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Md. Shamsul Alam Vs. Bangladesh and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 1208, 1386, 1907, 9102, 9251 and 9541 of 2010

Decided On: 11.08.2011

Appellants: Md. Shamsul Alam Vs. Respondent: Bangladesh and Ors.

Hon’ble Judges/Coram: Farah Mahbub and Farid Ahmed, JJ.

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

For Respondents/Defendant: Mohammad Mehedi Hasan Chowdhury, A.K. Robiul Hassan, M.R. Surojiz Bhatta Charjee, Tufailur Rahman and Umme Salma, Advocates

JUDGMENT

Farah Mahbub, J.

  1. Since common question of law and facts are involved in all these Rules and as such those have been heard together and are being disposed of by this single judgment.

  2. In all these Rules Nisi the petitioners have challenged the respective impugned memo No. 7588/2 dated 01.02.2010 (Annexure-A) issued by the Deputy General Manager of the respective companies stating, inter-alia, that the petitioners would retire from their respective service on attaining the age of 57 years should not be declared to have been passed without any lawful authority and hence, of no legal effect.

  3. In view of the statements so made in the respective writ petitions it has been contended that since the petitioners were performing duties under Bangladesh Petroleum Corporation as such the terms and conditions of their service were governed by the Public Corporation (Management Coordination) Ordinance, 1986 (in short, the Ordinance). Moreover, since the petitioners were permanent workers as defined under section 2(e) of the Ordinance, 1986 as such vide section 14A of the said Ordinance, 1986 they were to retire on attaining the age of 60 (sixty) years. Section 14A of the Ordinance runs as follows-

“14-A. Retirement of worker, etc- (1) A worker of an enterprise shall, notwithstanding anything contained in the terms and conditions of his employment in any contract, rule, regulation, by-law or other instrument, retire from employment on the completion of the sixtieth year of his age provided that a worker who has completed the sixtieth year of his age on or before the date of commencement of the Public Corporations (Management Co-ordination (Amendment) Act, 1994(Act No. XVII of 1995) shall cease to be in the employment of the enterprise on such commencement.”

  1. Despite the said legal position the Deputy General Manager of the Company/Corporation in violation the said provision vide Code No. 7588/2 dated 01.02.2010 stated, inter-alia, on behalf of respondent no. 3 that the petitioners would retire from their respective service on the date of attaining their age of 57 years. Whereas, in view of section 33 of the Ordinance, 1986 the provisions as contained therein shall have overriding effect over any contract, rule, regulation, by-law or other legal instruction. As such, section 14-A of the Ordinance shall prevail over section 28 of Bangladesh Labour Law, 2006. Further, it has been contended that Ordinance, 1986 having not been repealed or amended hence, section 14-A of the said Ordinance is still in force.

  2. It has also been contended that earlier the respondent No. 4 had retired many workers after completion of 60 (sixty) years of age with double gratuity benefit whereas the petitioners who were standing at par had been retired at the age of 57 (fifty seven) years. Being aggrieved by and dissatisfied with they had preferred the instant applications and obtained the respective Rules Nisi.

  3. Respondent No. 3 entered appearance by filing affidavit-in-opposition contending, inter-alia, that this respondent is a public limited company and was acting as per the Rules and Regulations of the Company itself. Hence, the Public Corporation (Management Co-ordination) Ordinance, 1986 would not be applicable in case of the said respondent. Further, the said Ordinance had not been included in the schedule of the Company’s own Service Rules. Thus, question of applicability of section 14-A of the said Ordinance did not arise in the present case. Moreover, the relationship between the respondent No. 3 and the petitioners being master and servant, therefore, the remedy lies before other forum, not under writ jurisdiction.

  4. Mr. Mahbubul Hoque, the learned Advocate appearing for the petitioners in all the writ petitions submits that as per section 3 of the Public Corporation (Management Coordination) Ordinance, 1986 any Ordinance and Regulations so made thereunder shall have effect notwithstanding anything inconsistent therewith is contained in any other law for the time being in force. As such, section 14-A shall prevail over the provision of section 28 of Bangladesh Labour Law, 2006. Accordingly, in view of section 14-A of the Ordinance, 1986 the petitioners should have been retired at the age of 60 years, in addition another 2 (two) years, for being freedom fighters, but the respondent No. 4 by issuing the impugned Memo had retired the petitioners from their respective service on attaining the age of 57 years. Thus, had acted illegally and without lawful authority. He further submits that the order of retirement of the petitioners were discriminatory hence, violative of Articles 27 and 29 of the Constitutions, for, the respondent No. 3 had retired other workers of the same department after completion of 60 years of age.

  5. Mr. Mohammad Mehedi Hasan Chowdhury, the learned Advocate appearing on behalf of the respondent No. 3 submits that the said respondent is a public limited company incorporated under the Companies Act, 1994 and is governed as per its own Memorandum and Articles of Association. He further submits that the terms and conditions of service of its employees are governed in accordance with the Rules framed by the Company hence, these Rules are not maintainable.

  6. Countering the said submission Mr. Hoque goes to submit that though respondent No. 3 is a limited company but it is an unit under the Bangladesh Petroleum Corporation and is controlled and managed by the Corporation, for, the Chairman, the Managing Director and other Directors are appointed by the Corporation as per Article 130 of the Memorandum of Association of the Company; the Board of Directors of the Company is constituted by the Corporation with government officials; the Chairman of the Corporation is the ex-officio Chairman of the Board of Directors and the Managing Director of the Company is the ex-officio Director of the Company, as is evident from the list of Board Directors of 2008-2009 published in the 31st Annual General Meeting held on 31st May, 2010 (Annexure-C). He further submits that even in any financial matter the approval of the Corporation is necessary as evidenced from memo Nos.সূত্র নং-বিপিসি /প্রশাসন /০৯.৪১/১৩২ andসূত্র নং-বিপিসি /প্রশাসন /০৯.৪১/৩২০ dated 07.10.2008. Moreover, he submits that on 21.03.2011 an advertisement was published in the “Daily Azadi”, also in the “Daily Kalerkantha” on 23.03.2011 for appointment of the officers of the Company, wherefrom it is evident that Meghna Petroleum Limited is an unit of Bangladesh Petroleum Corporation (BPC) (Annexure-D) and that 70% shares of the company belonged to the BPC. Lastly, he contends that the name of the Corporation is given in the schedule of Ordinance, 1986 and since the petitioners’ service condition is governed as per the provision of the said Ordinance, 1986 as such, vide section 14A the petitioners are entitled to serve up to 60 years.

  7. The moot question to be resolved in these Rules Nisi is whether Meghna Petroleum Ltd. does or does not maintain the corporate character of a limited Company, a unit under the Bangladesh Petroleum Corporation, which has been nationalised under the provision of Bangladesh Industrial Enterprises (Nationalisation) Order, 1972 (P.O. no. 27 of 1972). This name had been continued under the provisions of Bangladesh Petroleum Act, 1974 (Act no. 69 of 1974) and Ordinance no. 25 of 1976.

  8. Bangladesh Petroleum Corporation was established under the Bangladesh Petroleum Corporation Ordinance, 1976. The petitioners in Writ Petition Nos. 1208 and 1386 all of 2010 were originally appointed by the Administration (in-charge) of Dawood Petroleum Ltd. on 01.03.1972 which was renamed as Meghna Petroleum Ltd., incorporated by the Registrar of Joint Stock Company on 25.06.2007 (Annexure-2 to the supplementary affidavit to the affidavit-in-opposition of Writ Petition No. 1386 of 2010). In other words, previously they were employed in a public limited company incorporated under the Companies Act, 1913, now claiming to have become the workers under the Corporation in order to obtain the benefit of section 14-A of the Public Corporation (Management Co-ordination) Ordinance, 1986 (Ordinance no. 48 of 1986) fixing retirement age at 60 years.

  9. Respondent Nos. 3 and 4 claim that the Rules Nisi under Article 102 of the Constitution is not maintainable since the petitioners are the workers under the Company and that they are governed by the law of master and servant.

  10. No doubt vesting of shares of the Company in the Corporation leads to having control over the management of it’s affairs, even then the issue remains whether in spite of holding majority shares and or power to nominate or remove Chairman, Managing Director, Directors of the Company by the Corporation the company retains it’s corporate character and to what extent it’s autonomy has been curtailed.

  11. In order to determine the same we have gone through the Memorandum and Articles of Association. Except Articles 130 and 131 it appears to us that it is being managed, administrated and regulated by the terms as incorporated in the Memorandum and Articles of Association of the Company.

  12. In M.H. Chowdhury Vs. G.M. Titus Gas Transmission and Distribution Co. Ltd. and others reported in 33 DLR (AD) 186 the petitioner was appointed as General Supervisor in the Eastern Refinary Limited on 17.01.1967. The Company was subsequently placed under Bangladesh Petroleum Corporation. The claim of the petitioner was that previously he was employed in the public limited company but at the time of impugned termination he was an officer of a statutory corporation and as such his service condition were to be controlled by the Rules and Regulations applicable to the employees of Corporation. While deciding the said issue the Appellate Division also gave finding on the issue of maintainability where the majority share of the Company was vested in the government; it’s Board of Directors were nominated by the Corporation and where the functions of the Company was within the frame work of the Memorandum and Articles of Association, which is quoted herein below-

“In view of the submission as above, which though challenged, but remaining irrefutable, it would be difficult to hold that the company lost its identity as a corporate legal entity. It is true that with the nationalization of the company and its placement under the Corporation, doubts may arise as to the autonomous, and corporate character of the Company concerned, but in order to determine whether such character has been totally destroyed by or under the provisions of President’s Order No. 27 of 1972, the provisions of the Memorandum and Articles of Association and the actual working of each of such Company have to be examined. There cannot be any hard and fast rule in determining the status and character of a nationalized Company or enterprise, which has been placed under one of the Corporations created under Article 10 of P.O. 27 of 1972 except to judge the statutory provision vis–vis the Memorandum and Articles of Association of the Company and its working.”

  1. The said view has also been reiterated in the case of New Dacca Industries Ltd. Vs. Quamrul Huda and others reported 31 DLR (AD) 234.

  2. At this juncture, referring to the preamble of the Act no. 48 of 1986 Mr. Hoque submits that this Ordinance is applicable to “Public Corporation” and in view of section 2 (d) the “Public Corporation” is inclusive “Company”.

  3. Refuting the said contention Mr. Chowdhury submits that in order to bring the company within the ambit of Ordinance, 1986 the same has to be included in the schedule of the Ordinance.

  4. Preamble of the Ordinance, 1986 provides as under:

“An Ordinance to provide for the co-ordinance of management of the affairs and business of certain public corporations.”

  1. The word “Public Corporation” has been defined in section 2 of the Ordinance, which runs as follows-

“public corporation " means an authority, body, organization or company specified in the schedule to this Ordinance.”

  1. In the schedule a list of 50 (fifty) corporations, body corporate and organizations have been incorporated, which is a part of the Ordinance. Bangladesh Petroleum Corporation has been posted at serial No. 23, but does not include the name of any Company. Mr. Hoque, in this regard argues that Corporation includes Company placed under Ordinance, 1986. The said submission is misconceived one, for, to bring the Company in the schedule it has to be expressly specified in the same.

  2. In view of the above findings of the Appellate Division we have no manner of doubt that the petitioners are the employees of the Company and as such the law of master and servant is applicable.

  3. However, in Bangladesh Gas Fields Company Limited Vs. Md Fariduddin Ahmed and Others reported in 5 ADC 325 the Appellate Division on the similar issue found the Rule maintainable and made section 14A of the Ordinance, 1986 applicable, observing inter-alia,-

“The Ministry or Division which has the administrative control over a public corporation shall determine the policy relating to the price of goods and services produced and rendered by such corporation and its enterprises and, the corporation shall fix the price of such goods and services according to such policy.”

  1. While deciding the maintainability of the Rule the Appellate Division, however, did not discuss the ratio as was decided in the case reported in 31 DLR (AD)234 and 33 DLR(AD)186. It is the established principle of law that the latter decision shall overrule the earlier decision. In that view of the matter the ratio as decided in 5 ADC (325) is to be made applicable in the present case. Accordingly, since section 14A of the Ordinance, 1986 is applicable in the case of the petitioners as such retiring them at the age of 57 years is hereby declared as unlawful.

  2. In the result, the Rules Nisi in all the writ petitions except writ petition no. 1907 of 2009 are made absolute.

  3. In writ petition No. 1907 of 2009 it appears from Annexure-B-I to the affidavit-in-opposition that vide gazette notification dated 19.08.1987 the company has been withdrawn from Bangladesh Steel and Engineering Corporation. In this connection, Mr. Hoque the learned Advocate for the petitioner drawing attention to the Annexures as contended in the affidavit-in-reply submits that the said gazette has not been acted upon and that the company is still working as an unit under the Corporation.

  4. Mere publication in the calendar showing that the Company is an unit of the Corporation does not put at naught the effect of the gazette notification which has been published on 19.08.1987. Be that as it may, since the Company is no more under the Corporation as such the petitioner being an employee of a Company, which is neither a local authority as defined in section 3(28) of the General Clauses Act or in the service of the Republic hence, this Rule is not maintainable.

  5. However, it is the categorical assertion of the petitioner that the company in the case of other employees has retired them at the age of 60 years but it has retired the petitioner at the age of 57 years, which is discriminatory and hence, violative of Articles 27, 29 and 31 of the Constitution. The said assertion of the petitioner has not been denied by the respondents. However, at the time of issuance of the Rule the impugned order was stayed vide order dated 22.03.2009 pursuant thereto the petitioner had served the Company till the age of 60 years. In that view of the matter for the cause of justice, equity and fair play the respondents is to the pay the service benefits which he is duly entitled to treating him as retired at the age of 60 years instead of 57 years.

  6. With the above observation the Rule in writ petition no. 1907 of 2009 is disposed of.

  7. There will be no order as to costs.

Farid Ahmed, J.

I agree.