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Abdur Razzaque Mondal (Md.) Vs. Bangladesh Bana Shilpa Unnayan Corporation and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 5715 of 2001

Decided On: 03.08.2006

Appellants: Abdur Razzaque Mondal (Md.) Vs. Respondent: Bangladesh Bana Shilpa Unnayan Corporation and Ors.

Hon’ble Judges/Coram: Tariq ul Hakim and Afzal Hossain Ahmed, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Khalilur Rahman and Mahmudul Haque, Advocates

For Respondents/Defendant: M. Moniruzzaman Khan, Morshed Ahmed Khan and A.S.M. Abdur Razzaque, Advocates

JUDGMENT

Afzal Hossain Ahmed, J.

  1. This Rule Nisi was issued calling upon the respondents to show cause as to why the order No. 81 dated 7-3-2000 passed by the respondent No. 3 suspending the petitioner with effect from 14-3-1991 treating him under suspension from 6-9-89 (Annexure-R) and the order No. 88 dated 11-4-2000 passed by the respondent No. 3 drawing up charge sheet against the petitioner (Annexure-S) should not be declared to have been made without lawful authority and is of no legal effect.

  2. Subsequently, on an application of the petitioner, a modified Rule Nisi was issued which is as follows.

  3. Rule Nisi be issued calling upon the respondents to show cause as to why the order No. 81 dated 7-3-2000 passed by the respondent No. 3 suspending the petitioner with effect from 14-3-1991 treating him under suspension from 6-9-1989 (Annexure-R) and the Order No. 88 dated 11-4-2000 passed by the respondent No. 3 drawing up charge sheet against the petitioner (Annexure-S) and/or continuance of the said charge sheet after expiry of 180 working days from the date of the charge sheet should not be declared to have been made without any lawful authority and is of no legal effect and why the petitioner should not be treated to have been automatically exonerated from the charge thereafter and why the petitioner should not be reinstated in his post and position with all arrear salary, emoluments and benefits with effect from 6-9-1989.

  4. The case of the petitioner, briefly, may be put thus-

The petitioner was appointed as Supervisor by the respondent No. 4 vide Office Order No. 360 dated 3-12-1974. Thereafter, he was promoted to the post of Assistant Field Superintendent with effect from 1-4-1981 and while serving as such he was placed under suspension vide order dated 28-8-1989 and was charged with an allegation of misappropriation of Taka 9,00,000 vide charge sheet dated 2-10-1989 and ultimately he was dismissed from the service by order dated 1-4-1991 but with effect from 14-3-1991. Challenging that order of dismissal dated 1-4-1991 the petitioner filed a Writ Petition No. 3247 of 1996 in which the Rule was made absolute on technical grounds and the order of dismissal was declared illegal but in the Judgment there was an observation to the effect that since the writ petition is disposed of on technical grounds the respondents may draw up proceeding against the petitioner under the new BFIDC Employees Service Regulations 1989 if so advised. In the light of the said observation the respondents vide Order No. 81 dated 7-3-2000 again placed the petitioner under suspension giving effect of the same from 14-3-1991 against which the petitioner filed IRO Case No. 22 of 2000 in the First labour Court, Chittagong challenging the legality of the said order. The learned labour Court, however, in view of the judgment and order dated 10-8-1999 passed by the High Court Division in the aforesaid Writ Petition having considered dismissed the case on 17-9-2000. During pendency of the said IRO Case charge sheet was drawn up against the petitioner on 11-4-2000 by the respondent No. 3 on some false and frivolous allegations under the new BFIDC Employees Service Regulations, 1989 and the petitioner replied to the charges denying the allegations. In spite of having framed the charges against the petitioner vide order No. 88 dated 11-4-2000 the proceeding could not be disposed of within 180 working days from 11-4-2000 as required under Regulation 42(8) of the BFIDC Employees Service Regulations, 1989 and the proceedings having not been completed within such time the same ipso facto ceased to have any legal effect after the expiry of 180 working days from 11-4-2000 and the petitioner shall be treated to have been automatically exonerated from the charges brought against him and the continuance of the proceedings after expiry of 180 working days is illegal. Challenging the aforesaid suspension order dated 7-3-2000 and charge sheet vide order dated 11-4-2000 and its ultimate illegal effect, the petitioner filed the instant Writ Petition and obtained the present Rule.

  1. Respondent Nos. 1-4 contested the Rule by filing an Affidavit-in-opposition denying the material allegations made in the Writ Petition and contending, inter alia, that Regulation 42(8) of the BFIDC Employees Service Regulations 1989 has been repealed by the Board of Directors in its 205th meeting held on 27-11-1993 and it was fully communicated to all concerned by the BFIDC vide its letter No. 132 dated 15-2-1994 and, as such, the petitioner’s contention regarding Regulation 42(8) of the said Regulations, 1989 is irrelevant and not applicable anymore. It is further stated that in view of the judgment and order passed in Writ Petition No. 3247 of 1996 the respondents again suspended the petitioner vide Office Order No. 81 dated 7-3-2000 and framed a fresh charge sheet against the petitioner vide Memo dated 11-4-2000 under the BFIDC Employees Service Regulations, 1989. After his being suspended vide order dated 7-3-2000 the petitioner filed the IRO Case No. 22 of 2000 in the First labour Court, Chittagong for setting aside the said suspension order but, upon hearing, the said IRO Case was dismissed on merit on 17-9-2000 against which neither any appeal nor any step was taken and thus the said order dated 17-9-2000 passed by the labour Court and the suspension order of the petitioner dated 7-3-2000 stand as final. The instant writ petition having been filed by the petitioner challenging the self-same suspension order No. 81 dated 7-3-2000 is barred by the principle of constructive res judicata. Further, it is stated that the petitioner was in the service of the respondent No. 1 as an Assistant Field Superintendent and his job description/nature of work as per the organisational set-up of BFIDC was as follows:

“To work as staff officer to the project/enterprise head and to look after the following:

1 . Responsible for supervision of work in extraction centres/rubber garden in extraction of timber and plantation/processing of rubber. In furniture factory, responsible for procurement of raw materials and preparation of estimate of raw material requirement for future/joinery industry.

  1. It is further stated that petitioner is a worker within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965 and, as such, the instant Writ Petition is not maintainable since equally efficacious remedy is available before the labour Court under the said act. It is further stated that there was nothing wrong in passing the impugned orders and the instant Writ Petition not being maintainable the Rule is liable to be discharged with costs.

  2. Mr. Khalilur Rahman assisted by Mr. Mahmudul Haque, the learned Advocate appearing for the petitioner, submits that the dismissal order of the petitioner dated 1-4-1991 having been declared illegal by the judgment and order passed in writ Petition No. 3247 of 1996 the respondents again suspended the petitioner vide order dated 7-3-2000 giving effect from the date on which he was previously dismissed from the service and challenging the veracity of that suspension order he filed the IRO Case No. 22 of 2000 in the labour Court which was ultimately dismissed on contest. Thereafter, the respondents on some false charges framed a charge sheet against him vide order dated 11-4-2000 but nonetheless, they could not dispose of the proceeding within 180 working days from its initiation on 11-4-2000 and, as such, under the provision of Regulation 42(8) of the BFIDC Employees Service Regulations, 1989 the petitioner shall be treated to have been automatically exonerated from the charges brought against him and the continuance of the Proceeding Case after expiry of 180 working days is illegal. Mr. Mahmudul Haque, the learned Advocate appearing for the petitioner, submits that the statement made in the Affidavit-in-opposition as to the subsequent amendment of the BFIDC Employees Service Regulations, 1989 by the Board of Directors of the BFIDC repealing the Regulation 42(8) has no legal footing, inasmuch as the said Regulations were framed by the Ministry of Agriculture and Forest under section 18 of the Forest Industries Ordinance, 1959 and published in the Official Gazette and had there been any such amendment to the Regulations, 1989 that ought to have been made by the Government in the same manner as was followed in framing the said Regulations. In the instant case, the alleged repeal of the said Regulation 42(8) marked as Annexure-4 to the Affidavit-in-opposition, in fact, was not an amendment to the Regulations repealing the Regulation 42(8) by the Government but it was mere a decision taken by the Board of Governors of the BFIDC with a view to make such an amendment to the said Regulations repealing the Regulation 42(8) as desired by the Government. In this connection, Mr. Haque cited the Constitutional Law of Bangladesh 2nd Edition by Mr. Mahmudul Islam at page 375 where it has been written as thus.

“Where the delegating statute prescribes the mode, the delegated legislation must be published in that mode”

  1. Mr. Hoque submits that although section 18 of the aforesaid BFIDC Ordinance, 1959 does not require any Regulations framed thereunder to be published in the official Gazette but, in fact, while framing the instant BFIDC Employees Service Regulations, 1989 it was published in the official Gazette. As it appears, the said decision as to the amendment repealing Regulation 42(8) of the Regulations, 1989 (marked Annexure-4 to the Affidavit-in-opposition) was neither made by the Government nor published in the official Gazette in the manner as the same was previously framed and published in the official Gazette and, as such, the assertion of the respondents as to amendment repealing the provision of Regulation 42(8) has no legal footing and thus the proceeding in question drawn against the petitioner having not been completed within 180 working days the petitioner stood exonerated from the charges brought against him after expiry of 180 working days as per mandatory Provisions of Regulation 42(8) of the BFIDC Employees Service Regulations, 1989.

  2. Mr. Haque further submits that the earlier order of dismissal of the petitioner from the service having been declared illegal the drawing up of the subsequent proceeding giving retrospective effect was also illegal.

  3. On the contrary, Mr. Morshed Ahmed Khan, assisted by Mr. ASM Abdur Razzaque, the learned Advocate appearing for the respondents, submits that the petitioner was earlier suspended and dismissal from the service against which, challenging its veracity the petitioner filed Writ Petition No. 3247 of 1996 and the Rule issued in the said Writ Petition was made absolute technically with observation allowing the respondents to proceed against the petitioner under the new BFIDC Regulations 1989 if so advised. Accordingly, the respondents placed the petitioner under suspension vide order dated 81 dated 7-3-2000 against which he filed IRO Case No. 22 of 2000 in the First labour Court, Chittagong for setting aside the suspension claiming himself to be a worker within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965. Ultimately, upon hearing the said IRO Case was dismissed on merit on 17-9-2000 by the labour Court but nonetheless, the petitioner did never prefer any appeal or take any step against the said judgment and order dated 17-9-2000 passed by the labour Court. Mr. Khan further submits that the instant Writ Petition having been filed by the petitioner challenging the self-same suspension order No. 81 dated 7-3-2000 which had already been decided earlier in the aforesaid IRO Case No. 22/2000 is hit by the principle of constructive res judicata. Besides, the petitioner as an Assistant Field Superintendent under the respondents, his job description and nature of work is of a worker within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965 and previously, on the self-same issue of suspension from his service he, claiming himself to be a worker, filed the IRO Case No. 22 of 2000 in the First labour Court Chittagong. Mr. Khan further submits that, nevertheless, had there been any grievance of the petitioner concerning the condition of his service efficacious remedy was available to him before the labour Court under the Employment of labour (Standing Orders) act, 1965 and the Industrial Relations Ordinance, 1969. Mr. Khan lastly submits that in the circumstances, the petitioner is not entitled to take different pleas at different times taking the advantage of the jurisdiction of both the labour Court as well as of the High Court Division under Article 102 of the Constitution of the People’s Republic of Bangladesh to suit his purpose and the instant writ petition being not maintainable the Rule is liable to be discharged with cost.

  4. In reply to the question of maintainability raised by the learned Advocate for the respondents, Mr. Mahmudul Haque, the learned Advocate appearing for the petitioner, submits that the instant Writ Petition is quite maintainable because in the aforesaid Writ’ Petition No. 3247 of 1996 no such question as to the petitioner being a worker within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965 was ever agitated by the respondent, BFIDC and the petitioner was allowed relief as sought for in the said Writ petition. The petitioner being misconceived inadvertently might have filed the IRO Case No. 22 of 2000 in the labour Court but that does not disentitle him to real status and right to file the instant Writ petition and, as such, the instant Writ petition is quite maintainable. Mr. Haque further submits that as per clause 10(2) of the Schedule to the BFIDC Employees Service Regulations, 1989, the petitioner is an employee of the BFIDC and not a worker and, as such, the instant writ petition filed by the petitioner being an employee of the BFIDC is quite maintainable.

  5. Heard Mr. Khalilur Rahman, assisted by Mr. Mahmudul Haque, the learned Advocate appearing for the petitioner and Mr. Morshed Ahmed Khan, assisted by Mr. ASM Abdur Razzaque, the learned Advocate appearing for the respondents and perused the Writ Petition, Affidavit-in-opposition filed on behalf of the respondent Nos. 1-4, Supplementary Affidavit-in-opposition, Affidavit in reply to the Affidavit-in-opposition filed by the petitioner, the impugned orders and the Annexures filed therewith.

  6. In view of the facts and circumstances of the case and the submissions made by the learned Advocates on both the sides, before we take up the issues regarding amendment of the BFIDC Employees Service Regulations, 1989 repealing its Regulation orders and other issues, we consider it expedient to see whether the instant writ petition is maintainable since maintainability of the Writ Petition has been challenged and with this end in view it is to be determined at the outset whether the petitioner is a worker. In this regard, Mr. Mahmudul Haque, the learned Advocate for the petitioner, submits that as per clause 10(2) of the Schedule to the BFIDC Employees Service Regulations, 1989 the post of Assistant Field Superintendent belongs to the Administration Group which tends to show that the petitioner is not a worker. Controverting this submission Mr. AHM Abdur Razaque, the learned Advocate appearing for the respondents, submits in reference to the organisational set-up of the BFIDC marked Annexure-12 to the further supplementary Affidavit-in-Opposition on-behalf of the respondents, that as per, job specification shown therein the petitioner is a worker within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965. In the said organisational set-up of the BFIDC marked Annexure-12, the job description/nature of work of a Field Superintendent (which includes an Assistant Field Superintendent within the meaning of section 19 of the General Clauses act, 1897) is as follows:

“To work as staff officer to the project/enterprise head and to look after the following:

  1. Responsible for supervision of work in extraction centres/rubber garden in extraction of timber and plantation/processing of rubber. In furniture factory, responsible for procurement of Taw materials and preparation of estimate of raw material requirement for furniture joinery industry.

  2. Responsible for maintaining liaison between field work and management and execution of work in the field.

  3. In treatment plants, responsible for maintaining quality control, testing of treatment, etc.”

  1. A worker as defined in 2(v) of the Employment of labour (Standing Orders), act, 1965 is as follows:

“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

(iii) 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.”

  1. What is important in determining whether a person is a worker or not is to see the main nature of the job done by him and not so much his designation.

  2. In the instant case the petitioner is designated as “Assistant Field Superintendent” and employed in a supervisory capacity as appears from the organisational set-up of the BFIDC marked Annexure-12. In Article 10(2) to the Schedule of the BFIDC Employees Services Regulations, 1989 the post of “Assistant Field Superintendent” is shown in the Administrative Group but this does not mean that he exercises or performs any managerial or administrative nature of work. The issue as to whether a person was a worker or not has to be resolved in each case with reference to the evidence on record but, in the instant case, there is nothing on record to show that the petitioner although employed in a supervisory capacity, exercised 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.

  3. In view of the aforesaid nature of work performed and the extent of authority exercised by the, petitioner, it is evident that the petitioner is a worker within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965. In determining this issue it leaves no doubt to consider the petitioner to be a worker, inasmuch as admittedly the petitioner claiming himself to be a worker previously filed the IRO Case NO. 22 of 2000 in the First labour Court, Chittagong challenging the self-same order of suspension dated 7-3-2000 marked as Annexure-R to the Writ petition. Besides, as submitted by the learned Advocate for the respondents, one Md. Shamsul Alam, an Assistant Field Superintendent under the BFIDC holding a similar post to that of the petitioner, filed the IRO Case No. 77 of 2001 in the Second labour Court, Dhaka claiming himself to be a worker and in that ERO Case, although the status of the said Md. Shamsul Alam aa worker was controverted by the BFIDC, it was decided on hearing both the sides that the said Shamsul Alam holding such designation and performing the nature of work done by him was a worker and that judgment and order was not appealed against.

  4. Perused the judgment and order passed in the aforesaid IRO Case No. 77 of 2001 which is consistent with the submission of the learned Advocate for the respondents as above and admittedly, the same was not appealed against.

  5. Considering all the above aspects of the matter we are inclined to hold that the petitioner is a “worker” within the meaning of section 2(v) of the Employment of labour (Standing Orders) act, 1965 and, as such, the instant Writ petition is not maintainable since equally efficacious remedy is available to the petitioner under the aforesaid act as well as under the Industrial Relations Ordinance, 1969 before the labour Court.

  6. It also appears that the petitioner impugned the order of suspension dated 7-3-2000, marked Annexure-B, in the aforesaid IRO Case No. 22 of 2000 and the matter in issue, in spite of being decided in that case against the petitioner on hearing both the sides, the petitioner did never prefer any appeal or take any step against that order passed by the labour Court in IRO Case No. 22 of 2000. When the issue as to the veracity of the suspension order dated 7-3-2001 had already been decided between the same parties in the IRO Case No. 22 of 2000 by the labour Court the same issue as to the veracity of the same suspension order dated 7-3-2000 operates as res judicata and no fresh petition can be brought to agitate the self-same issue in the instant Writ petition and, for that matter too, the part of the Rule issued is also not maintainable.

  7. Accordingly, the Rule is discharged for being not maintainable. The petitioner may seek remedy in the labour Court or any other forum elsewhere he chooses.

There will be no order as to costs.