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Labour Laws
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Abu Baker Siddique Vs. Government of Bangladesh

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)
Writ Petition No. 8478 of 2010

Decided On: 11.06.2012

Appellants: Abu Baker Siddique Vs. Respondent: Government of Bangladesh

Hon’ble Judges/Coram: Farah Mahbub and Abdur Rob, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Mahbubul Hoque, Advocate

For Respondents/Defendant: Zafor Ahmed and Mohammad Ashraf Uddin Bhuiyan, Advocates

JUDGMENT

Farah Mahbub, J.

  1. In this Rule, issued under Article 102 of the Constitution of the People’s Republic of Bangladesh, the respondents have been called upon to show cause as to why the impugned Memo No.নং ২১.১০.৯৭/৩৪৭ dated 31.05.2010 (Annexure-A) issued by the Respondent No. 3 retiring the petitioner on the ground of attaining 57 years of age should not be declared illegal, void, inoperative and is of no legal effect.

  2. At the time of issuance of the Rule the impugned Memo No.নং ২১.১০.৯৭/৩৪৭ dated 31.05.2010 was stayed for a prescribed period of time.

  3. In view of the statements so made in the writ petition Mr. Mahbubul Hoque, the learned Advocate appearing for the petitioner submits that the petitioner was appointed by the Senior Assistant Secretary on behalf of Secretary of the Corporation on 28.04.1978 as a permanent worker who was originally appointed as Typist. However, subsequently he was promoted to the post of Stenographer. In this regard he contends that the petitioner being a permanent worker in view of section 2(65) of the Bangladesh labour act, 2006 (in short, the Act) and that his job nature being neither administrative nor managerial but clerical as such, in view of section 28 of the act, 2006 the petitioner shall retire at the age of 60 years, which provides as follows-

“28। শ্রমিকের অবসর গ্রহণ- (১) এ অধ্যায়ের কিছুই উল্লেখ থাকুক না কেন, কোন প্রা নিয়োজিত কোন শ্রমিকের বয়স ৬০ (ষাট) বৎসর তিনি চাকুরী হতে স্বাভাবিক অবসর গ্রহণ করবেন

  1. Moreover, he goes to contend that as per section 3 of the act the service condition of every employee shall be guided by the said act whereas the Respondent No. 3 violating the said provisions has retired the petitioner on attaining the age of 57 years vide Memo No. নং ২১.১০.৯৭/৩৪৭ dated 31.05.2010 (Annexure-A).

  2. Conversely, Mr. Zafor Ahmed appearing with Mr. Mohammad Ashraf Uddin Bhuiyan, the learned Advocates by filing affidavit in opposition on behalf of the Respondent Nos. 2 and 3 goes to contend that whether the post “Stenographer” comes within the ambit of “কেরাণীগিরি (Clerical)” in order to bring the petitioner within the ambit of “worker” is a question of fact hence, since cannot be decided without evidence. He further submits that the petitioner himself wants to be guided by the labour act, 2006 hence, the statute having provided forum under section 213 (which has jurisdiction to try cases of labour dispute) as such without exhausting the said forum which is more efficacious in the given facts and circumstances, this Rule is not maintainable.

  3. Per contra, Mr. Hoque upon referring to the decision in the case of Md. Matiur Rahman and others Vs. Government of Bangladesh and others in writ petition Nos. 5286 and 5289 both of 2011 submits that considering the fact that before 2006 no retirement age was fixed as such section 28 has been incorporated in the labour act, 2006 fixing age of retirement at 60 years. Moreover, section 3 of the said act has made the same applicable to all the workers of the respective Corporation. Considering the said view in mind one of the Benches of this Division in the said case has categorically found that forum so created under the labour act, 2006 as well as the forum under Article 102 of the Constitution can be made available to the respective petitioner and as such made those Rules in connection with the said writ petitions maintainable.

  4. In reply, Mr. Zafor Ahmed goes to contend that the ratio of the said case cannot not be made applicable in the facts and circumstance of the present case, for in the instant case the impugned order has been issued on 31.05.2010 (Annexure-A) almost 1(one) year prior to the date of retirement with a view to enable the petitioner to seek redress, if so desires. Accordingly, he submits that considering the ratio as decided in the said case this Rule cannot be found maintainable.

  5. The bone of contention in the present Rule is that the petitioner being a “worker” as defined in section 2(65) of the act, for his nature of work comes within the ambit of কেরাণীগিরি , as such in view of section 28 of the act he is to retire at the age of 60, not 57 years.

  6. The petitioner was initially appointed as Typist by the Senior Assistant Secretary on behalf of the Secretary of the Corporation. Subsequently, he was retired at the age of 57 years while he was working in the post of Stenographer, vide the impugned order dated 31.05.2010 issued by the Respondent No. 3 on behalf of Respondent No. 2.

  7. Section 2(e) of the Public Corporation (Management and Co-ordination) Ordinance, 1986 defines the word “worker” which runs as follows-

“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 (as amended by act No. XVII of 1994) of the said Ordinance 1986 further prescribes the age of worker. However, on perusal of section 2(e) it appears that it excludes the job nature which comes within the purview of managerial, administrative, supervisory or solely clerical in nature. Section 2(65) of the labour act while defining the word “worker” has excluded administrative and managerial work, which runs as under:-

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

  1. However, in the instant case the petitioner is trying to take shelter of the word কেরাণীগিরি as incorporated in section 2(65) of the act and thereby is trying to bring the petitioner within the periphery of the labour act, 2006 with a view to take the benefit as provided under section 28 of the act where the retirement age of the worker has been fixed at 60 years. It is, however, our concern view that whether the job nature of Stenographer comes within the ambit of clerical capacity কেরাণীগিরি requires to be assessed by evidence, in view of absence of any definition of the said category or any guide line, which this court does not have in hand. Moreover, even if as per the claim of the petitioner it is considered that he is to be guided by the labour Court then section 213 of the act has provided efficacious alternative forum which the petitioner did not invoke.

  2. On perusal of the judgment and order passed in Writ Petition Nos. 5286 and 5289 both of 2011 it appears that the respective petitioners were Pump Operators under Dhaka Water Supply and Sewerage Authority, a “schedule organ” who were retired at the age of 57 years. One of the Benches of this Division while making the Rule absolute made both the Ordinance 1986 as well as act, 2006 applicable firstly on the count that Ordinance, 1986 is a special law having overriding effect of the act, XXII of 1974 and that it is not inconsistent with the act, 2006. Secondly, this Court made the act, 2006 applicable in view of the proviso to section 2(1) and 336 of the act, 2006 and found that the petitioners were entitled to be in service for 60 years and that section 28 of the act, 2006 was not inconsistent with section 14A of the Ordinance for being more favourable and conclusive with regard to the respective workers.

  3. In the said case, there was no dispute over the fact that the petitioners were workers and did not come within the exclusionary phrases as incorporated both in section 14A of the Ordinance as well as section 2(65) of the act, 2006. Here, the dispute is whether the job nature of the petitioner (Stenographer) comes within the ambit of clerical nature in order to find him as a worker under section 2(65) of the act and thus, cannot be resolved without required evidence. Moreover, since the petitioner himself is claiming protection under the act, 2006 hence, the forum as provided under section 213 of the act will come into play barring the petitioner from invoking Article 102 of the Constitution having efficacious alternative remedy. As such, this Rule fails as being not maintainable. However, since the petitioner has invoked wrong forum to redress his grievance as such he will be at liberty to make an application under section 213 of the labour act, 2006.

  4. In the result, the Rule is discharged as being not maintainable. However, pursuant to the ad-interim order of stay dated 31.10.2010 the petitioner has been serving till date, though he has been retired vide the impugned order at the age of 57 years on 22.05.2011. As such, the respondents are hereby directed to pay his service benefit and other allowance which he is legally entitled to in accordance with law till date within 60(sixty) days from the date of receipt of the copy of this judgment and order.

  5. There will be no order as to costs.

Abdur Rob, J.

I agree.