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Meghna Petroleum Ltd Vs. Labour Appellate Tribunal and Ors.

Citation: 2016 BLD 172

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 5724 of 2015 With Writ Petition No. 5725 of 2015. Writ Petition No. 5726 of 2015. Writ Petition No. 5727 of 2015. Writ Petition No. 5728 of 2015. Writ Petition No. 5729 of 2015. Writ Petition No. 5730 of 2015. Writ Petition No. 5731 of 2015 and Writ Petition No. 5732 of 2015

Decided On: 14.12.2015

Appellants: Meghna Petroleum Ltd Vs. Respondent: labour Appellate Tribunal and Ors.

Hon’ble Judges/Coram: Md. Rezaul Hasan and Khizir Ahmed Choudhury, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Md. Lutfor Rahman and Quamrun Nahar Mahmud Deepa, Advocates

JUDGMENT

Md. Rezaul Hasan, J.

  1. All these Writ Petitions, being numbered 5724 of 2015, 5725 of 2015, 5726 of 2015, 5727 of 2015, 5728 of 2015, 5729 of 2015, 5730 of 2015, 5731 of 2015 and 5732 of 2015, have appeared against item No. 5 and have been taken together for disposal by the same and one judgment, since the legal and factual issues involved in all these matters are similar, the employer is the same, namely-Meghna Petroleum Ltd., although Respondent No. 3 in all writ petitions, are individual persons, but all of them claim themselves as workers under Meghna Petroleum Ltd., working in a canteen situated at it’s main installation at Potenga, Chittgong.

  2. In Writ Petition No. 5724 of 2015, a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 141 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 60 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5725 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 142 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 55 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5726 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 143 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 62 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5727 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 144 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 54 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5728 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 145 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 59 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5729 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 146 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 56 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5730 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 147 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 61 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days; in Writ Petition No. 5731 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 148 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 57 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days and in Writ Petition No. 5732 of 2015 a Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned judgment and order dated 29.09.2014 passed by Respondent No. 1 in labour Appeal No. 149 of 2013 dismissing the appeal and affirming the Judgment and Order passed by the Respondent No. 2 in labour Case No. 58 of 2008 allowing the case and directing the petitioner to treat the respondent No. 3 as regular labour from the date of filing the case and to pay wages and other benefits like regular labour from the date of the filing the case within thirty days should not be declared illegal and without any lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper.

  3. The contention of the employer is that, none of the respondent are employees appointed by the MPL and as such they are not worker under the MPL, but the labour Courts, in all these nine labour cases, and the labour Appellate Tribunal in all the appeals, found that the Respondents (No. 3 in all (writ petitions) are workers under the MPL, in absence of any proof or material and have thus exercised a jurisdiction not vested in them by way of entertaining the said labour cases and the appeals. The labour Appellate Tribunal has also failed to take into notice that the labour Court has treated these nine labour cases to have been filed under Section 213 of the labour act, 2006, although all these cases were filed under Section 33(3) of the labour act, 2006 (the ‘Act’ in brief) and that the labour court is not competent to do so. Hence, being aggrieved by the judgments and orders passed in above mentioned nine appeals by the labour Appellate Tribunal, thereby upholding the judgments and orders passed by the labour Court in above mentioned nine labour cases, the petitioner has moved these 9 writ petitions and obtained these nine Rules.

  4. The contention of the respondent No. 3, in all these cases, in short, is that the petitioner Meghna Petroleum (MPL) is maintaining a Canteen at its main installation situated at Potenga, Chittagong. The said respondents are all employed as workers in the said Canteen, in different categories, namely-had cook, assistant cook, canteen boy, tea boy and table boy etc.

  5. In all the Rules, the factual and legal issues being similar and the employer being the same, these Rules are taken for analogous hearing and disposal.

  6. Mr. Md. Lutfor Rahman, appearing with learned Advocate with Ms. Quamrun Nahar Mahmud Deepa, on behalf of the petitioner, having placed the petitions and the affidavits-in-opposition before us, first of all submits that in the absence of any appointment letter, which is to be issued upon observing certain procedure, the labour Court ought not have treated the Respondents No. 3 as workers in Meghna Petroleum Ltd. (MPL). As such, in the absence of any proof that the petitioners were appointed as workers by the MPL, the labour Court has assumed jurisdiction to entertain the cases of the petitioners treating them as workers, although it lacks jurisdiction to entertain these cases and these are cases based on no evidence. Besides, he next submits, the Canteen is managed by a committee appointed by the MPL, hence it is not an establishment of MPL. Moreover, the labour court has passed the impugned judgments, in all these nine cases, by treating 9 petitions to have been filed under section 213 of the labour act, 2006, although these petitions were filed under section 33(3) of the act and the labour Court, thereby exercised a jurisdiction not vested in it. But, in upholding the 9 judgments, the labour Appellate Tribunal, in the above mentioned nine appeals, without considering these erroneous assumption of jurisdiction, has exercised a jurisdiction by way of misinterpreting the provisions of law and as such the nine impugned judgments and orders passed by the Appellate Tribunal, upholding the judgments and orders of the labour Court, are all without jurisdiction and amounts to non-application of mind. Hence, the all impugned judgments and orders, passed by the Appellate Tribunal, are liable to be declared to have been passed without lawful authority and are of no legal effect. In support of his contention, the learned Advocate has referred to the decisions reported in 33 DLR(AD) (1981) 58, (James Finalay and Co. Ltd. Vs. The Chairman, Second labour Court, Dhaka and another) and 51 DLR (AD) 215 (Sabita Dutta Vs. Manager, Cinema Palace, Chittagong and another).

  7. Learned Advocates Mr. Mahbubul Haque, appearing along with learned Advocate Mr. Md. Kamrul Islam, on the other hand, submits that a person may be appointed orally in the Canteen maintained by the Meghna Petroleum. In absence of written appointment letter the verbal appointment is valid. D.W. 1 has admitted, in his cross examination, that all the First Parties (respondent employees) are employees of the Canteen situated at the main installation of the petitioner, at Potenga, Chittagong. He (D.W. 1) has also admitted that for managing the canteen a committee has been formed by the MPL. D.W. 1 further admits that there is another Canteen in the Head Office. Besides, he continues, all the 1st Parties Respondents No. 3, in all these cases, are employees of Meghna Petroleum Ltd. and they have proved the same by submitting identity cards bearing seal and seal of the MPL Officer and other proofs before the labour Court, which were marked as exhibits 1-7, although in the identity card, they have been shown as temporary workers. But, it has been admitted by the D.W. 1, that they are working for the last 15-20 years. The labour court also found from Exts. 2 and 2(1) that there is set up for employment of workers in the canteen of the Meghna Petroleum Ltd. and have taken into consideration all proofs placed before it and found that all the 1st Parties-Respondents are workers of the MPL. However, he also submits that, as per provisions of sub-section (8) of section 4 of the labour act, 2006, the employees/respondents are entitled to become permanent worker after completion of three months services, unless the initial three months period is extended for further 3(three) months. But, the authority did not treat them as permanent workers, even after expiry of the statutory time limit prescribed under section 2(8) of the act. Hence, the petitioners have filed grievance petition as per provision of section 33(1) of the labour act, which being rejected within the 15 days time period, prescribed under Section 33(2) of the act, nine employees/respondents have filed above mentioned nine labour Cases before the labour Court, within 30 days, as prescribed by section 33(3) of the act. As such, they have complied with the procedure laid down in section 33 of the act. However, the labour Court allowed all the cases with direction to issue appointment letters in favour of all the 1st Parties-Respondents from the date of filing of the labour cases and to give them all financial benefits due from the said date. In passing these judgments and orders, he continues, the labour court acted within its jurisdiction. Since 9 employees/respondents have been working under Meghna Petroleum Limited as workers and the labour Court has jurisdiction to entertain and pass judgments in these nine cases, he adds. Mere conversion to section 213 from section 33 sub-section (3) of the labour act, 2006, he proceeds, will not render these cases without jurisdiction. He also submits that it is admitted fact that the Canteen is it situated on the land owned by the MPL, at it’s main installation and the canteen facilities are provided as required by law. He, therefore, concludes that all the Rules should be discharged. He has cited 47 DLR (AD) 1: Col. Md. Hashmat Ali (Retd.) Vs. Government of Bangladesh in support of his contention that conversion of the complaint petitions from one section to another was not illegal.

  8. We have heard the learned Advocates for both sides, perused the nine writ petitions along with affidavits-in-opposition filed by the respondents as well as the relevant law and the judgments cited before us.

  9. We find that, it has not been denied that the employees/respondents were appointed in the Canteen situated at main installation, at Potenga, Chittagong, and it is owned by Meghna Petroleum Limited. The Canteen has been established for rendering services to the employees (workers and officers of the MPL). It is also not denied that all these 1st parties/respondents No. 3 (in all writ petitions) were appointed verbally to serve as head cook, assistant cook, canteen boy, tea boy or table boys in that canteen.

  10. Admittedly, and according to the nature of job, none of these positions require exercising any managerial power or supervisory power. Besides, the identity card, duly signed by an Officer of MPL with seal and other documents clearly shows that the 1st parties/respondents have been verbally employed by MPL, i.e. without issuing any written appointment letters.

  11. In the facts and the circumstances recorded above, we are of the considered view that, all the 1st parties/respondents number-3, come within the definition of worker as defined under section 2(65) of the labour act, 2006. The fact of not issuing appointment letter, in any of these cases, is not requirement of law.

  12. We further declare, in exercise of the powers vested in this court under Article 111 of the Constitution of the Peoples Republic of Bangladesh, that a person can be appointed verbally as worker or officer as well as by issuing a written appointment letter, as the case may be, unless the applicable law requires a written appointment letter to be issued. We also take judicial notice of the trend in some employers in abstaining from issuing written appointment letters, in some cases to discourage Trade Union or, in other cases, to secure unlawful terminations, removal or dismissal. However, in the case of verbal appointment proper evidences to support the same must be placed before the court to enable it to draw a conclusion to that effect. However, the degree of proof in such a case shall be that as required to prove a civil case, not beyond any reasonable doubt, as required to prove a criminal case.

  13. Accordingly, we hold that in all these writs, these respondent No. 3 are workers of the MPL. We also hold that the labour court in all these cases, has rightly found, based on evidence, that the petitioners are workers of the MPL. The labour Appellate Tribunal upheld the judgment passed by the labour Court. We are also of the view that, since the Labaour Court has jurisdiction under section 33(3) of the labour act, 2006, so the legality of the question as to whether the conversion of these petitions to have been filed under section 213 instead of section 33(3) of the act need not to be decided in these cases.

  14. We have, however, consulted the decision reported in 47 DLR (AD) (1995) (Col. Md. Hashmat Ali (Retired) Vs. Government of Bangladesh and another), wherein it has been held, that “Mention of wrong provision or the omission to mention the provision which contains the source of power will not invalidate an order where source of such power exists.” In this respect, we hold that the law declared in 47 DLR (AD) 1 is binding on us. But, the cases before us are not cases of quoting wrong section, rather a deliberate act of labour Court, whereby it has converted a case filed under section 33(3) to cases filed under section 213 and pronounced the judgments accordingly. Hence, in our considered view, 47 DLR (AD) 1 is not applicable to these cases. The learned Advocate for the petitioner (in all writ petitions) has referred to 51 DLR (AD) 215: Sabita Dutta Vs. Manager Cinema Palance, wherein the apex court has held that, “In the absence of compliance with the statutory requirements under section 25 of the [ Employment of labour (standing Order)] act 1965, no application under section 34 of the [ Industrial Relations] Ordinance [1969] can be converted to one under the [ Employment of labour (Standing Orders) ] act (1965) and as such there is no scope for remitting the case to the court below. Similarly, in 33 DLR (AD) 59, it has been echoed by the apex court that, “Unless the provisions of S. 34 are complied with an application under Section 34 can not be converted into one under section 25 of the Employment of labour (S.O.) act, 1965.” These are settled law. But, in matters before us, the questions decided in 51 DLR (AD) 215 and is 33 DLR (AD) 51 are not same in nature. Hence, these two decisions are not of much help to the petitioner.

  15. In the matters before us, we find that, the 1st parties/respondents No. 3 (in all writ petitions) have complied with the procedure laid down in section 33(2), by filing a grievance petitions and have filed 9(nine) separate complaint petitions, mentioned herein before, under section 33(3) of the labour act, 2006, within the time limit 30 (thirty) days prescribed by law i.e. section 33(3). Therefore, in our considered view, labour Court had jurisdiction to entertain and to try those cases under section 33 (3) of the act and it need not have to treat these cases to have been filed under section 213 the labour act, 2006.

  16. The labour Court did not direct the employer to treat the 1st parties as regular workers from the date of their appointment. The labour Court, in our considered view, had jurisdiction to pass such judgment and orders as rightly upheld by the labour Appellate Tribunal by the impugned judgments, all dated 29.09.2014, in all 9(nine) appeals, referred to in the Rules. Besides, the MPL should not have made discrimination amongst the workers employed by it, that amounts to violation of Article 27 as well as Article 31 of the Constitution. We also point out that, the act of not issuing written appointment to these workers were not fair on the part of MPL and this is culpable conduct.

  17. In the ratio of 51 DLR (AD) 215, we have supplied the full title of the relevant act and of the Ordinance, within the 1st and 3rd brackets. It is also pertinent to record here, before parting of, that the provisions of section 25 of the erstwhile Employment of labour (Standing Orders) act, 1965 is similar to that of section 33 of the labour act, 2006 (under chapter-2), while the provisions of section 34 of erstwhile IRO 1969 is similar to that of section 213 of the labour act, 2006 (under chapter-14).

  18. In view of the deliberation recorded above, we find no merit in these Rules. These rules are liable to be discharged therefore.

    ORDER
    In the result, the Rules are discharged.
    The petitioner (in all the writ petitions) is directed to implement judgments and orders passed in aforementioned nine labour cases within 30(thirty) days, from the date of receiving the judgments and orders of this court. The time passed meanwhile shall not be treated as non-compliance of the judgments and orders passed by the labour Court.
    Let a copy of this judgment be sent to the petitioner.
    No order as to costs.