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Bangladesh Film Development Corporation Vs. Chairman, labour Court & another

Citation: 59 DLR (2007) 379

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 746-751 of 2006

Decided On: 26.02.2007

Appellants: Bangladesh Film Development Corporation Vs. Respondent: Chairman, labour Court & another

Hon’ble Judges/Coram: Syed Mahmud Hossain and Quamrul Islam Siddique, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Md Saidur Rahman, Advocate

For Respondents/Defendant: Chowdhury Sanawar Ali with Mohammad Jahangir Alam, Advocates - For Respondent No. 2 (In all the Writ Petitions)

JUDGMENT

Quamrul Islam Siddique, J.

  1. These Rules were head together and are being disposed of by this common judgment as they do involve common question of law and of facts. In these six applications under Article 102 of the Constitution of the People’s Republic of Bangladesh, Rules were issued almost in identical terms calling upon the respondents to show cause as to why the impugned judgment and order dated 29-12-2005 passed by the First labour Court, Dhaka (respondent No. 1) in Complaint Case Nos. 22 of 2002, 21 of 2002, 23 of 2002, 24 of 2002, 27 of 2002 and 25 of 2002 (Annexure-A to all the Writ Petitions) would not be declared to have been passed without any lawful authority and are of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

  2. At the time of issuance of the Rule, the petitioner, however, obtained an interim order staying the operation of the impugned judgment and order passed by the First labour Court, Dhaka till disposal of the Rule.

  3. The common facts leading to the issuance of the Rules, in brief, are:

Respondent No. 2(in Writ Petition No. 746 of 2006) was the Upper Division Assistant under the petitioner and subsequently he was promoted to the post of Schedule Programmer/Accountant. He was proceeded against on the charge of misappropriation. The enquiry officer enquired into the matter and submitted report on 8-8-2002. Thereafter, second show cause notice was served upon him and subsequently he was removed from service on 22-8-2002. After that respondent No. 2 filed a grievance petition and thereafter filed Complaint Case No. 22/ 2002 under section 25 of the Employment of labour (Standing Orders), act, 1965 (hereinafter referred to as the act, 1965) against the petitioner in the First labour Court, Dhaka.

  1. The present petitioner as 2nd party contested the case denying all the material allegations made in the Complaint Case. Its case is that the instant case was not maintainable in the labour Court, inasmuch as the complainant was the Schedule Programmer/Accountant and that he was not a worker as defined in the act, 1965. The further case of the petitioner is that the labour Court has no jurisdiction to try the case as the employees of the Film Development Corporation (shortly, FDC) have their own Service Rules, 1978.

  2. The First labour Court, Dhaka, however, allowed the Complaint Case on the findings that the first party (respondent No. 2 herein) was a worker within the meaning of section 2(v) of the act, 1965 and that the Bangladesh FDC is an industrial establishment and that the act, 1965 would be applicable for its employees. The first labour Court, Dhaka allowed the Complaint Case on contest and declared that the removal of the petitioner (respondent No. 2 herein) was illegal. The labour Court further directed the respondent (petitioner herein) to reinstate the petitioner to his post with all attending benefits within 30 days from passing the judgment.

  3. The case of the petitioner of Writ Petition No. 750 of 2006 is almost identical with that of the case of Complaint Case No. 22 of 2002. In this case, respondent No. 2 was employed as an Auditor and he was removed from service on 22-8-2002. The labour Court after considering all the materials on record allowed the Complaint Case and directed the respondents (petitioner herein) to reinstate the petitioner (respondent No. 2 herein) to his post with all the attending benefits.

  4. The case of the petitioner in Writ Petition No, 749 of 2006 is that respondent No. 2 was the Upper Division Assistant and he was removed from service on 22-8-2002 following the procedures laid down in the Government Servants (Discipline and Appeal) Rules, 1985. Against the order of removal, he filed a Complaint Case No. 24 of 2002 and the labour Court after considering all the materials on record allowed the Complaint Case and directed the respondents to reinstate the petitioner (respondent No. 2 herein) with all the attending benefits.

  5. The case of the petitioner in Writ Petition No. 747 of 2006 is that respondent No. 2 was serving as the Steno Typist under the petitioner and he was removed from service on 22-8-2002 following the procedures laid down in the Government Servants (Discipline and Appeal) Rules, 1985.

  6. The case of the petitioner in Writ Petition No. 748 is that respondent No. 2 was the Cashier and he was removed from service on 22-8-2002 following the procedures as laid down in the Government Servants (Discipline and Appeal) Rules, 1985.

  7. The case of the petitioner of Writ Petition No. 751 of 2006 is that respondent No. 2 was the Accountant (production) and he was removed from service on 22-8-2002 following the procedures laid down in the Government Servants (Discipline and Appeal) Rules 1985. The First labour Court, Dhaka after considering all the materials on record allowed the Complaint Cases and directed the respondent (petitioner herein) to reinstate them to their post within 30 days from passing the judgment with all the attending benefits.

  8. Being aggrieved by, and dissatisfied with, the judgment and order 29-12-2005 passed by the First labour Court, Dhaka, the petitioner moved this Court and obtained the instant Rule Nisi from this Court.

  9. The petitioner also filed a supplementary affidavit wherein it has been stated that the Bangladesh Film Development Corporation adopted the Government Servants (Discipline and Appeal) Rules, 1985 (hereinafter referred to as the Rules, 1985) and that in the case of the employees of FDC the Rules, 1985 shall be applicable.

  10. Respondent No. 2 in all of the Writ Petitions entered appearance by filing affidavit-in-opposition controverting all the material allegations made in the Writ Petitions. However, the case of respondent No. 2, (in all the Writ Petitions) in short, is that the FDC was set up in 1957 (under act XV of 1957) to promote the local film industry. The Corporation extends necessary facilities and services to film producers on commercial basis and, as such, it falls within the ambit of Commercial/Industrial Establishment as defined in section 2 (d) and (j) of the act, 1965. Respondent No. 2 is a worker within the meaning of section 2(v) of the act, 1965. Therefore, the labour Court was an appropriate forum for respondent No. 2 to seek redress against the order of removal passed by the petitioner. The labour Court did not commit any illegality in entertaining the Complaint Case filed by respondent No. 2. The FDC may have its own service regulations but it cannot be beyond the ambit of the act, 1965. According to the law, if any provision of the Service Regulations of the FDC is less favourable to the expressed provisions of the act, 1965, the act of 1965 shall prevail. The petitioner has no lawful grievance against the impugned judgment and order passed by the labour Court. The judgment passed by the labour Court is based on proper appreciation of law and of facts.

  11. Mr Md Saidur Rahman, learned Advocate appearing on behalf of the petitioners, submits that the FDC adopted the Government Servants (Discipline and Appeal) Rules, 1985 and that the labour Court has no jurisdiction to entertain the Complaint Cases filed by respondent No. 2. He further submits that the judgment and order passed by the labour Court is illegal and without jurisdiction.

  12. Mr Chowdhury Sanawar Ali, learned Advocate appearing on behalf of respondent No. 2, submits that the labour Court has jurisdiction to entertain the Complaint Cases filed by respondent No. 2. He further submits that though the FDC have its own Service Regulations, those cannot be beyond the ambit of the act, 1965. In support of his contention, learned Advocate refers to the case of Film Development Corporation vs. Chairman, labour Court, 49 DLR 396; Managing Director, Sonali Bank and 2 others vs. Md Jahangir Kabir Molla 48 DLR 395. We shall take stock of those cases later on.

  13. Admittedly, respondent No. 2 in all the Writ Petitions was serving under the petitioner (herein) in different capacities. The learned Advocate appearing for the petitioner submits that respondent No. 2 is not a worker within the meaning of the act, 1965 and that the labour Court has no jurisdiction to entertain the Complaint Cases. He also submits that since the FDC adopted the Government Servants (Discipline and Appeal) Rules, 1985, the labour Court acted illegally in entertaining the Complaint Cases.

  14. Mr Chowdhury Sanawar Ali, learned Advocate appearing on behalf of the petitioner, refers to the Film Development Corporation act, 1957 (hereinafter referred to as the act, 1957) and submits that according to sub-section (2) of section 6 of the act, 1957 the FDC is a Commercial Organisation. Sub-section (2) of section6 of the act, 1957 reads as follows:

The Board in discharging its functions shall act on commercial considerations and shall be guided on questions of policy by such directions as the Provincial Government, which shall be the sole judge whether a question is a question of policy, may direct from time to time.
(emphasis supplied)

  1. The word “Board” occurring in sub-section (2) of section 6 of the act, 1957 shall mean and include the Board of Directors of the Corporation.

  2. Therefore, it is clear that the FDC in discharging its functions acts on commercial consideration.

  3. Sub-section (d) of section 2of the act, 1965 defines commercial establishment. Sub-section (d) of section 2 of the act, 1965 reads as follows:

Commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment employs workers, a unit of a joint-stock company, an insurance company, a banking company or a bank, a broker’s office or stock exchange, a club, a hotel or a restaurant or an eating house, cinema or theatre, or such other establishment or class thereof as the Government may, by notification in the official Gazette, declare to be a commercial establishment for the purpose of this act

  1. From the above definition, it is clear that the FDC falls within the meaning of commercial establishment.

Section 2(v) of the act, 1965, defines “worker” 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".

  1. Respondent No. 2 (in all the Writ Petitions) was not employed in a managerial or administrative capacity nor had any functions of managerial or administrative in nature. Therefore, respondent No. 2 in all the Writ Petitions is a “worker” within the meaning of section 2(v) of the act. 1965.

  2. The learned Advocate for respondent No. 2, refers to the case of Film Development Corporation vs. Chairman, labour Court 49 DLR 396 and submits that FDC may have its own service Regulations but those cannot be beyond the ambit of the Employment of labour (Standing Orders) act. 1965. In the case referred to above, a Division Bench of this Court held as follows:

The FDC may have its own Service Regulations but it cannot be beyond the ambit of the Employment of labour (SO) act, A Service Regulations, even if a statutory one, cannot exclude or supersede the Employment of labour (SO) act. Therefore, if any provision of the Service Regulations of the FDC is less favourable to the express provision of the Standing Orders act that provision, in our view, is void ab initio.

  1. The facts and circumstances of the case in hand are identical. Therefore, the principle expressed in the case referred to above fully applies to the facts and circumstance of the case in hand.

  2. Similar view has also been expressed in the case of Managing Director, Sonali Bank and 2 others vs. Md Jahangir Kabir Molla, 48 DLR 395. In the case referred to above, the High Court Division has held as follows:

“Further, section 3of the Employment of labour (Standing Orders) act, 1965 provides that:
In every shop or commercial establishment, employment of workers and other matters incidental thereto shall be regulated in accordance with the provision of mis act.
Provided that any shop of commercial or industrial establishment may have its own rules regulating employment of workers or any class thereof, but no such rule shall be less favourable to any worker than the provisions of this act.
The Sonali Bank may have its Service Regulations but that will not take it outside the ambit of the Employment of labour (Standing Orders) act, 1965.

  1. From the above decisions, it is clear that though the FDC have its own Service Regulations, it cannot be beyond the ambit of the Employment of labour (Standing Orders) act, 1965 and that a Service Regulations, even if a statutory one, cannot exclude or supersede the Employment of labour (Standing Orders) act, 1965.

  2. Therefore, in our view, the First labour Court, Dhaka did not commit any illegality in entertaining the Complaint Cases.

  3. We have perused the judgment of the First labour Court, Dhaka and we find that the judgment is based on proper appreciation of facts and of law. We are, therefore, not inclined to interfere with the judgment and order dated 29-12-2005 passed by the First labour Court, Dhaka.

  4. For the reasons stated, we do not find any substance in these Rules. In the result, the Rules are discharged. The stay order passed at the time of issuance of these Rules is hereby recalled and vacated.

There is no order as to costs.