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Ali Azam (Md.) and Ors. Vs. Bangladesh and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 3980 of 2008

Decided On: 15.02.2009

Appellants: Ali Azam (Md.) and Ors. Vs. Respondent: Bangladesh and Ors.

Hon’ble Judges/Coram: Mir Hashmat Ali and Shamim Hasnain, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Mahbubul Haque and Mirza Alam Bhuiyan, Advocates

JUDGMENT

Mir Hashmat Ali, J.

  1. This Rule Nisi was issued calling upon the respondents to show-cause as to why the impugned Memo No. UFFL/Admin-02/16/1987 dated 2-4-2008 (Annexure ‘B’) issued in pursuance to BCIC’s Memo No. BCIC/LSA/1/28/99 dated 27-3-2008 so far as it relates to the petitioners issued by the Deputy Manager (Administration) on behalf of Respondent No. 4 retiring the petitioners from their service should not be declared to have been passed without lawful authority and is of no legal effect.

  2. Short facts of the petitioner’s case is that the petitioners were appointed on 12-7-1972, 12-7-1972, 2-2-1993, 5-7-1973, 25-5-1973, 15-2-1979, 2-7-1973, 12-7-1972, 2-7-1973 and 2-7-1973 respectively as Semi-skilled Technician, Semi-skilled Operator and helper. Thereafter they were promoted to the post of Master Technicians or Master Operators and the post of Master Technicians and Master Operators are in the category of workers as per definition of worker as defined in Section 2(e) of the Public Corporations (Management Co-ordination Ordinance, 1986 and They were workers under the Public Corporation namely Bangladesh Chemical Industries Corporation and the Respondent No. 6 is an unit of the said Corporation and, as such, the service of the petitioners are governed as per provision of the Corporation. According to Section 14A of the Public Corporation (Management Co-Ordination) Ordinance, 1986, the retirement age have been fixed at the age after completion of sixtieth year. But the impugned Memo No. UFFL/Admin-02/16/1987 dated 2-4-2008 (Annexure-‘B’) asking the petitioners to go on retirement at the age of 57 years according to Section 28 of the Bangladesh labour act (Act 42 of 2006) is illegal.

  3. Being aggrieved, the petitioners filed instant writ petition and obtained Rule and an order of stay.

  4. Mr. Mahbubul Hoque appearing with Mr. Mirza Alam Bhuiyan, the learned Advocates for the petitioners submits that the petitioners were appointed on 12-7-1972, 12-7-1972, 2-2-1993, 5-7-1973, 25-5-1973, 15-2-1979, 2-7-1973, 12-7-1972, 2-7-1973 and 2-7-1973 respectively as semi-skilled technician, semi-skilled operator and helper. Thereafter they were promoted to the post of Master Operator, Master Technician. The petitioners were permanent workers under the Public Corporation namely Bangladesh Chemical Industries Corporation and the respondent No. 3 is an unit of the said Corporation and, as such, the service of the petitioner is government as per provision of the Public Corporation (Management Co-ordination) Ordinance, 1986. As per definition of the worker as contemplated under Section 2(c) of the Public Corporations (Management Co-ordination) Ordinance, 1986 and they were workers. According to Section 14A of the Public Corporation (Management Co-Ordination) Ordinance, 1986. The retirement age of a worker has been determined.

  5. He further submits that the law itself specifically stated that a worker of an enterprise shall notwithstanding anything contained in the terms and conditions of the employment in any contract, Rule, Regulations, bye-law or other instrument an worker of the Corporation will retire from employment on the completion of the sixtieth year of his age.

  6. He further submits that provision of Section 3 of the Public Corporation (Management Co-ordination) Ordinance, 1986 and regulations made there under shall have effect not-withstanding anything inconsistent therewith contained in any other law for the time being enforce and, as such, the provision of the Section 14A of Public Corporation (Management Co-Ordination) Ordinance, 1986 shall prevail over the provision of Section 28 of Bangladesh labour Law, 2006. He further submits that Section 28 of the Bangladesh labour Law, 2006 was incorporated for the workers serving under any other enterprises, but not the enterprise controlled and managed under the Corporation having specific provision as has been provided for management and coordination of the affairs and business of certain Public Corporation under the Public Corporation (Management Co-ordination) Ordinance, 1986. This Public Corporation (Management Co-ordination) Ordinance will not govern in respect of other enterprises, which are not made the public corporation. For the Workers of other private enterprises (accept the workers of the Corporation) Bangladesh labour Law, 2006 will prevail. He further submits that the definition of worker under Bangladesh labour Law, 2006 are different then that of the definition of worker under Public Corporation (Management Co-ordination) (Amendment) act, 1994. Since the petitioner is a worker as defined under Section 2(e) of the Public Corporation (Management Co-ordination) Ordinance Section 14A of the Public Corporation (Management Co-ordination) Ordinance shall apply not Section 28 of the Bangladesh labour Law. But the respondents erroneously served the impugned Memo No. UFFL/Admin-02/16/1987 dated 2-4-2008 (Annexure-‘B’ to the writ petition) asking the petitioner to go on retirement at the age of 57th year of his age according to Section 28 of Bangladesh labour Law is highly illegal and liable to be declared to have been passed without lawful authority and is of no legal effect. In support of his contention, he cited the case of Bangladesh Gas Fields Co. Ltd. vs. Bangladesh, Md. Fariduddin Ahmed reported in 5 ADC 324.

  7. Mr. Tufailur Rahman appearing with Ms. Umme Salma, the learned Advocates for the respondent No. 2-4 submits that the workers serving under the Corporation are governed under Public Corporation (Management Coordination) Ordinance, 1986. But after promulgation of Bangladesh labour Law, 2006, Bangladesh labour Law will govern for the purpose of retirement of workers. He further submits that latter statute will prevail over earlier statute. He further submits that preference between general law and special law; the special law will prevail over general law. In support of his contention, he cited the case of Managing Director, Rupali Bank Limited vs. Tafazal Hossain reported in 44 DLR (AD) 260.

  8. He further submits that the impugned orders were issued in accordance with law and no illegally has been committed by the respondents and, as such, the Rule is liable to be discharged.

  9. We have heard the learned Advocates of both the parties and perused the writ petition affidavit in opposition filed by the respondent No. 2-4 and the annexures thereof.

  10. It appears that the petitioners are working as Master Operator, Master Technicians under Grade-1 under the Respondent No. 3 as unit under the Corporation Respondent No. 4 Urea Fertilizer Factory Ltd. having a limited liability incorporated under the Companies act. But it is an enterprise under the respondent No. 2, Bangladesh Chemical Industries Corporation BCIC and Respondent No. 2 has absolute control over the said company and the director of the said companies are appointed and removed at the option of the respondent No. 2 and if any vacancy occurs in the office of the director of the company: it always filled up by the respondent No. 2 and the factory is funning under the active guidance of the Corporation; in view of this special, features present writ petition is maintainable. Which has also been supported in the case of Bangladesh Gas Fields Co. Ltd. vs. Bangladesh Md. Fariduddin Ahmed reported in 5 ADC 324.

  11. Let us see, whether the petitioners are worker under Public Corporation. The definition of worker under the Public Corporation (Management Co-ordination) Amendment act, 1994. The petitioners are not working in any managerial, administrative, supervisory or solely on clerical capacity but a skilled worker and, as such, the petitioners comes under the definition of worker.

  12. Next question arises, whether Section 28 of the Bangladesh labour Law, 2006 is applicable in this case for the purpose of retirement age of the workers working under the Corporation. Bangladesh labour law and Public Corporations (Management Co-ordination) Ordinance, 1986 are special statute. Bangladesh labour Law is governing the workers serving in all enterprises of whole Bangladesh, where there is no specific provision determining the retirement age of worker.

  13. Bangladesh Public Corporations (Management Co-ordination) Ordinance govern the services of the workers serving under the Public Corporation only and, as such, we find that Public Corporations (Management Co-ordination) Ordinance, is a most special statute having limited jurisdiction determining the retirement age of the worker and employees of the Corporation, but Bangladesh labour Law, 2006 though subsequent special statute it has wide jurisdiction on general all over the country but when a specific provision has been laid down in any special statute that specific provision will apply upon the workers and employees of the said specific enterprises. Furthermore, for the purpose of retirement of the workers working under the Corporation specific provision has been laid down under Section 14A of the Public Corporations (Management Co-ordination) Ordinance, 1986 and, as such, we find that Section 14A Public Corporations (Management Co-ordination) Ordinance, 1986 is applicable for the workers and employees working under the Corporation and, as such, Section 28 of the Bangladesh labour Law, 2006 is not applicable for the retirement of the workers working under the Public Corporation.

  14. Let us see, the definition of the worker as contemplated under Section 2(e) of the Public Corporation (Management Co-ordination) (Amendment) act.

“2(e) the ‘worker’ means any person, skilled or unskilled, who works for hire of rewards, but does not include a person who is employed in any managerial administrative, supervisory or solely clerical capacity.”

  1. But we find from the definition of worker as defined under sub-section (65) of Section 2 of Bangladesh labour Law, 2006, which runs thus:

“শ্রমিক অর্থ শিক্ষাধীনসহ কোন ব্যক্তি, তাহার চাকুরীর শর্তাবলী প্রকাশ্য বা উহা যে ভাবেই 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 কেরানীগিরির কাজ করার জন্য নিযুক্ত হন, কিন্তু প্রধানতঃ প্রশাসনিক বা ব্যবস্থাপনামূলক কাজে দায়িত্বমূলক কাজে দায়িত্বপ্রাপ্ত কোন ব্যক্তি ইহার অন্তর্ভূক্ত হইবেন না।”

and, as such, we find that there are lot of difference in the definition of worker between the Bangladesh labour Law, 2006 with the definition of worker as defined under Section 2(e) of Public Corporation (Management Co-ordination) (Amendment) act, 1994.

  1. Section 14A of Bangladesh Public Corporation (Management Co-Ordination) Ordinance has been specifically incorporated subsequently vide Public Corporation (Management Co-ordination) (Amendment) act (Act 17 of 1994), which runs thus :

16.A. (1) A worker of an enterprise shall, notwithstanding anything contained in the terms and conditions of his employment if many contract, Rule, Regulation, by law or other instrument, retire from employment on the completion of the sixtieth year of his age.

  1. From the above, we find that the workers and employees of an enterprise under the Corporation notwithstanding any thing contained in the terms and condition of his employment in any contract Rule. Regulation, by law or other instrument, retire from employment on the completion of the sixtieth year of his age.

  2. From the above, we find that service Rules of the Corporation will apply upon all the workers under the Corporation. The petitioner being a worker under the Corporation is entitled to serve to the Corporation up to 60th year of his age and, as such, we find that the impugned order issued by the respondent No. 4 under Memo No. UFFL/Admin-02/16/1987 dated 2-4-2008 (Annexure’-‘B’) is liable to be declared to have been passed without lawful authority and is of no legal effect.

In the result, the Rule is made absolute without any order as to the cost. The impugned order under Memo No. UFFL/Admin-02/16/1987 dated 2-4-2008 (Annexure-‘B’) issued in pursuance to ‘BCIC’s Memo No. BCIC/LSA/1/28/99 dated 27-3-2008 50 far as it relates of the petitioners issued by the Deputy Manager (Administration) on behalf of Respondent No. 4 retiring the petitioners from their service is declared to have been passed without lawful authority and are of no legal effect.