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Nur-e-Alam Vs. Ander Jenson and Ors.

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Criminal Review Petition No. 17 of 2010

Decided On: 07.05.2012

Appellants: Nur-e-Alam Vs. Respondent: Ander Jenson and Ors.

Hon’ble Judges/Coram: Surendra Kumar Sinha, Md. Abdul Wahhab Miah, Syed Mahmud Hossain, Muhammad Imman Ali and Md. Shamsul Huda, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Abdus Salam Khan, Senior Advocate instructed by Aftab Hossain, Advocate-on-Record

JUDGMENT

Md. Abdul Wahhab Miah, J.

  1. This criminal review petition has been filed by the petitioner for reviewing the judgment and order dated 08.12.2009 passed by this Division in Criminal Petition for Leave to Appeal No. 233 of 2009 dismissing the same. Facts necessary for disposal of this petition are as follows:

  2. The petitioner, Md. Nur-e-Alam filed B.L.L. Case No. 335 of 2008 under Section 213 of the Labour Law, 2006 (the Law, 2006) before the First Labour Court, Dhaka with the prayer as follows:
    “WHEREFORE, it is most humbly prayed that the learned Court may be pleased to issue notice upon the O.Ps. calls for the records and after hearing allow the case and direct the O.P. No. 1 and 2 to treat the petitioner (sic) as a permanent worker and direct them to pay the facilities of permanent worker as entitled to under the law and equity for the ends of justice.”

  3. The case of the petitioner as stated in the application of the said B.L.L. case was that he was appointed as Driver on 20.07.2005 by Grameen Phone Limited and was getting salary from the said Company. The petitioner had been driving Car No. Dhaka Metro-Cha-51-5151 of Grameen Phone Limited and accordingly, Grameen Phone Limited issued staff identity Card No. GP ID-70240/Smart-ID-D-50 in his favour. The petitioner was provided with staff uniform and getting facilities of overtime allowances and 2 festival bonus in a year; he became permanent worker under Grameen Phone Limited by operation of law under Section 4(Cha)(7) and (8) of the Law, 2006, but they did not treat him as permanent worker. Smart Services Limited is a company supplying workers under Grameen Phone Limited. The petitioner was a worker of Grameen Phone Limited, but they were not treating him as permanent worker by saying that he was the employee of Smart Services Limited. The petitioner on several times requested Grameen Phone Limited to treat him as permanent employee of the said company, but they refused to do so and thus, they violated sections 4(Cha)(7) and (8) of the Law, 2006 and hence he was compelled to file the case.

  4. After filing the case, the petitioner on 22.06.2008 filed an application under section 216(1)(Chha) of the Law, 2006 and Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure for an order of temporary injunction along with a prayer for an order of ad-interim injunction or status quo restraining Grameen Phone Limited and others from causing injury to him in the service during the pendency of the case. The Labour Court heard the application ex-parte and on 26.06.2008 issued a notice upon Grameen Phone Limited, Smart Services Limited and the respective Managing Directors of these companies asking them to show cause as to why an order of temporary injunction should not be passed against them as prayed for in the petition and also directed them to maintain status quo in respect of the conditions of the service of the petitioner. Grameen Phone Limited submitted reply to the show cause notice on 22.07.2008 and the date of hearing of the injunction application was fixed on 25.08.2008. In the meantime the petitioner was removed from employment on 26.06.2008 and then he filed a violation case being Miscellaneous Case being No. 354 of 2008 under section 307 of the Law, 2006 against the present respondent No. 1, Anders Jensen, Managing Director, Grameen Phone Limited (hereinafter referred to as respondent No. 1) for non-compliance of the order of the Court dated 26.06.2008; the First Labour Court, Dhaka on 20.07.2008 issued summons upon respondent No. 1 for his personal appearance for non-compliance of the order of the Court dated 22.06.2008. Challenging the said order and the proceedings of the said violation miscellaneous case, respondent No. 1 filed an application before the High Court Division under section 561A of the Code of Criminal Procedure and obtained a Rule vide Criminal Miscellaneous Case No. 12999 of 2008.

  5. A Division Bench of the High Court Division hearing the criminal miscellaneous case by judgment and order dated 17.02.2009 made the Rule absolute and quashed the proceedings of Violation Miscellaneous Case No. 234 of 2008 arising out of B.L.L. Case No. 335 of 2008 pending before the First Labour Court, Dhaka. Against the judgment and order of the High Court Division, the petitioner filed Criminal Petition for Leave to Appeal No. 233 of 2009 before this Division. This Division on hearing the leave petition by judgment and order dated 8th December, 2009 dismissed the leave petition, against which the instant review petition has been filed.

  6. Heard Mr. Abdus Salam Khan, learned Counsel, appearing for the petitioner and perused the judgment passed by this Division.

  7. From the Judgment and Order passed by the High Court Division, it appears that the High Court Division made the Rule absolute quashing the proceedings of Violation Miscellaneous Case No. 354 of 2008 on the ground that the company, namely, Grameen Phone Limited did not issue any appointment letter in favour of the petitioner although he had been continuing his duty for more than 3 (three) years for which he filed B.L.L. Case and the main issue to be decided therein is whether the petitioner is an employee of the company or that of the contractor, Smart Services Limited. The High Court Division took the further view that in the B.L.L. Case out of which the impugned order challenged before the High Court Division was passed giving rise to the impugned proceedings, the respondent-Anders Jensen, Managing Director of Grameen Phone Limited was not named in person, rather the company and the official representative of Grameen Phone Limited were made respondents, and on such view, did not think it proper to allow respondent No. 1 to face trial in the case and this Division while dismissing the leave petition approved the said view of the High Court Division. It may further be stated that Violation Miscellaneous Case No. 354 of 2008 had/has no impact on the relief prayed for in the B.L.L. case.

  8. In the review petition, the petitioner has failed to show that the view taken by this Division endorsing the view of the High Court Division was the result of an error apparent on the face of the record warranting review of the same as provided in Order XXVI, rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. It further appears that the grounds taken in the review petition were also taken in the leave petition but those not being relevant were not considered.
    In view of the above, we find no merit in the review petition accordingly, the same is dismissed.