md. Fariduddin reported in 5 ADC 324. We further find that Service Rules of government owned enterprise or corporation as to retiring their workers after completion of 57 years of age is not conducive for the workers and, as such, the provisions of the Proviso of Section 3(1) as well as section 336 of labour act, 2006 will operate here in these cases to make the petitioners entitled to be in their respective service till they complete 60 years of their respective age. With regard to the submissions of the respondents that without declaring the Service Rules of the Enterprise/Corporation ultra vires to the act of Parliament, there is no scope to bypass the said Service Rules in that the same remains intact and in operation, we find that though the submission apparently sounds sound, however, the petitioners’ remedy will not be resisted by the presence of the said service Rules inasmuch as although it is within the jurisdiction of this Court to knock down a Rule inconsistent with any act but it is always a better practice for the Courts to grant the aspired appropriate relief to the petitioners without knocking down the law as has been held in the case of BADC vs. Md. Shamsul Haque Mazumder reported in 60 DLR (AD) 152 “when a case can be decided without striking down the law but giving relief to the petitioners that course is always better than striking down the law”. With regard to the submissions advanced by Mrs. Kamrunnessa, the learned advocate for the respondents, that only the workers of Public Enterprise are entitled to be in their employments, not the workers of the Corporation, we find it difficult to differentiate the entitlements of the workers of the Enterprise with those of the Corporation in the light of the provisions of Section 14 of the Public Corporation (Management Coordination) Ordinance, 1986, which runs as follows:

Section: 14. Notwithstanding anything contained in any terms and conditions of service or in any contract or in any rules, regulations or bye-laws relating to any terms and conditions of service, a public corporation may, if it considers expedient in the interest of better administration of the affairs and business of itself or its enterprises, transfer the officers and other employees, including workers, of one enterprise to another enterprise or to itself.

  1. Before we arrive at a conclusion of the judgment, it is pertinent to deal with the issue of maintainability of these writ petitions as raised by the learned advocates for the respondents. This issue has also been discussed in a greater details in all the above mentioned unreported Cases and was held in favour of the petitioners on the ground that since the petitioners were “retired” from the service by the respondents, they are barred by the provisions of the labour act, 2006 to approach the labour Courts as section 33 of the said act provides forum to move the labour Court only on the ground of “dismissal”, “discharge” and “retrenchment” etc. but does not include the term “retirement”. In arriving at the aforesaid decisions by the different Division Benches of this Division, all their Lordships relied mostly on the dictum of the Case of M/s. Adamjee Jute Mills Ltd. vs. The Chairman, 3rd labour Court reported in 42 DLR 275 wherein it was held that “since retirement, right or wrong, is not covered under any of the provisions of the act as grievance; the workers so retired cannot invoke the jurisdiction of the labour Court”, We, with great respect, find it difficult to share the view taken by their Lordships in the aforesaid unreported decisions inasmuch as we find that the aforesaid case reported in 42 DLR 275 was delivered on 16-11-1989 and its dictum was capable of having force of law till enactment of the labour act, 2006, when the said act made provision for the “retired” workers to approach the labour Court. In Section 2(1) of the act the definition of “retirement” has been provided, which runs as follows

“২(১) “অবসর” অর্থ এই আইনের ২৮ ধারা অনুযায়ী কোন শ্রমিকের নির্দিষ্ট বয়সে উপনীত হওয়ার কারণে স্বাভাবিকভাসে চাকুরীর অবসান। তবে কোন প্রতিষ্ঠনে ২৫ বছর চাকুরী পূর্ণ হওয়ার প্রেক্ষিতে শ্রমিকের স্বেচ্ছায় অবসর গ্রহণকেও অবসর বলিয়া পণ্য হইবে”

Thus, after enactment of the labour act, 2006, from a concurrent reading of Section 2(1), Section 33 and Section 233 of the said act, none of us is left with any option but to be of the view that there is no bar for any “retired” worker to approach the labour Court to seek his aspired relief. So, we find before the enactment of the labour act, 2006, the “retired” workers being not accommodated in the Employment of labour (Standing Order) act, 1965, were rightly allowed to invoke Article 102 of the Constitution but since the legislature have made provisions for the “retired” worker to approach the labour Court by incorporating Section 2(1) in the labour act, 2006, we hold that no writ petition is maintainable on this ground. We, thus, are of the view that after the incorporation of Section 2(1) of the labour act, 2006, the judgments delivered by different benches of the High Court Division holding the writ petitions to be maintainable for the absence of the word “retirement” in Section 33 adopting the view taken in 42 DLR 275 are to be treated as per incuriam.

  1. However, we find that since there are ambiguities in the laws of our land as to the definition of the “worker” and also for the reason that the “retirement age” for the workers provided in the labour act, 2006 as well as Public Corporation (Management Co-ordination) Ordinance, 1986 being inconsistent with the service Rules/Regulations of the Public enterprises and Corporations and, more importantly, most of these petitioners being the workers within the purview of Section 2(e) of the Public Corporation (Management Co-Ordination) Ordinance, 1986 and the same Ordinance having not prescribed for any forum to address their grievance, we hold that the Constitutional Court is the proper forum to adjudicate upon such like applications as has been held by our Apex Court in the Case of MA Hai & others vs. Trading Corporation of Bangladesh reported in 40 DLR (AD) 207 and, as such, all the writ petitions are held to be maintainable on this ground.
  2. Now, let us examine the other submissions advanced by the respondents that the petitioners who are the direct staffs of the corporations are not “workers”, rather they are public servants and, as such, Administrative Tribunal is the proper forum for them. It appears that none of the petitioners perform any managerial or supervisory jobs and, secondly, even for the argument’s sake, if it is conceded that they are public servants but as the Administrative Tribunal act has not included the corporations of the petitioners in its Schedule, they are ineligible to make any application in the Tribunal. However, they might have approached the civil Court, but, again, since here in these cases interpretation of a number of Statutes and Rules are involved, therefore, Constitutional Court is the better forum for such like matters. Moreover, since the outcome of these cases would be as to whether to allow these petitioners to work for another three years from the date of completing 57 years of their age, which they have already intersected, we find that pragmatically it would be an unworthy order by this Court to ask the petitioners to seek redress from the labour Court given that usually most of our Tribunals do require an average time of more than a year to adjudicate upon a case and, thereafter, if the respondent opts to” exhaust its appellate forums and other forums, including approaching this Court, it may take more than three years and in that event the respondent/government would have to pay the petitioners’ salaries without being served by the petitioners for this three years, which would be wastage of public money. Had the cases involved any other usual issue of the labour act, 2006, we could have outright rejected the plea taken by the learned advocates for the petitioners that approaching directly this Court by passing the labour Court is the most efficacious alternative remedy. In our view, by entertaining such writ petitions the High Court Division would assume the functions of the labour Court upon gratuitously extending the jurisdiction of the High Court Division causing congestion in this Division which is already overwhelmingly overburdened with huge backlog of cases. Thus, we hold that although there is a statutory forum to seek remedy, given the exceptional scenario of these cases, writ is maintainable.
  3. Accordingly, after threadbare consideration of the facts and circumstances, laws and decisions of the High Court Division as well as of the Appellate Division discussed hereinabove, it appears that there is a good deal of force in the submissions of the learned advocates for the petitioners in all these writ petitions and, thus, we find merit in all these Rules. As such, the Rules issued in Writ Petition Nos. 9524 of 2010, 6159 of 2011, 6225 of 2011, 6230 of 2011, 2959 of 2011, 4799 of 2011, 2574 of 2011, 1265 of 2011, 9325 of 2011, 3913 of 2011, 8129 of 2011, 8282 of 2011, 7753 of 2011, 7754 of 2011, 1907 of 2011, 1456 of 2012, 5538 of 2010, 5539 of 2010 and 5539 of 2011 are made absolute. The respondents are directed to allow these petitioners to be in their respective employments till completion of the sixtieth year of their age. The petitioners who have already completed 60 years of their age during the pendency of these Rules, shall get all their back salaries and other service benefits as per law and the respondents are directed to make necessary arrangements for payments of their all service benefits treating 60 years of their respective age as their retirement age. However, there will be no order as to costs.