Hasmot Ali and others vs. The Chairman, 3rd Labour Court, Dhaka and others

Citation: 2008 BLD 427

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 1405-1410 Of 2004, Writ Petition No. 1696 of 2004 with Writ Petition No. 1697 of 2004, Writ Petition No. 1699 of 2004 and Writ Petition No. 1700 of 2004, Writ Petition No. 1695 of 2004 with Writ Petition No. 1698 of 2004 and Writ Petition No. 1405-1410 Of 2004

Decided On: 27.04.2006

Appellants: HASMOT ALI AND OTHERS Vs. Respondent: THE CHAIRMAN, 3RD labour COURT, DHAKA AND OTHERS

Hon’ble Judges/Coram: Md. Muzammel Hossain and Farid Ahmed, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: A.K.M. Nazrul Islam, Advocate, Writ Petition No. 1405-1410 Of 2004 Abul Kalam Mainuddin, Advocate, Writ Petition No. 1696 of 2004 with Writ Petition No. 1697 of 2004, Writ Petition No. 1699 of 2004 and Writ Petition No. 1700 of 2004, Garib Newaz with Moksuda Begum, Advocates, Writ Petition No. 1695 of 2004 with Writ Petition No. 1698 of 2004 and Writ Petition No. 1405-1410 Of 2004

For Respondents/Defendant: Abdul Wadud Bhuiyan with Md. Shamsur Rahman, Advocates for the respondent Nos. 2-5

JUDGMENT

Md. Muzammel Hossain, J.

1. Rules in Writ Petition Nos. 1405 to 1410 of 2004, 1696- 1697 & 1699-1700 of 2004, 1695 and 1698 of 2004 have arisen out of a single judgment and decision dated 3.03.2004 passed by the Chairman, 3rd labour Court, Dhaka in I.R.O. Case Nos. 23 of 2001, 24 of 2001, 25 of 2001, 22 of 2001, 26 of 2001, 27 of 2001, 30 of 2001, 33 of 2001, 32 of 2001, 29 of 2001, 28 of 2001 and 31 of 2001 respectively and accordingly these matters are taken up together and are being disposed of by this single judgment. In the aforesaid writ petitions, Rules were issued in identical terms calling upon the respondents to show cause as to why the aforesaid decision and order dated 3.03.2004 passed by the Chairman, 3rd labour Court, Dhaka respondent no. 1, in the I.R.O. cases, shall not be declared to have been made without lawful authority and to be of no legal effect and or such other or further order or orders passed as to this Court may seem fit and proper.

2. For the sake of brevity and convenience we would like to discuss, in brief, the respective petitioner’s cases separately. In Writ Petition No. 1405 of 2004 arising out of I.R.O. Case No. 23 of 2001 the 1st party petitioner Hasmat Ali along with other colleagues initially was appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation. Zia International Airport, Dhaka, with effect from 14th July, 1996 which was extended for another 90 days on 14.10.1996 and then the petitioner was again appointed in the same post and the same place out of practical necessity and in the interest of Biman in terms of Administrative Order No. 12/86 and thereafter he was appointed for another 90 days on 18.01.1997 and then he was also appointed continuously on 13.03.2001 till 22.03.2004 when the service was discontinued after the decision of the 3rd labour Court. Dhaka passed on 3.03.2004. It is stated that on 18.12.2000 there was an internal transfer whereby the first party petitioner was transferred to Line Maintenance until 13.03.2001 when he was again transferred to Base Maintenance wherein he was working till date. The first party was paid wages @ Tk. 65.00 per day for the first term of 90 days and Tk. 65.00 again per day for the second term of 90 days as a causal worker on casual basis and payments were made by the Engineering Department The First Party-petitioner worked for 270 days in the first 3 terms and after a short gap he was working continuously since 13.06.2001 till date. Thus he was entitled to be made permanent as he has put in a period of service of 8 years. Though the first party-petitioner was engaged in causal service against vacant permanent posts and has been working continuously for many years and thereby the first party-petitioner is entitled to a permanent post. In this circumstance the opposite party No. 1 in order to regularize those posts made advertisement in National Dailies. The petitioner passed S.S.C examination in Science Group in the 2nd Division and H.S.C. examination in Science Group in the 2nd Division and as such there is no scope to hold that the petitioner had no requisite qualification to get appointment to the post of Aircraft Mechanic. In this way the first party-petitioner was deprived of his right of being appointed to the permanent post. The petitioner made several representations to the Higher Authorities of Bangladesh Biman Corporation without any success. It is further stated that the petitioner was appointed for 90 days on 14.07.1996 and thereafter his tenure was extended for another two terms and after a gap of 3 days he has been working continuously since 13.03.2001 till date. First party was initially appointed as a skilled worker having completed or deemed to have completed his period of probation after the expiry of 6 months.

3. In Writ Petition No. 1406 of 2004 arising out of I.R.O. Case No. 24 of 2001 the first party-petitioner Md. Abdul Kader along with other colleagues was initially appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 14th July, 1996 which was extended for another 90 days on 14.10.1996 and then petitioner was again appointed to the same post and the same place out of practical necessity and in the interest of Biman in terms of Administrative Order No. 12/86 and thereafter he was appointed for another 90 days on 18.01.1997 and then he was also appointed on 13.03.2001 continuously till 22.03.2004 when the service was discontinued after the decision of the 3rd labour Court, Dhaka which was passed on 3.03.2004. It is stated that on 18.12.2000 there was an internal transfer whereby the first party-petitioner was transferred to Line Maintenance until 13.03.2001 when he was again transferred to Base Maintenance wherein he was working till date. The first party was paid wages @ Tk. 65.00 per day for the first term of 90 days and Tk. 65.00 again per day for the second term of 90 days as causal worker on casual basis and payments were made by Engineering Department. The petitioner worked for 270 days in the first 3 terms and after a short gap he was working continuously since 13.03.2001 till date. Thus he was entitled to be made permanent though he has put in a period of service of 8 years. While the first party was engaged in causal service against vacant permanent posts, the opposite party no. 1 respondent No. 2 in order to regularize those posts made advertisements in the National Dailies. The petitioner passed S.S.C. examination Science Group in the 2nd Division and H.S.C. examination in Science Group in 2nd Division in 1984 and as such there is no scope to hold that the petitioner had no requisite qualification to get appoint to the post of Aircraft Mechanic. In this way the first party petitioner was deprived of his legal claim of being appointed to the permanent post. The petitioner made several representations to the higher authorities of Bangladesh Biman Corporation without any success. It is further stated that the petitioner was appointed for 90 days on 14.07.1996 and then extended for another two terms of 180 days and the 4th appointment dated 18.03.1997 was indefinite and continuous days with an intentional break of 3 days. Thus the first party petitioner was initially appointed as a skilled worker having completed or deemed to have completed his period of probation after the expiry of 6 months.

4. In Writ Petition No. 1407 of 2004 arising out of I.R.O. Case No. 25 of 2001 the first party-petitioner B.H.M. Mohin along with other colleagues initially appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation. Zia International Airport, Dhaka with effect from 14th July, 1996 which was extended for another 90 days on 14.10.1996 and then the petitioner was again appointed to the same post and the same place out of practical necessity and in the interest of Biman in terms of Administrative Order No. 12/86 and thereafter he was appointed for another 90 days on 18.01.1997 and then he was also appointed on 13.03.2001 continuously till 22.03.2004 when the service was discontinued after the decision of the 3rd labour Court, Dhaka passed on 3.03.2004. It is stated that on 18.12.2000 there was an internal transfer whereby the first party petitioner was transferred to Line Maintenance until 13.03.2001 when he was again transferred to Base Maintenance wherein he was working till date. The first party petitioner was paid wages @ Tk. 65.00 per day for the first term of 90 days and Tk. 65.00 again per day for the second term of 90 days as causal worker on casual basis and payments were made by Engineering Department. The petitioner worked for 270 days in the first 3 terms and after a short gap he was working continuously since 13.03.2001 till date. Thus he was entitled to be made permanent though he has put in a period of service of 8 years. While the first party was engaged in causal service against vacant permanent posts, the opposite party no. 1 respondent no. 2 in order to regularize those posts made advertisements in the National Dailies. The petitioner passed S.S.C examination in Science Group in the 1st Division and H.S.C. examination in Science Group in the 2nd Division and as such there is no scope to hold that the petitioner had no requisite qualifications to get appointed to the post of Aircraft Mechanic. In this way the first party petitioner was deprived of his legal claim of being appointed to the permanent post. The petitioner made several representations to the Higher Authorities of Bangladesh Biman Corporation without am success. It is further stated that the petitioner was appointed for 90 days on 14.07.1996 and his tenure was extended with same terms and conditions as stated in respect of the petitioner in W.P. No. 1405 of 2004 Thus the first party petitioner was initially appointed as a skilled worker having completed or deemed to have completed his period of probation after the expiry of 6 months.

5. In Writ Petition No. 1408 of 2004 arising out of I.R.O. Case No. 22 of 2001 the first party-petitioner Md. Shah Alam along with other colleagues initially was appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation. Zia International Airport, Dhaka with effect from 14 July, 1996 which was extended for another 90 days on 14.10.1996 and then petitioner was again appointed to the same post and the same place out of practical necessity and the interest of Biman in terms of Administrative Order No. 12/86 and thereafter he was appointed for another 90 days on 18.01.1997 and then he was also appointed on 13.03.2001 continuously till 22.03.2004 when the service was discontinued after the decision of the 3rd labour Court, Dhaka passed on 03.2004. It is stated that on 18.12.2000 there was an internal transfer whereby the first party was transferred to Line Maintenance until 13.03.2001 when he was again transferred to Base Maintenance wherein he was working till date. The first party-petitioner was paid wages @ Tk.65.00 per day for the first term of 90 days and Tk. 65.00 again per day for the second term of 90 days as causal worker on casual basis and payments were made by Engineering Department. The petitioner worked for 270 days in the first 3 terms and after a short gap he was working continuously since 13.03.2001 till date. Thus he was entitled to be made permanent though he has put in a period of service of 8 years. While the first party was engaged in causal service against vacant permanent posts, the opposite party no. 1 respondent in order to regularize those posts made advertisements in the National Dailies. The petitioner passed S.S.C. examination in Science Group in the 2nd Division and H.S.C. examination in Science Group in the 3rd Division and as such there is no scope to hold that the petitioner had no requisite qualification to be appointed to the post of Aircraft Mechanic. In this way the first party-petitioner was deprived of his legal claim of being appointed to the permanent post. The petitioner made several representations to the Higher Authorities of Bangladesh Biman Corporation without any success. It is further stated that the petitioner was appointed for 90 days on 14.07.1996 and his tenure was extended with the same terms and conditions as stated in W.P. No. 1405 of 2004. Thus the first party petitioner was initially appointed as a skilled worker having completed or deemed to have completed his period of probation after the expiry of 6 months.

6. In Writ Petition No. 1409 of 2004 arising out of I.R.O. Case No. 26 of 2001 the first party-petitioner Md. Abdul Matin along with other colleagues initially was appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 14th July, 1996 which was extended for another 90 days on 14.10.1996 and then petitioner was again appointed to the same post and the same place out of practical necessity and the interest of Biman in terms of Administrative Order No. 12/86 and thereafter he was appointed for another 90 days on 18.01.1997 and then he was also appointed on 13.03.2001 continuously till 22.03.2004 when the service was discontinued after the decision of the 3rd labour Court, Dhaka passed on 03.03.2004. It is stated that on 18.12.2000 there was an internal transfer whereby the first party-petitioner was transferred to Line Maintenance until 13.03.2001 when he was again transferred to Base Maintenance wherein he was working till date. The petitioner was paid wages @ Tk. 65.00 per day for the first term of 90 days and Tk. 65.00 again per day for the second term of 90 days as causal worker on casual basis and payments were made by Engineering Department. The petitioner worked for 270 days in the first 3 terms and after a short gap he was working continuously since 13.03.2001 till date. Thus he was entitled to be made permanent though he has put in a period of service of 8 years. While the petitioner was engaged in causal service against vacant permanent posts, the opposite party no. 1 respondent in order to regularize those posts made advertisements in the National Dailies. The petitioner passed S.S.C. examination in Science Group in the 2nd Division and H.S.C. examination in Science Group in the 2nd Division and as such there is no scope to hold that the petitioner had no requisite qualification to be appointed to the post of Aircraft Mechanic. In this way the first party petitioner was deprived of his legal right of being appointed to the permanent post. The petitioner made several representations to the Higher Authorities of Bangladesh Biman Corporation without any success. It is further stated that the petitioner was appointed for 90 days on 14.07.1996 and his tenure was extended with the same terms and conditions as stated in W.P. No. 1405 of 2004. Thus the first party petitioner was initially appointed as a skilled worker having completed or deemed to have been completed his period of probation after the expiry of 6 months.

7. In Writ Petition No. 1410 of 2004 arising out of I.R.O. Case No. 27 of 2001 the petitioner Md. Maksudul Haque along with other colleagues initially was appointed as Aircraft Mechanic on causal basis for 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 14th July, 1996 which was extended for another 90 days on 14.10.1996 and then petitioner was again appointed to the same post and the same place out of practical necessity and in the interest of Biman in terms of Administrative Order No 12/86 and thereafter he was appointed for another 90 days on 18.01.1997 and then he was also appointed on 13.03.2001 continuously till 22.03.2004 when the service was discontinued after the decision of the 3rd labour Court, Dhaka passed on 3.03.2004. It is stated that on 18.12.2000 there was an internal transfer whereby the first party-petitioner was transferred to Line Maintenance until 13.03.2001 when he was again transferred to Base Maintenance wherein he was working till date. The petitioner was paid wages @ Tk. 65.00 per day for the first term of 90 days and Tk.65.00 again per day for the second term of 90 days as causal worker on casual basis and payments were made by the Engineering Department. The petitioner worked for 270 days in the first 3 terms and after a short gap he was working continuously since 13.06.2001 till date. Thus he was entitled to be made permanent though he has put in a period of service of 8 years. While the first party was engaged in causal service against vacant permanent posts, the 2nd party no. 1 respondent no. 2 in order to regularize those posts made advertisements in the National Dailies. The petitioner passed S.S.C. examination in Science Group in the 1st Division and H.S.C. examination in Science Group in the 2nd Division and as such there is no scope to hold that the petitioner had no requisite qualification to be appointed to the post of Aircraft Mechanic. In this way the first party petitioner was deprived of his legal right of being appointed to the permanent post. The petitioner made several representations to the Higher Authorities of Bangladesh Biman Corporation without any success. It is further stated that the petitioner was appointed for 90 days on 14.07.1996 and his tenure was extended with the same terms and conditions as stated in W.P. No. 1505 of 2004, thus the first party petitioner was initially appointed as a skilled worker having completed or deemed to have been completed his period of probation after the expiry of 6 months.

8. In Writ Petition No. 1696 of 2004 arising out of I.R.O. Case No. 30 of 2001 the petitioner F.M. Anisur Rahman along with other colleagues initially appointed Aircraft Mechanic on causal basis for 90 days against the permanent posts in the Sheet Metal Shop, Engineering Department of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 1st June, 1996 which was extended for another 90 days on 12.08.1996 and then petitioner was again appointed to the same post and the same place out of practical necessity and in the interest of Biman in terms and thereafter he was appointed for 3rd term for another 90 days on 23.11.1996 and then he was appointed for 4th term on 05.02.1997 to the same post and the same place and after expiry of the 4th term he was again appointed on 14.05.1997 to the same post and since then he has performing his duties to the full satisfaction of his superiors. The petitioner continuously worked for more than 90 days without any break as is evident from the pay slips (Annexure-C) series and as such he is entitled to be a permanent worker and all financial and other benefits permissible as per rules and regulations of the Bangladesh Biman Corporation. Inspite of repeated demands made on several occasions the respondent nos. 2-6 did not make the petitioner’s service permanent and finding no other alternative remedy the present petitioner instituted present I.R.O. Case No. 30 of 2001.

9. In Writ Petition No. 1697 of 2004 arising out of I.R.O. Case No. 33 of 2001 the petitioner Md. Iktiar Farazi along with another colleague initially was appointed Cleaner on causal basis for 90 days against the permanent posts in the Industrial Shop, Engineering Department of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 1st June, 1996 which was extended for another 90 days on 12.08.1996 and then the petitioner was appointed for the 2nd term for another 90 days on 23.11.1996 to the same post and the same place out of practical necessity and in the interest of Biman in terms and thereafter he was appointed for 3rd term and then he was appointed for 4th term on 5.02.1997 to the same post and the same place and after expiry of 4th term he was again appointed on 14.05.1997 to the same post since then he has been performing his duties to the full satisfaction of his superiors. The petitioner continuously worked for more than 90 days without any break as is evident from the pay slips (Annexure-C series) and as such he is entitled to be permanently absorbed and all financial and other benefits permissible as per rules and regulations of the Bangladesh Biman Corporation. Inspite of demands made on several occasions the respondent nos. 2-6 did not make the petitioner’s service permanent and finding no other alternative remedy the present petitioner instituted present I.R.O. Case No. 33 of 2001.

10. In Writ Petition No. 1699 of 2004 arising out of I.R.O. Case No. 32 of 2001 the petitioner Sk. Ali Ahmed along with his colleague initially was appointed as Cleaner on causal basis for 90 days against permanent posts in the Industrial Shop. Engineering Department of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 1st June. 1996 which was extended for another 90 days on 12.08.1996 and then petitioner was appointed for another 90 days on 23.11.1996 in the same post and the same place out of practical necessity and in the interest of Biman in terms and thereafter he was appointed for 3rd term and again he was appointed for 4th term on 5.02.1997 to the same post and the same place and after expiry of 4th term he was again appointed on 14.05.1997 in the same post since then he has been performing his duties to the full satisfaction of his superiors. The petitioner continuously worked for more than 90 days without any break as is evident from the pay slips (Annexure-C series and as such he is entitled to be a permanent worker and all financial and other benefits permissible as per rules and regulations of the Bangladesh Biman Corporation. Inspite of demands made on several occasions the respondent nos. 2-6 did not make the petitioner’s service permanent and finding no other alternative remedy the 1st party petitioner instituted I.R.O. Case No. 32 of 2001.

11. In Writ Petition No. 1700 of 2004 arising out of I.R.O. Case No. 29 of 2001 the 1st part petitioner Md. Shafiqul Islam along with other colleagues initially was appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Sheet Metal Shop. Engineering Department of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 1st June, 1996 which was extended for another 90 days on 12.08.1996 and then the petitioner was again appointed in the same post and the same place out of practical necessity and in the interest of Biman and thereafter he was appointed for 3rd term for another 90 days on 23.11.1996 and then he was appointed for 4th term on 5.02.1997 in the same post and the same place and after expiry of 4th term he was again appointed on 14.05.1997 in the same post and since then he has been performing his duties to the full satisfaction of his superior. The petitioner continuously worked for more than 90 days without any break as is evident from the pay slips (Annexure-C series) and as such he is entitled to be a permanent worker and all financial and other benefits permissible as per rules and regulations of the Bangladesh Biman Corporation. Inspite of demand made on several occasions the respondent nos.2-6 did not make the petitioner’s service permanent and finding no other alternative remedy the present petitioner instituted I.R.O. Case No. 29 of 2001.

12. In Writ Petition No. 1695 of 2004 arising out of I.R.O. Case No. 28 of 2001 the 1st party petitioner Lakhida Khanam was initially appointed Data Entry Assistant on causal basis for 90 days against permanent posts in the Central Engineering Department of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 11th August, 1996 which was extended for another 90 days on 29.10.1996 and then the petitioner was again appointed to the same post and the same place out of practical necessity and in the interest of Biman and thereafter she was appointed for 3rd term for another 90 days on 27.04.1997 and then she was appointed for 4th term on 26.02.1998 to the same post and the same place and after expiry of 4th term she was again appointed on 24.04.1999 to the same post since then she has been performing her duties to the full satisfaction of her superiors. The petitioner continuously worked for more than 120 days without any break as is evident from the pay slips (Annexure-C series) and as such he is entitled to be a permanent worker and all financial and other benefits permissible as per rules and regulations of the Bangladesh Biman Corporation. The petitioner passed S.S.C. examination in the 2nd Division and H.S.C. examination in the 2nd Division and graduated in the 3rd Division and as such there is no scope to hold that the petitioner had no requisite qualification to get appointment to the post of Data Entry Assistant. Inspite of demands made on several occasions the respondent nos. 2-6 did not make the petitioner’s service permanent and finding no other alternative remedy the present petitioner instituted I.R.O. Case No. 28 of 2001.

13. In Writ Petition No. 1698 of 2004 arising out of I.R.O. Case No. 31 of 2001 the petitioner Md. Zahangir Farazi along with other colleagues initially was appointed Aircraft Mechanic on causal basis for 90 days against permanent posts in the Sheet Metal Shop, Engineering Department of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from 1st June, 1996 which was extended for another 90 days on 12.08.1996 and then the petitioner was again appointed to the same post and the same place out of practical necessity and in the interest of Biman and thereafter he was appointed for the 3rd term for another 90 days on 23.11.1996 and then he was appointed for 4th term on 5.02.1997 to the same post and the same place and after expiry of 4th term he was again appointed on 14.05.1997 to the same post and since then he has been performing his duties to the full satisfaction of his superiors. The petitioner continuously worked more than 90 days without any break as it would be evident from the pay slips (Annexure-C series) and as such he is entitled to be a permanent worker and all financial and other benefits permissible as per rules and regulations of the Bangladesh Biman Corporation. The petitioner passed S.S.C. examination in Science Group in the 1st Division and H.S.C. examination in Science Group in the 2nd Division and as such there is no scope to hold that the petitioner had no requisite qualifications to get appointment to the post of Aircraft Mechanic. Inspite of repeated demands made on several occasions the respondent nos. 2-6 did not make the petitioner’s service permanent and finding no other alternative remedy the present petitioner instituted I.R.O. Case No. 31 of 2001.

14. All the Petitioners were appointed to different posts as Aircraft Mechanic (appointed on 14.07.1996). Cleaners (appointed on 1.06,1996) and Data Entry Assistant (appointed on 11.8.1996) on causal basis initially few 90 days against permanent posts in the Engineering Division of Bangladesh Biman Corporation, Zia International Airport, Dhaka with effect from different dates in 1996 which were extended for the 2nd terms for another 90 days in the same posts and the same place out of practical necessity and in the interest of Biman in terms and thereafter they were appointed for 3rd term and again 4th term to the same posts since than they have been performing their duties to the full satisfaction of their superiors. The petitioners continuously worked for more than 90 days without any break as is evident from the pay slips (Annexure-C series) till 18.04.2004 and after the judgment and decision in the I.R.O. cases on 3.03.2004 they were directed to discontinue their services. It is stated that on 18.12.2000 there was an internal transfer to Line Maintenance Department wherein they worked until 13.03.2001 and then they were again transferred to the Base Maintenance Department wherein they have been working till date. All these petitioners were paid @ Tk. 65/- per day as causal workers on causal basis and payments were made by the Engineering Department, Time Officer, Bangladesh Biman Corporation. These petitioners were appointed on the basis of the decision taken by Biman on 13.10.1996 as appeared in the office note stated in Paragraph 3 of the writ petitions and subsequently their services were extended from time to time on the basis of the decisions taken by the Authority of Biman Corporation. All these petitioners initially worked for 270 days in the first 3 terms and after a short gap for 3 days they have been continuously working till 13.10.1996 and then till date as such they are entitled to be absorbed permanently. But they were not made permanent after they have put in a period of 8 years service. The petitioners were appointed on causal basis for several terms and they have been working continuously for so many years and so many months whereby they are entitled to be appointed to the permanent posts. Where the petitioners were engaged in causal service against vacant posts the opposite party No. 1 respondent no. 2 in order to regularize those posts made advertisements in the National Dailies and thus the petitioners were deprived of their legal rights of being appointed to the permanent posts. The petitioners have been successfully performing their duties in the service of the corporation to the satisfaction of the Authorities and received testimonials from the superior officers on various occasions. They made several representations to the Higher Authorities without success. It is stated that the petitioners were initially appointment for 90 days which were extended for another 90 days and after the expiry of the 2nd term they were appointed again for 90 days for the third term and again their services were extended for indefinite period and some of the employees unintentionally broke 3 days since the petitioner was working till 18.04.2004. After filing the I.R.O. cases by the petitioners Bangladesh Biman Corporation with mala fide intention issued notice vide reference No. “নিয়োগ বিধি” dated 10.10.2001 whereby the Biman Management directed that in the case of causal workers working in different sections of Biman, attendance for more than 29 days cannot be shown. Before the issuance of the aforesaid notice dated 10.10.2001 the petitioners used to work on all days of the month and year although with mala fide intention the petitioners were not shown the days they had worked in the Biman Corporation. The petitioner in Writ Petition No. 1405 of 2004 had continuously worked for 342 days in 1997, petitioner in Writ Petition No. 1406 of 2004 had continuously worked for 347 days in 1997, petitioner in Writ Petition No. 1407 of 2004 had continuously worked for 320 days in 1997, petitioner in Writ Petition No. 1408 of 2004 had continuously worked for 328 days in 1997, petitioner in Writ Petition No. 1409 of 2004 had continuously worked for 322 days in 1997, petitioner in Writ Petition No. 1410 of 2004 had continuously worked for 312 days in 1997, petitioner in Writ Petition No. 1696 of 2004 had continuously worked for 365 days in 1997, petitioner in Writ Petition No. 1697 of 2004 had continuously worked for 306 days in 1998, petitioner in Writ Petition No. 1699 of 2004 had continuously worked for 359 days in 1998, petitioner in Writ Petition No. 1700 of 2004 had continuously worked for 365 days in 1997, petitioner in Writ Petition No. 1695 of 2004 had continuously worked for 365 days in 1997, petitioner in Writ Petition No. 1698 of 2004 had continuously worked for 365 days in 1997 which are very much evident from the Annexure-C series of the respective writ petitions. All these petitioners attended the office throughout the whole year and signed Attendant Registers but the Bangladesh Biman did not place Attendant Registers. The petitioners stated that they are all working against permanent posts in the Engineering Directorate maintenance over out Work Shop. Though all these petitioners have put in a period of service of 8 years of Biman yet they are not made permanent and they gave several representations before the higher authorities but they are unsuccessful and as such they are entitled to be made permanent under the Employment of labour (Standing Order) act, 1965 with effect from 14.07.1996 when they were initially appointed as workers and were deemed to have completed their probation period. These petitioners filed I.R.O. cases being (I.R.O. Case Nos. 22-33 of 2001) before the 3rd labour Court, Dhaka which were heard analogously by the Chairman, 3rd labour Court on the deposition of witnesses. The labour Court by judgment and decision dated 3.03.2004 dismissed the cases of the petitioners.

15. The respondent nos. 2-5 Bangladesh Biman Corporation &. others contested the case before the labour Court by filing written statements denying the allegations made in the petition stating, inter alia, that cases are not maintainable and the first part) has no cause of action. There is no rules and regulations for direct recruitment of Binun Aircraft Mechanic and Apprentice Mechanic and after completion of 2 years training in Bangladesh Air Lines Training Institute and on successful result they were given appointment as Aircraft Mechanic. Their minimum educational qualifications should be S.S.C (Science) and H.S.C. (Science) having minimum 2nd Division in both the examinations. The petitioners of I.R.O Case Nos. 22 of 2001 and 27 of 2001 have no requisite minimum qualification for appointment to the post of Aircraft Mechanic All these petitioners are not trainees of Bangladesh Air Lines Training Institute These petitioners are engaged as causal workers and no work no pay basis and no appointment was issued to them. These petitioners did not perform their duties continuously for 90 days. They used to get wages @ Tk. 65/- per day and worked for certain period with gaps from time to time and they were not made permanent as per the Bangladesh Biman Corporation Service Regulation. They are not transferred as claimed but they were placed at different places as causal workers to work and as such these petitioners are not entitled to any relief. These cases were analogously heard with other I.R.O. cases by the 3rd labour Court on the prayer of 12 petitioners and considering, all the documents showing approval of the petitioners and other parties by the impugned judgment and decisions dated 3.03.2004 dismissed the cases on contest against the 2nd party Bangladesh Biman.

16. Being aggrieved by the impugned judgment and decision dated 3.03.2004 passed by the Chairman, 3rd labour Court, Dhaka these petitioners Hasmat Ali in Writ Petition No. 1405 of 2004, Md. Abdul Kader in Writ Petition No. 1406 of 2004, B.H.M. Mohsin in Writ Petition No. 1407 of 2004, Md. Shah Alam in Writ Petition No. 1408 of 2004, Md. Abdul Matin in Writ Petition No. 1409 of 2004, Md. Maksudul Haque in Writ Petition No. 1410 of 2004, F.M. Anisur Rahman in Writ Petition No. 1696 of 2004, Md. Iktiar Farazi in Writ Petition No. 1697 of 2004, Sk. Ali Ahmed in Writ Petition No. 1699 of 2004, Md. Shafiqul Islam in Writ Petition No. 1700 of 2004, Lakhida Khanan in Writ Petition No. 1695 of 2004 and Md. Zahangir Farazi in Writ Petition No. 1698 of 2004 obtained the respective Rules in identical terms.

17. All these petitioners filed Supplementary-Affidavits stating, inter alia, that initially they were appointed against permanent posts as Aircraft Mechanics, Cleaners and Data Entry Assistants for 90 days and subsequently they were extended 4th/5th time and lastly extended until 18.04.2004. It is also stated that the petitioners, have quoted the relevant provisions in respect of Academic Qualification for the overhaul and other trades, it is stated that the issue No.4 of General Engineering Manual of Biman Bangladesh Airlines provides as follows :

Volume-1

Chapter-14

Section - 14.7

Page-5

Date 27.4.1988

14.7.7 ACADEMIC QUALIFICATION FOR GRANTING INSPECTION PERMIT IN THE OVERHAUL / WORK SHOP / SUPPORT SHOP (ALL TRADE)

i. H.S.C. (Science) or

ii. Diploma in Aircraft Maintenance Engineering or

iii. Diploma from Polytechnic Institute or

iv. Holder of Approval Permit or AME License.

Note : Individuals who are currently employed in Biman and having Matric or S.S.C as minimum educational qualifications with basic Aeronautical Course done from Korangi Greeki Pakistan may be considered for grant of Inspection Approval

18. It is further stated that after the delivery of the judgment in I.R.O. cases on 3.03.2004, the writ petitioners filed these writ petitions on 24.03.2004 and the Rules Nisi were issued upon the Bangladesh Biman Corporation on 29.03.2004 but they did not continue service from 11.04.2004. The writ petitioners’ service were not extended and no formal order was passed. Biman Recruitment Policy executed by Biman placed before labour Court in undated recent which did not apply to the writ petitioners. General Employment Manual of Bangladesh Biman Airlines would be applicable in all these cases.

19. Mr. A.K.M. Nazrul Islam, the learned Advocate appearing for the petitioners in all the Rules having placed the writ petitions with annexures and Supplementary-Affidavit, submits that the impugned judgment and decision is not sustainable inasmuch as the judgment conflicts with the provisions of Section 4(2) of the Employment of labour (Standing Order) act 1965 which provides for the period of probation for worker whose function is clerical in nature for 6 months and other such workers for 3 months including break due to leave and illegal lock up in the shop, commercial or industrial establishment providing that in the case of skilled workers the period of probation may be extended for another period of 3 months although the petitioners put in the service of 8 years and as such the impugned decision is without lawful authority and is of no legal effect. He then submits that the labour Court committed an error of law and facts apparent on the face of the record in holding that there is no scope to declare the service of the petitioners as permanent although they have put in a period of 8 years service and as such the impugned decision is without lawful authority and is of no legal effect. He then contends that impugned judgment and decision suffers from errors of law and facts apparent on the face of the record in holding that the petitioners were not appointed against permanent posts and they have never worked for 120 days continuously and as such it cannot be said that the petitioners have completed the period of probation according to Section 4 (1) and (2) of the Employment of Labor (S O.) act. 1965. He then submits that the labour Court failed to appreciate and consider the facts and circumstances of the cases and the evidence on record and consequently there is a miscarriage of justice leading to arbitrary mala fide and illegal decision and order and as such the same is passed without lawful authority. He further submits that the labour Court ought to have passed an order declaring the service of the petitioners permanent in accordance with the provisions of Section 4(2) of the Employment of Labor (S.O. act. 1965 with effect from 14.07.1996 when the petitioners were initially appointed as skilled workers. It is also submitted on behalf of the petitioners that the petitioners having put in 8 years satisfactory service have reasonable expectation of being absorbed in the service and. in all fairness, they should have been absorbed permanently in their service. He finally submits that the labour Court misconstrued the unreported decision of a Division Bench of this Hon’ble Court in Writ Petition No. 2476 of 1999 as being not applicable in the present cases though there are observations that the first party of the present cases are causal workers but other facts are totally different and thereby misconstrued the decision of the Appellate Division and as such the impugned decision is without lawful authority and is of no legal effect. In support of his contention Mr. A.K.M. Nazrul Islam has referred to the case of Managing Director, Rupali Bank Ltd. Vs. Md. Nazrul Islam Patwary & others reported in 48 DLR (AD)62, the case of Managing Director, Rupali Bank Ltd. Vs. Chairman, 1st labour Court & others reported 46 DLR(HC) 143.

20. Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing for the respondents Bangladesh Biman Corporation has placed the Affidavit-in-Opposition on behalf of the respondent nos.2-5 and submits that the petitioners were employed as causal workers on purely causal and temporary and “no work no pay basis” and they did not perform continuously for 90 days with a gap from time to time and they were paid wages @ Tk. 65/- per day on the basis of ‘‘No work no pay" system without any scale of pay and other facilities of the Bangladesh Biman Corporation. He then submits that the petitioners never were engaged in permanent or regular posts and as such they are not entitled to become permanent and the Rule is liable to be discharged. He then referred to the internal notes of approval of Biman for most temporary and causal engagement as contained in paragraph 3 of the writ petition which shows that the approval was given for causal engagement of the petitioners at wages @ Tk. 65/- per day, therefore, Section 4 of the Employment of labour (S.O.) act, 1965 has no manner of application in the instant cases. He submits that the petitioners have no right to be permanent in view of the record of the office note of Bangladesh Biman Airlines. In support of his contention he has referred to the case of Al-haj Abul Basher Vs. Bangladesh and others reported in 50 DLR (AD)11. He then submits that the petitioners were engaged as causal workers on the basis of “No work no pay” and since they are not appointed against permanent posts their service cannot be governed under section 4 of the Employment of Labor(S.O.) act 1965. He has asserted that since the petitioners employed as causal workers they did not have any requisite qualifications and they are simply causal workers whereas for the appointment of overhaul mechanic under the recruitment rules they are not entitled to be permanent in the aforesaid posts. He also submits that there is no rules and regulations for direct appointment of Aircraft Mechanic. He submits that the impugned judgment and decision passed by the labour Court are not in conformity since the petitioners worked as causal workers of daily wages “No work no pay” basis and they never worked continuously for 90 days. He also submits that the petitioners have no legitimate expectation to be appointed under the Bangladesh Biman Corporation as because they are not appointed against permanent posts and no such assurance was given to them by the respondent authority and as such the plea of legitimate expectation cannot be sustained. He refers in the case of The Chairman, Bangladesh Textile Mills Corporation Vs. Nasir Ahmed Chowdhury and others reported in 22 BLD(AD)199. He finally submits that the jurisdiction of the High Court Division in exercise of jurisdiction in nature of certiorari is not so wide as to enable the High Court Division to convert itself into a court of appeal and examine itself materials to come to a new finding and substantiate findings of the Tribunal and as such in the instant case this Court cannot examine any materials to come to new finding and to substantiate the findings of the Tribunal. In support of his contention he has cited the case of Bangladesh Tobacco Company Limited and another Vs. Md. Azizul Huq and another reported in 22 BLD(AD)184. He finally submits that since all the petitioners were engaged as casual workers on the basis of “No work no pay” and no assurance was given by the authority to absorb them permanently, the unreported decision of this Court in Writ Petition No. 2476 of 1999 is quite distinguishable from the facts and circumstances of the present cases and the labour Court having considered the aforesaid judgment and decision rightly decided the present case and as such there is no scope to interfere by this Court and the Rule is liable to be discharged.

21. In Writ Petition Nos. 1696 of 2004. 1697 of 2004, 1699 of 2004 and 1700 of 2004 Mr. Abul Kalam Mainuddin, the learned Advocate has appeared on behalf of the petitioners and submits that in all the writ petitions the petitioners were appointed in their respective posts initially for a period of 90 days on causal basis and thereafter on several periods their appointments were extended for 90 days and ultimately till the discontinues of their service on 18.04.2004. They worked for more than 8 years without any interruption and that the petitioners have acquired qualifications and they worked in their respective posts for more than 90 days in Bangladesh Biman Corporation continuously without any break and according to section 4(1) and 4(2) of Employment of labour (Standing Orders) act, 1965 the petitioners are entitled to be permanent worker but the respondent no. 1 labour Court without considering the petitioners contentions as evident from pay slips and other documents and without considering individual cases of the petitioners made general statements that “Besides most of them had no requisite qualification to get appointment to the post of Aircraft Mechanic thereby failed to consider the materials on record which is very much apparent in the face of the record and as such the impugned decision and order in respect of these petitioners is liable, to be declared without lawful authority and is of no legal effect. He then submits that the petitioners in Writ Petition No. 1696 of 2004 (Aircraft) and No. 1700 of 2004 (Aircraft) have requisite qualifications as evidenced from the official note and the petitioners of Writ Petition No. 1699 of 2004 (cleaner) and No. 1700 of 2004 (cleaner) being cleaners also have requisite qualifications and accordingly the Authority approved the appointment with full satisfaction and at this stage it cannot be said that there is no requisite qualifications for the aforesaid posts when they have worked for more than 8 years continuously. He further submits that the respondent no. 1 wrongly found that the petitioners were not appointed on causal basis against permanent posts as is evident from Annexure-B series. He then submits that the pay slips (Annexure-C series) of the petitioners show continuous service for more than 120 days and as such the finding of the respondent no. 1 labour Court to the effect that the petitioners have not served for more than 90 days is not correct and as such there is an error apparent on the face of the order which is liable to be declared to have been passed without any lawful authority and to be of no legal effect. He finally submits that all the petitioners have requisite qualifications and also gained enough experience in the Bangladesh Biman and have legitimate expectations to be observed in the service of the Biman Corporation. The authority having been satisfied extended their service from time to time since 14.05.1997 continuously without any break and they have legitimate expectation that their services will be observed permanently and as such the Rule is liable to be made absolute.

22. In Writ Petition Nos. 1695 of 2004 and 1698 of 2004 Mr. Garib Newaz, the learned Advocate on behalf of the petitioners has adopted the submissions made by the learned Advocate Mr. A.K.M. Nazrul Islam and further submits that the petitioner Lakhida Khanam in Writ Petition No. 1695 of 2004 has requisite qualifications as per requirement of Bangladesh Biman as evident from the advertisement Annexure-D(3). Though initially she was appointed on causal basis for 90 days as Data Entry Assistant, Central Engineering Department of Bangladesh Biman Corporation at Zia International Airport with effect from 11.08.1996 and thereafter her service was extended on different terms of 90 days and finally she was appointed on 21.04.1999 to the same post and since then she has been performing her duties to the full satisfaction of the Biman Authority and wages were paid to her as evidenced by the pay slips Annexure-C series. He then submits that as per office note advertisement Annexure-D(3). Considering her requisite qualifications the Biman Authority appointed her on causal basis and accordingly the tenure of appointment was extended for different terms and as such it does not lie in the mouth of the Biman that she does not have requisite qualifications whereas she has been continuously working for about 8 years. He then submits that the conduct of the Biman is malafide since she was working as Data Entry Assistant without having any permanent job in the Bangladesh Biman with requisite qualifications of H.S.C. and S.S.C. in 2nd Division. The Bangladesh Biman published an advertisement inviting applications for the post of Data Entry Assistant but she has not been absorbed though she has got requisite qualifications. In that view of the matter impugned decision and order to the effect that the petitioner did not have any requisite qualification has no legal basis and as such the Rule is liable to be made absolute. Mr. Garib Newaz the learned Advocate for the petitioner in writ petition nos. 1695 of 2004 and 1698 of 2004 submits that the petitioners having requisite qualifications were appointed on causal basis as Aircraft Mechanic against permanent posts for 90 days and thereafter his tenure of service was extended time to time and finally on 14.05.1997 the service of the petitioners along with others were extended until permanent posting was made in the respective posts as evident from Annexure-B at page 42 of the writ petition. He finally submits that all these petitioners having requisite qualifications and gathered experience in their respective posts worked to the satisfaction of the Bangladesh Biman Authority without having any adverse remark and finally on 14.07.1997 their service tenure was extended for unlimited period against permanent posts and thereby a legitimate expectation has arisen in their minds that that they would be appointed to the permanent post but the Biman discontinued the service with effect from 18.04.2004 and the respondent no. 1 without considering the material evidence on record and the respective cases of the petitioners made vague statements that they did not have requisite qualification and experience and as such there is an error on the face of record and the impugned decision and order is liable to be declared to be made without lawful authority and the Rule is liable to be made absolute.

23. Out of these 12 writ petitioners 9 are Aircraft Mechanics who were appointed initially and the petitioner in Writ Petition No. 1695 of 2004 was appointed as Data Entry Assistant and Petitioners in Writ Petition Nos. 1697 and 1699 of 2004 were appointed as Cleaners.

24. We have perused the Writ Petitions, Supplementary-Affidavits, Affidavits-in- Reply and Affidavits-in-Opposition filed by the respondent nos. 2 to 6. It appears that the petitioners in Writ Petition Nos. 1405 to 1410 of 2004, 1696, 1698 and 1700 of 2004 were initially appointed on ad-hoc basis as Aircraft Mechanics against permanent posts initially for 90 days and subsequently their services were extended for different terms of 90 days and finally they were appointed on 12.04.1997 and the service of the petitioners were extended till the appointment against the permanent posts were filled up. The petitioners in Writ Petition Nos. 1696, 1699 and 1700 of 2004 were appointed on 14.05.1997 on causal basis for the period till appointment against permanent posts were filled up. The petitioners in Writ Petition Nos. 1697 of 2004 and 1699 of 2004 were appointed finally on 14.05.1997 on causal basis for the period till appointment against permanent posts were made. The petitioner in Writ Petition No. 1695 of 2004 was finally appointed on 26.02.1998 and she was transferred from the Central Engineering Division to the Engineering Planning Division on causal basis as Data Entry Assistant against permanent post since she has been working in the Engineering Planning Division. On a careful perusal of the decision and order dated 03.03.2004 passed by the respondent no. 1, Third labour Court, Dhaka it appears that all the I.R.O. cases of these petitioners were dismissed on the following grounds:

(1) The petitioners were not appointed against permanent posts.

(2) They never worked 120 days continuously.

(3) They were not appointed in the respective posts against permanent vacancy on causal basis.

(4) The petitioners have no requisite qualifications and there is no provision for direct recruitment as Aircraft Mechanic of Bangladesh Biman.

25. We have gone through the writ petitions, Affidavits-in-Opposition and Supplementary-Affidavits with annexures and the impugned order and decision. On perusal of the internal note sheets of Biman Corporation it appears that all these petitioners were appointed on causal basis initially for a period of 90 days against permanent posts- and subsequently their services were extended time to time for 90 days without any gap. From note sheets of the Biman Corporation it appears that the names of the petitioners were mentioned for recruitment by the Higher Authority for appointment as Aircraft Mechanics. Fourteen persons having requisite qualifications H.S.C. (Science) were appointed in the respective posts. After having considered their qualifications suitable for the posts they were recruited for appointment on causal basis with daily wages @ Tk. 65/-. It also appears from the note sheets and the Memo, dated 18.03.1997 that the Authority was very much satisfied with the performance of the petitioners and extended their services for indefinite periods till final appointment will be made against the permanent posts. Mr. Abdul Wadud Bhuiyan the learned Advocate, for the respondents submits that the petitioners did not have requisite qualifications and accordingly respondent no. 1, labour Court rightly decided that they are not the suitable candidates for the posts. We do not find any substance in this submission because in the note sheets the respondent-Biman Authority stated that these petitioners having passed S.S.C. and H.S.C. (Science) examinations are suitable candidates for the posts of Aircraft Mechanics. As regards Cleaner they also have requisite qualifications H.S.C.(Science) as reflected in the office note. We also find that in Writ Petition No.7695 of 2004 that the qualification of the petitioner as Data Entry Assistant is S.S.C. and H.S.C. passed in the 2nd Division without any 3rd Division. From the Annexure-D(3) in Writ Petition No. 1695 of 2004 the advertisement published by the Biman Authority and also from the note sheet it appears that the Authority wanted H.S.C. in the 2nd Division as the requisite qualification for appointment as Data Entry Assistant. But Mr. Bhuiyan has contended that Bangladesh Biman Airlines Recruitment Rules prescribe different qualifications for different posts and these petitioners have no requisite qualifications as per recruitment Rules. When we have asked Mr. Bhuiyan, the learned Advocate for the respondent nos. 2-6 to supply the Recruitment Rules he has submitted a photocopy of a document said to have been the “নিয়োগ বিধি” which was marked as Annexure-I to the Supplementary-Affidavit filed on behalf of the respondent Nos. 2-5. We have gone through the said photocopy of the documents and find it difficult to understand who framed the so-called “নিয়োগ বিধি” and how the order was granted by the authority In reply to our query Mr. Shamsur Rahman the learned Advocate for the respondent-Biman has placed before us some documents said to have been the Recruitment Rules. We have gone through these papers and found that there is no date of framing the “নিয়োগ বিধি” nor the name of the authority who framed the “নিয়োগ বিধি”. These are some loose papers which cannot be recognized as “নিয়োগ বিধি”

26. In the Supplementary-Affidavit the petitioners denied the authenticity of the Recruitment Rules and stated that there was no basis of these “নিয়োগ বিধি” It has not been framed by any competent authority nor published in the official Gazette. The respondents failed to give the date when it came into effect In the Affidavit-in-Reply filed on behalf of the respondent nos. 2-6 it has been stated that the so-called “নিয়োগ বিধি” was duly framed by the competent Authority of the Bangladesh Biman Corporation. But we find contradictory provisions in the so-called “নিয়োগ বিধি” and the note of advertisement published by the Bangladesh Biman in respect Of recruitments. Facts remain, all the petitioners were initially appointed on causal basis in the respective posts against the permanent vacancies initially for a period of 90 days and thereafter their service periods were extended for different periods from time to time for 90 days and finally their services were extended till the filling up of the permanent posts by regular appointments and thereby these petitioners were appointed in their respective posts for 90 days in between terms and finally till the time when their extensions were refused on 18.04.2004 though all of them served continuously. From Annexure-C series it appears that petitioner Hasmat Ali in Writ petition No. 1405 of 2004 continuously served in total 153 days from May 1997 to September 1997 without any gap. Similarly Md. Abdul Kader in Writ petition No. 1406 of 2004 continuously served in total 184 days from May 1997 to October 1997 without any gap. Similarly B.H.M. Mohin in Writ petition No. 1407 of 2004 continuously served in total 122 days from June 1997 to September 1997 without any gap. Similarly Md. Shah Alam in Writ petition No. 1408 of 2004 continuously served in total 122 days from June 1997 to September 1997 without any gap. Md. Abdul Matin in Writ petition No. 1409 of 2004 continuously served in total 153 days from May 1997 to September 1997 without any gap. Md. Maksudul Haque in Writ petition No. 1410 of 2004 continuously served in total 122 days from June 1997 to September 1997 without any gap. F.M. Anisur Rahman in Writ petition No. 1696 of 2004 continuously served in total 911 days from September 1996 to February 1999 without any gap Md. Iktiar Farazi in Writ petition No. 1697 of 2004 continuously served in total 365 days from March 1998 to February 1999 without any gap. Sk. Ali Ahmed in Writ petition No. 1699 of 2004 continuously served in total 490 days from August 1997 to February 1999 without any gap. Md. Shafiqul Islam in Writ petition No. 1700 of 2004 continuously served in total 637 days from September 1996 to May 1998 without any gap. Md. Zahangir Farazi in Writ petition No. 1698 of 2004 continuously served from 01.09.1996 to 31.10.1998 in total 791 days without any gap. Lakhida Khanam in Writ petition No. 1695 of 2004 continuously served in total 789 days from January 1997 to February 1999 without any gap. From the materials on record it appears that all these petitioners continuously worked for more than 90 days on many times and finally they were appointed as workers for an unlimited period till the final vacancies be filled up and all of them served the Bangladesh Biman for about 8 years. It also appears from the office note that the Bangladesh Biman was very much satisfied with the work of the petitioners and they have also noted it with approval the performance of the petitioners as competent workers in their respective posts for their appointments and extension till the final vacancies would be filled up and thereby the petitioners were given the understanding to be made permanent in the respective posts. It also appears from the record that there is no adverse remark in their service records rather the authority for their satisfactory service records, finally extended their service till the vacancies be filled up - with permanent appointments and the Authority recognized them as the competent workers in the respective posts. Thus it appears that the petitioners have worked continuously for more than 90 days without any gap according to the provisions of section 4(1) and 4(2) of the Employment of labour (S.O.) act 1965 and the petitioners are entitled to get appointment as permanent workers. Sub-Sections (1) and (2) of Section 4 of the Employment of Labor (S.O.) act, 1965 read as follows:-

“Classification of workers and period of probation.-(1) A worker employed in any shop or commercial or industrial establishment shall be classified in any of the following cases according to the nature and condition of work and in the manner provided in this Act-

(a) apprentices.

(b) badlis.

(c) casual.

(d) permanent.

(e) probationer and

(f) temporary.

(2) The period of probation for a worker whose function is of clerical nature, shall be six months and for other workers such period shall be three months, including breaks due to leave, illegal lock-out or strike(not being an illegal strike) in the shop or commercial or industrial establishment:

27. Provided that in the case of a skilled worker, the period of probation may be extended by an additional period of three months if, for any circumstances, it has not been possible to determine the quality of his work within three months’ period of his probation.”

28. According to Sub-sections (1) and (2) of Section 4 a worker employed in any shop or commercial or industrial establishment shall be classified in any of the following classes according to the nature and condition of work and in the manner provided in this Act-

(a) apprentices.

(b) badlis.

(c) casual.

(d) permanent.

(e) probationer and

(f) temporary.

29. Sub-section (2) of Section 4 provides that the period of probation for a worker whose function is of clerical in nature, shall be six months and for other workers such period shall be three months, including breaks due to leave, illegal lock-out or strike (not being an illegal strike) in the shop or commercial or industrial establishment:

30. Proviso to the said Sub-section (2) contemplates that in the case of a skilled worker, the period of probation may be extended by an additional period of three months if, for any circumstance, it has not been possible to determine the quality of his work within three months’ period of his probation.

31. In the instant case it appears that all the petitioners initially were appointed as causal workers in their respective posts against the permanent posts initially for 90 days and thereafter for some terms till the filling up of the permanent posts. We have already noticed that all the workers served some years continuously without any gap and the respondent no. 1 failed to consider this aspect of the matter. It also appears that respondent no. 1 labour Court without considering the respective cases of the petitioners and the documents produced before it passed the impugned decision and order finding that petitioners did not continuously work, which is not correct. We have already noticed that all the petitioners worked for more than 90 days. Being the workers of Bangladesh Biman Corporation these petitioners completed their probationer periods under Sub-section (2) of Section 4 of the aforesaid act of 1965 and thereby these petitioners have become entitled to be appointed permanently in the respective vacant posts. It has been contended by the respondent nos.2-5 that these appointments were on causal basis i.e. no work no pay and they did not perform their work continuously and they are not entitled to be appointed permanently. We have found from the note sheets that all the petitioners worked in the permanent posts as appears in Annexure-D series. It also appears that these petitioners were appointed as against permanent posts and in the case of Secretary, Internal Resources Division, Ministry of Finance and Chairman, NBR, Dhaka Vs. Nasrin Banu & ors reported in 48 DLR (AD)171, it has been held that “Interministerial / Divisional communications made in the process of reaching a decision, uncommunicated to the affected persons, do not create a legal right in their favor.” But the facts and circumstances of these two decisions are distinguishable from the facts and circumstances of the present case. The petitioners’ cases is that the official note of the Bangladesh Biman recommended the names of the candidates whose qualifications and experience were recognized by the Biman Authority and accordingly the Authority approved their appointments and these were communicated to them. On the basis of internal notes they were appointed as causal workers against the permanent posts.

32. It has been contended on behalf of the respondents that by the internal note sheets no right has accrued to the petitioners to collect the note sheets. On this point Mr. Bhuiyan the learned Advocate for the respondent Nos. 2-6 has relied on the decision in the case of Al-haj Abul Basher & others Vs. Bangladesh and others reported in 50 DLR(AD)11, where it has been held that “inter Ministerial Communications are merely policy guidelines in respect of certain matters concerning the business of the Government. These do not create any legal right in favor of any person to ask for return of unutilized land validly acquired under the law.”

33. In the case of Secretary, Internal Resources Division, Ministry of Finance and Chairman, NBR, Dhaka Vs. Nasrin Banu & ors reported in 48 DLR (AD)171 Mr. Justice Mustafa Kamal as he then was observed that " having left the issue of surplus public servants undecided, the High Court Division made a revoking and rambling journey through Annexures E, F and G to give not only the writ petitioners but also the ‘concerned employees’ a relief on some reasoning which do not seem to have been canvassed by the writ petitioners themselves. The learned Additional Attorney General submits that Annexures E, F and G are Interministerial / Divisional communications. The various Ministries/Divisions were thinking aloud, within themselves as to what to do with the erstwhile employees of the Tribunals. None of these Annexures were communicated to the writ petitioners. No specific decision was taken by the appellant Ministry in favor of the respondents after these correspondences ended. No legal right can be founded on these interministerial/divisional communications. He has cited the observation of the Appellate Division in the decision of the case of Bangladesh Vs. Dhaka Steel Works Ltd. 45 DLR (AD) 69, paragraph 83 which is as follows:

83.We must however sustain the further contention of the learned Additional Attorney General that the Government’s notings dated 20.01.1976 and 28.01.1976 as furnished in Annexure-Y to the writ petition, are not enforceable, because those were internal exercises of the Government and were never communicated to the respondents. No legal right can be founded on those nothings. The respondents are not also supposed to obtain a copy thereof Consequently we are unable to uphold that part of the order of the High Court Division which directs the appellants to implement the order dated 20.01.1976 and 28.01.76 and to release the property of the respondents “in terms of the said order

34. Mr. Amirul Islam made no specific submission to counter the above submission of the learned Additional Attorney General and we hold, consistent to what we held before, that interministerial/divisional communications made in the process of reaching a decision, uncommunicated to the affected persons, do not create a legal right in their favor. The affected persons are not supposed to get even copies of them. But if the contents thereof are not denied by the respondents the Court can draw such conclusions therefrom as it thinks fit in the facts and circumstances of each case.”

35. From the aforesaid observations of the Appellate Division it appears that the Appellate Division have observed that interministerial communication cannot create any legal right. Herein the affected person is not entitled to get any relief if the contents of the document is not communicated to the respondents. The Court can draw any conclusion as it think fit in the facts and circumstances of each case if the such contention is not denied by the respondent- Biman. So whether any right is accrued to any person on the basis of internal official note depends on the facts and circumstances of each case. In the instant case before us the official notes of Bangladesh Biman Airlines Corporation were issued in connection with the petitioners. Accordingly they were appointed on a causal basis, in other words, the respondent Biman Authority gave effect to the internal communication in the official notes of Biman and accordingly petitioners were also appointed on causal basis against the permanent posts. So the facts and circumstances in these two reported decisions are distinguishable from the facts and circumstances of the present cases before us. The respondent-Biman Corporation has given effect to the internal communication in the form of official notes. They connected the petitioners and accordingly the said internal communication was acted upon by both the parties i.e. the petitioners were appointed by Bangladesh Biman initially for 90 days and the petitioners joined there and subsequently their services were extended from time to time and finally till the filling up of the permanent posts and thus they worked for more than 8 years on the basis of internal communication. The respondent no. 1 labour Court passed the decision without applying its judicial mind in the facts and circumstances of the case. We have initially gone through the judgment of the petitioners and subsequently we called for the case records of Writ Petition No. 2476 of 1999 and perused the case records. In the said case the petitioner was appointed on a causal basis for 90 days and subsequently the period of service was extended from time to time continuously and they were appointed till the filling up of the permanent posts. Though respondent no. 1 found that both the petitioners of Writ Petition No. 2476 of 1999 and the present petitioners before us are causal workers but he wrongly found that “but other facts are totally different” but respondent no. 1 failed to state which are the other facts being totally different and what are the facts of the present case. “We are of the view that these cases are quite similar, so we find that the respondent no. 1 wrongly distinguished the unreported decision cited, relied on and referred to by the petitioners. We are of the view that the facts and circumstances of writ petition no. 2476 of 1999 is similar with that of the present cases. We are not satisfied as to the authenticity of “নিয়োগ বিধি” and the respondent No. 2 failed to satisfy the court as to the authenticity of “নিয়োগ বিধি” even they failed to show who, when and how the same was framed and given into effect. We find substance in the submission of the learned Advocates for the petitioners to this effect. We have accepted the submissions advanced on behalf of the petitioners and the unreported decision in Writ Petition No. 2476 of 1999 and are of the view that once a causal worker is appointed against a permanent post in a shop or commercial or industrial establishment for a period of 90 days and subsequently that period was extended for some more terms of 90 days and the workers continuously worked without any gap for more than 90 days for years together on causal basis for more than 90 days or even a longer period as in the present case till the permanent posts are filled up, these workers called causal workers have completed the status of a probationer against permanent posts. In that view of the matter we hold that these petitioners having served Biman Airlines in their respective positions and posts continuously for more than 90 days and they have continuously served for more than 8 years and thereby they have served the period of probation under section 4(2) of the Employment of labour (S.O.) act 1965 and they have become entitled to be absorbed in the permanent posts. We also find substance in the submissions of the learned Advocates for the petitioners that respondents with a mala fide intention extended the period of service of the petitioners with 2/3 days gap in a year because all the petitioners continuously served for more than 90 days and finally before the refusal of extension of their service on 18.04.2004 all the petitioners continuously worked for more than a few years without any gap. In the case of Bangladesh Film Development Corporation Vs. Chairman, 1st labour Court, Dhaka and others reported in 49 DLR(HCD)396. it has been held that a service regulation, even if a statutory one cannot exclude or supersede the Employment of Labor (S.O.) act. The FDC may have its own Service Regulations but it cannot be beyond the ambit of Employment of Labor (S.O.) act. If any provision of the Service Regulations of the FDC is less favorable to the express provision of the Standing Orders act that provision, is void ab initio.

36. In the aforesaid decision reported 49 DLR(HCD)396 at page 399 it has been observed that “the probationary period referred to here is the statutory probationary period. Therefore the parties concerned have to make their decision, whatever may be, within the period provided in section 4(2) of Standing Orders act and not after that. The period of probation is for a particular period provided in the Standing Orders act and cannot be extended unless in cases allowed by the Standing Orders act. In the instant case the decision has been made one year, one month and twenty-two days after the appointment. According to Mr. Hannan, there is nothing wrong in it as the Service Regulations of the ‘FDC being applicable has been followed and the service of the respondent No. 2 has been dispensed with within the probationary period provided in the said Service Regulations. This submission is, however, not acceptable to us. The FDC may have its own Service Regulations but it cannot be beyond the ambit of the Employment of Labor (S.O.) act. A service Regulations even if a statutory one cannot exclude or supersede the Employment of Labor (S.O.) act. Therefore, if any provision of the Service Regulations of the FDC is less favorable to the express provision of the Standing Orders act that provision, in our view, is void ab initio.”

37. We are in respectful agreement with the aforesaid decision and relying with the said decision we are of the view that in the instant case the provisions of Section 4(2) of the Employment of Labor (S.O.) act 1965 can exclude the less favorable provision of the so-called “নিয়োগ বিধি” of Bangladesh Biman if it is legally in existence.

38. In the instant case before us the petitioners have requisite qualification as per Bangladesh Biman office note and also in the advertisement in respect of Data Entry Assistant Annexure-D(3). But the contention of the respondent Nos.2-6 that the petitioners have no requisite qualifications as per “নিয়োগ বিধি"has no legal basis. W’e have discussed at length that the respondent-Biman failed to shoe when, how and by whom the so-called “নিয়োগ বিধি” has been framed and published. Conceding for argument’s sake even if the Bangladesh Biman has a Recruitment Rules with different provisions that will not supersede the provisions of Section 4(2) of the act of 1965. This “নিয়োগ বিধি” in no way shall take preference over Section 4 of the act since the section 4(2) provides that the period of probation for a worker whose function is of clerical nature, shall be six months and for other workers such period shall be three months. In this context we also refers to the decision of the case of Azizul Huq (Md.) Vs. Chairman, labour Court, Khulna & others reported in 48 DLR(HC)527 where it has been held that “Labour Court has been set up to do justice to the worker-complainants and not to throw out the cases filed by the workers on technical grounds. The labour Court having found the order of dismissal of the petitioner not tenable in law had no option but to do justice to the petitioner.” In this reported case the Court referred to Section 25(1)(d) of the Employment of Labor (S.O.) act, 1965 which reads as follows:

(d) in deciding the matter the Court may pass such order including orders regarding cost, as it may deem just and proper and it may, in appropriate cases, require, by such order, reinstatement of complainant thereof and such order shall be final.

Provided that any complaint under this section shall not amount to prosecution under section 27 of this act;

39. It has been observed in the aforesaid decision reported in 48 DLR (HC)527 para-5 in the following terms: “From the above it appears that labour Court is competent to pass an appropriate order deciding the case on receipt of a complaint under clause (b) of section 25 of the act, after notice and hearing of the parties. Thus it is clear that labour Court’s power is not restricted to the grant of relief of reinstatement only. It can pass any order deemed just and proper in the facts and circumstances of the case. labour Court has been set up to do justice to the worker complainants and not to throw out the cases filed by the workers on technical grounds. The labour Court having found the order of dismissal of the petitioner not tenable in law had no option but to do justice to the petitioner.”

40. In the reported case having considered the prayer portion of the petition of complaint the labour Court observed (48 DLR (HC)527 para-7) ‘Though above reliefs prayed in the above manner have been couched in a declaratory form in essence the prayer was for reinstatement of the petitioner in service with full back wages as would appear from prayer (b) for declaring him still in service. A court or tribunal is constituted to do justice to the parties and Hot to throw away a case on technical ground. We are shocked to see that the chairman of the labour Court who is an experienced and senior judicial officer failed to do justice to the petitioner though he found the order of dismissal of the petitioner not tenable in law. labour Court acted illegally in refusing the real relief sought by the petitioner for reinstatement in service with back wages though couched in a different language. Defective drafting of the petition of complaint filed before the labour Court which is a tribunal for giving relief to the workers, most of whom are illiterate persons, should not stand in the way of giving relief to a worker when his complaint is found correct by the labour Court.”

41. Having considered the aforesaid decision reported in 48 DLR(HC)527 we are of the view that labour Court should have individually and separately considered the respective cases of the petitioners without making any lump observation that petitioners not having any requisite qualification nor serving 120 days continuously have not come within the provision of Section 4(2) of the act of 1965. We have already noticed that all the petitioners continuously worked for more than 90 days as per requirement of section 4(2) of the act, 1965 and has in fact continuously worked for 7/8 years. In other words we find that all of them served a period which is more than a few years. So we are of the view that impugned decision and order has not been passed in accordance with law which requires interference by this Hon’ble Court. The respondent no. 1 labour Court with all fairness should have considered the material evidence submitted on behalf of the petitioners before coming to a decision. For the aforesaid reasons we find that there are errors apparent on the face of the record and that, the respondent No. 1 labour Court misread the evidence and in that view of the matter we find merit in these Rules.

42. In the result, all these Rules are made absolute without any order as to costs and the impugned decisions and orders are declared to have been passed without any lawful authority and to be of no legal effect.

43. The respondents are directed to recognize the services of the petitioners as permanent in the respective posts and places they had worked since the date of joining in the respective posts but the petitioners are not entitled to get arrear wages as these periods will be treated as leave without wages. Communicate copies of the judgment at once to the concerned authorities.