Robi Axiata Ltd. Vs. First labour Court, Dhaka, and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 4720-4723 and 8325-8362 of 2012

Decided On: 28.07.2013

Appellants: Robi Axiata Ltd. Vs. Respondent: First labour Court, Dhaka, and Ors.

Hon’ble Judges/Coram: Syed Refaat Ahmed and Syed A.B. Mahmudul Huq, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Rokanuddin Mahmud, Senior Advocate, Adita Afrose Hasan, Mostafa Golam Kibria and Md. Anisur Rahman, Advocates

For Respondents/Defendant: Hassan M.S. Azim and Kamal Hossain Meahzi, Advocates

JUDGMENT

Syed Refaat Ahmed, J.

1. At the instance of the Petitioner Robi Axiata Ltd., alias Axiata (Bangladesh) Ltd., forty-two individual Rules Nisi were issued calling upon the Respondents to show cause why similarly drafted Impugned Orders of the Chairman, First labour Court, Dhaka in individually numbered B.L.L. Cases rejecting in each instance the application of the Petitioner made under Order 7, Rule 11 of the Code of Civil Procedure (“the Code”) for rejection of plaint should not be declared to have been passed without lawful authority and are no legal effect. Each Rule Nisi issued was accompanied by an ad interim Order of Stay affecting the operation of each such Impugned Order.

2. A perusal of all the Writ Petitions reveals that the Respondents in each instance, barring one i.e., in Writ Petition No. 8327 of 2012, filed applications under Section 213 of the Bangladesh labour act, 2006 (“the Act”) against the Petitioner while still in employment of the Petitioner (as reflected in the Timeline Table below) alleging that under Section 4(7) and (8) of the act each of them has become a permanent employee of the Petitioner company. Each such application in the nature of a plaint spelt out the initial engagement of each applicant on a temporary basis on various occasions evidenced in various service contracts stipulating the terms and termination dates of the period of employment.

3. The Petitioner contends that in each such case, going by the very nature of the work assigned being temporary, each contractual period ranged from consecutive 89 days to a maximum of six months expressly stipulating the cessation of contract upon the completion of the specified period of employment, the reasonable conclusion to be drawn is that such employment can only be temporary in nature. The Respondents in their plaints before the labour Court contend otherwise submitting that by operation of law evident in specific provisions of the act combined with the efflux of time each Respondent has become a permanent employee. Against this backdrop, this Court is presently engaged in a limited scope of enquiry determined by the terms of the Rules Nisi issued, these being in turn informed by the Impugned Orders issued.

4. The First labour Court took due note of the competing standpoints of the parties before it on the question of jurisdiction vesting in the labour Court either under Section 33 or Section 213 of the act. The present Respondents having invoked Section 213 of the act in instituting their respective cases before the labour Court stressed that fundamental to that choice of jurisdiction has been the fact of the plaints being filed on dates while they continued in active employment of the Petitioner, Robi Axiata Limited.

5. Robi Axiata for its part has insisted that the temporary employment of each such plaintiff having already determined under separate contracts of employment, the proper avenue of redress lay alternatively under Section 33 in preference to Section 213 of the act. Noting that each side had submitted and argued extensively on merit in each such case, the labour Court, however, on the question of jurisdiction based on its reading of Section 33 and Section 213 of the act found on a prima facie cause of action arising in each case. That Court proved hesitant to abdicate its jurisdiction and authority and found such authority not being barred by law as otherwise emphasized in the Order 7, Rule 11 applications of Robi Axiata Limited. In other words, having found on the existence of its jurisdiction under the facts and circumstances under Section 213 of the act the labour Court in each such instance proceeded to reject that applications under Order 7, Rule 11 read with Section 151 of the Code.

6. The competing perspectives on jurisdiction as reflected in the Impugned Orders have necessarily formed the basis of argument and counter-arguments by the Petitioner and each of the Respondents in these Writ Petitions clearly demarcated by the Petitioner’s reliance on Section 33 of the act and the Respondents understandably falling back on Section 213 of the act. As a corollary to the issuance of the Rules Nisi, the Respondents have also placed for this Court’s consideration the issue of whether at all it lay within the scope and nature of the labour Court’s authority as specifically spelt out in Section 216 of the act to entertain and dispose of applications under Order 7, Rule 11 of the Code. Here as well, the Petitioner Robi Axiata Limited has stressed on the primacy to be attached to the Section 33 grievance procedure in lieu of the Section 213 application process within the scheme of the act and as necessitated by the facts and circumstances of each case. It is contended that it was incumbent upon each Respondent to file an application instead under Section 33, this being the condition precedent to filing a complaint before the labour Court as contemplated within Section 33 itself. It is submitted that the First labour Court primarily erred in failing to appreciate that Section 213 is not attracted in the present facts and circumstances and that Section 33 having made available the proper forum and procedure for grievances to be addressed, all the Respondents are barred from bringing their claims under an alternative forum by invoking any other provisions of the act. It is conceded, however, that access to be labour Court could be had, at the end of the day but only though the procedural avenues laid out in Section 33 and the failure to exhaust which procedure as a condition precedent would indeed operate as a bar under the law from bringing any suit directly under Section 213 as each Respondent proceeded so to do and in recognizing the availability of which alternate forum under Section 213 the labour Code clearly acted beyond its jurisdiction.

7. Seized of these cases as above, this Court appreciates that the scheme of the act, as is so essential for a proper understanding of these competing perspectives on jurisdiction, owes much to a series of enactments that collectively governed the legal regime on labour employment and industrial relations up until the enactment of the act. Both Mr. Rokanuddin Mahmud appearing on behalf of the Petitioner and Mr. Hassan M.S. Azim appearing for the Respondents in all these Writ Petitions have impressed upon this Court the need for an extensive enquiry of the evolution of that legal regime culminating in an extensive codification exercise with the act emerging as the final product.

8. Both Mr. Mahmud and Mr. Azim are in agreement that the legislative moorings of the act lay firmly embedded in the Employment of labour (Standing Orders) act, 1965 (“EL (SO)A”) and the Industrial Relations Ordinance, 1969 (“IRO”), with the act borrowing heavily from both these enactments as reflected particularly in the provisions of the act that this Court is concerned with presently. Three provisions of the act in, particular, stand out in this regard having antecedents and provenance going back all the way either to the EL(SO)A or the “IRO”:

“২(৬৫) “শ্রমিক” অর্থ শিক্ষাধীনসহ কোন ব্যক্তি, তাহার চাকুরীর শর্তাবলী প্রকাশ্য বা উহ্য যে ভাবেই থাকুক না কেন, যিনি কোন প্রতিষ্ঠানে বা শিল্পে সরাসরিভাবে বা কোন ঠিকাদারের মাধ্যমে মজুরী বা অর্থের বিনিময়ে কোন দক্ষ, অদক্ষ, কায়িক, কারিগরী, ব্যবসা উন্নয়নমূলক অথবা কেরানীগিরির কাজ করার জন্য নিযুক্ত হন, কিন্তু প্রধানতঃ প্রশাসনিক বা ব্যবস্থাপনামূলক কাজে দায়িত্বপ্রাপ্ত কোন ব্যক্তি ইহার অন্তর্ভুক্ত হইবে না।

৩৩। অভিযোগ পদ্ধতি- (১) লে-অফ, ছাঁটাই,

ডিসচার্জ, বরখাস্ত, অপসারণ অথবা অন্য যে কোন কারণে চাকুরীর অবসান হইয়াছে এরূপ শ্রমিকসহ যে কোন শ্রমিকের, এই অধ্যায়ের অধীন কোন বিষয় সম্পর্কে যদি কোন অভিযোগ থাকে এবং যদি তিনি তৎসম্পর্কে এই ধারার অধীন প্রতিকার পাইতে ইচ্ছুক হন তাহা হইলে তিনি, অভিযোগের কারণ অবহিত হওয়ার তারিখ হইতে ত্রিশ দিনের মধ্যে অভিযোগটি লিখিত আকারে রেজিস্ট্রি ডাকযোগে মালিকের নিকট পেশ করিবেনঃ

তবে শর্ত থাকে যে, যদি নিয়োগকারী কর্তৃপক্ষ অভিযোগটি সরাসরি গ্রহণ করিয়া লিখিতভাবে প্রাপ্তি স্বীকার করেন, সেই ক্ষেত্রে উক্ত অভিযোগটি রেজিস্ট্রি ডাকযোগে না পাঠাইলেও চলিবে।

(২) মালিক অভিযোগ প্রাপ্তির পনের দিনের মধ্যে অভিযোগ সম্পর্কে তদন্ত করিবেন এবং সংশ্লিষ্ট শ্রমিককে শুনানীর সুযোগ দিয়া তৎসম্পর্কে তাহার সিদ্ধান্ত লিখিতভাবে শ্রমিককে জানাইবেন।

(৩) যদি মালিক উপ-ধারা (২) এর অধীন কোন সিদ্ধান্ত দিতে ব্যর্থ হন, অথবা সংশ্লিষ্ট শ্রমিক যদি উক্তরূপ সিদ্ধান্তে অসন্তুষ্ট হন, তাই হইলে তিনি উপ- ধারা (২) এ উল্লিখিত সময় অতিক্রান্ত হওয়ার তারিখ হইতে ত্রিশ দিনের মধ্যে অথবা, ক্ষেত্রমত, মালিকের সিদ্ধান্তের তারিখ হইতে ত্রিশ দিনের মধ্যে শ্রম আদালতে লিখিতভাবে অভিযোগ পেশ করিতে পারিবেন।

(৪) শ্রম আদালত অভিযোগ প্রাপ্তির পর উভয় পক্ষকে নোটিশ প্রদান করিয়া অভিযোগটি সম্পর্কে তাহাদের বক্তব্য শ্রবণ করিবে এবং উহার বিবেচনায় মামলার অবস্থাধীনে যেরূপ আদেশ দেওয়া ন্যায়সঙ্গত সেরূপ আদেশ প্রদান করিবে।

(৫) উপ-ধারা (৪) এর অধীন প্রদত্ত কোন আদেশ দ্বারা আদালত, অন্যান্য প্রতিকারের মধ্যে, অভিযোগকারীকে, বকেয়া মজুরীসহ বা ছাড়া, তাহার

চাকুরীতে পূর্নবহাল করার নির্দেশ দিতে পারিবে এবং কোন বরখাস্ত, অপসারণ বা ডিসচার্জের আদেশকে ধারা ২৩(২) এ উল্লিখিত কোন লঘু দন্ডে পরিবর্তিত করিতে পারিবে।

(৬) শ্রম আদালতের কোন আদেশ দ্বারা সংক্ষুব্ধ কোন ব্যক্তি আদেশের ত্রিশ দিনের মধ্যে ট্রাইব্যুনালের নিকট আপীল দায়ের করিতে পারিবেন, এবং এই আপীলের উপর উহার সিদ্ধান্ত চূড়ান্ত হহবে।

(৭) এই ধারার অধীন কোন অভিযোগ বা আপীল দায়েরের জন্য কোন কোর্ট-ফিস প্রদেয় হইবে না।

(৮) এই ধারার অধীন কোন অভিযোগ এই আইনের অধীন কোন ফৌজদারী অভিযোগ বলিয়া গণ্য হইবে না।

(৯) এই ধারায় যাহা কিছুই থাকুক না কেন, ধারা ২৬ এর অধীন প্রদত্ত চাকুরীর অবসানের আদেশের বিরুদ্ধে কোন অভিযোগ করা যাইবে না, যদি না অবসানের আদেশটি সংশ্লিষ্ট শ্রমিকের ট্রেড ইউনিয়ন কর্মকান্ডের কারণে অথবা উদ্দেশ্য প্রণোদিতভাবে প্রদত্ত হইয়াছে বলিয়া অভিযোগ করা হয়, অথবা যদি না তিনি উক্ত ধারার অধীন প্রাপ্য সুবিধা হইতে বঞ্চিত হন।

২১৩। শ্রম আদালতে দরখাস্ত। কোন যৌথ দরকষাকষি প্রতিনিধি অথবা কোন মালিক অথবা কোন শ্রমিক এই আইন বা কোন রোয়েদাদ বা কোন নিষ্পত্তি বা চুক্তির অধীন বা দ্বারা নিশ্চিত বা প্রদত্ত কোন অধিকার প্রয়োগের জন্য শ্রম আদালতে দরখাস্ত করিতে পারিবেন।”

9. The act being essentially synergetic in nature understandably has borrowed extensively in the formulation of the above referred three provisions of the act. Accordingly, Section 2(65) of the act is based on a similar definition of “worker” found in Section 2(v) of EL(SO)A as reads thus:

“2(v) ‘worker’ means any person including an apprentice employed in any shop, commercial establishment or industrial establishment to do any skilled, unskilled, manual, technical, trade promotional or clerical work for hire or reward, whether the terms of employment be expressed or implied, but does not include any such person-

(i) Who is employed mainly in a managerial or administrative capacity; or

(ii) who, being employed in a supervisory capacity, exercises, either by nature of the duties attached to officer or by reason of power vested in him, functions mainly of managerial or administrative nature.

Section 33 of the act has as its forerunner Section 25 of the EL(SO)A.

10. The relevant provisions of Section 25 read thus:

25. Grievance procedure.-(1) Any individual worker including a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment who has a grievance in respect of any matter covered under this act and intends to seek redress hereof under this section, shall observe the following procedure:-
    
    (a) the worker concerned shall submit his grievance to his employer, in writing by registered post within fifteen days of the occurrence of the cause of such grievance and the employer shall within fifteen days of receipt of such grievance, enquire into the matter, give the worker concerned an opportunity of being heard and communicate his decision, in writing, to the said worker;
    
    (b) if the employer fails to give a decision under clause (a) or if the worker is dissatisfied with such decision, he may make a complaint to the labour Court having jurisdiction, within thirty days from the last date under clause (a) or within thirty days from the date of the decision, as the case may be unless the grievance has already been raised or has otherwise been taken cognizance of as labour dispute under the provisions of the Industrial Disputes Ordinance, 1959:

11. Section 213 of the act has as its forerunner Section 34 of the IRO with the important qualification that transported to the act is that version of Section 34 of the IRO as was amended on 17.10.1970. That amended version of Section 34 of the IRO read thus:

“34. Application to labour Court-Any collective bargaining agent or any employer or workman may apply to the labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.”

12. It also has to be noted that as self-contained pieces of legislation the IRO and the EL(SO)A had individual definitions of the words “worker” or “workmen” and it is the definition in EL(SO)A under Section 2(v) as above that in the evolutionary process has mutated as Section 2(65) of the act. It suffices to note here that the definition of “worker” and “workmen” under Section 2(xxviii) of the IRO read thus:

“2(xxviii) “Worker” and “Workmen” means any person including an apprentice not falling within the definition of employer who is employed in an establishment or industry for hire or reward either directly or through a contractor to do any skilled, unskilled, manual, technical or clerical work whether the terms of employment be expressed or implied and and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute.”

13. That definition in the IRO notably had two components. The first part concerned itself with a worker currently in employment and as observed in G.M. Hotel Inter-con. Vs. 2nd labour Court reported in 28 DLR (1976) 160, did not necessarily include a dismissed workman or who has ceased to be and is no longer in employment. The second part of the definition, as also noted in the G.M. Hotel Inter-con. Case, provided an extended meaning to the term workman and included two categories of dismissed workmen for a limited purpose, that is, a workman whose dismissal was brought about by a pre-existing industrial dispute or whose dismissal had led to an industrial dispute. For the purposes of the IRO it were only such workmen who could figure in proceedings concerning an industrial dispute. That definition by virtue of Section 175 of the act has been made applicable under Chapter 13 of the act as deals with trade unions and industrial relations. By that reason, Section 175, by adopting this as a special definition of “worker” provides an extended meaning to the definition as otherwise found in Section 2(65) of the act to include workers who ceased to be in employment by reason of or in relationship to any industrial dispute. Such disputes under the present architecture of the act stand to be resolved under the provisions of Chapter 14 of the act of which Section 213 constitutes an integral part.

14. The learned Advocate for the Petitioner Mr. Rokanuddin Mahmud has stressed on a structured analysis of the act with Sections 33 and 213 having a specific derivation and effect not, however, revealed in the eventual codification exercise producing the act. To that end, Mr. Mahmud stresses on the correlation of the Chapter 13 and 14 provisions of the act in terms of the raising and resolution of industrial disputes and submits that the Section 213 avenue of dispute resolution is only open to any worker who presently finds himself out of employment for reasons as can be agitated in an industrial dispute. He further submits that such an industrial dispute has to be pursuant to the provisions of Section 209 of the act leading consequentially to a resolution mechanism under Section 213. Section 209, it is noted, prescribes that an industrial dispute may only be validly raised either by an employer or a collective bargaining agent. In arguing so, Mr. Mahmud has stressed that Section 213 does not enure to the benefit of any individual worker seeking redress through an application independently made without recourse to such Chapter 14 procedure of raising an industrial dispute.

15. Mr. Hassan M.S. Azim, appearing for the Respondents, on the other hand, in acknowledging the codification exercise as reflected in the act, highlights that the act reflects an overarching new legislative intent clothing its provisions with distinct scope and nature compared to either the EL(SO)A or the IRO. Here Mr. Azim has referred to the ratio decidendi of the judgments in Rly. Mens Stores vs. Chairman labour Court reported in 33 DLR (SC)(1978), 251, A.K. Khan & Co. vs. Chairman labour Court reported in 32 DLR (1980), 164 and James Finlay vs. Chairman, S.L. Court reported in 33 DLR (AD)(1981), 58 with a view to establishing whether any worker or employee can file proceedings before the labour Court otherwise than in conjunction with an industrial dispute.

16. The labour Court in each of the present forty-two instances being asked to determine upon individual complaints of workers unrelated to any industrial dispute, Robi Axiata’s position has been that the invocation of Section 213 in all these instances is wholly misconceived. To gauge the validity of that assertion this Court has undertaken a thorough analysis of the judgments above cited by the Respondents. It is noted in that regard that the enunciation of the law prior to the 2006 as reflected in the EL(SO)A and the IRO is succinctly, yet vividly, incorporated in the judgment, in particular, in Rly. Mens Stores Case. In that Case D.C. Bhattacharya, J. undertook a detailed analysis of Section 34 of the IRO and Section 25 of the EL(SO)A, each such provision in turn being found to be tied inextricably to the definition of a “worker” and “workmen” incorporated in the respective enactments. D.C. Bhattacharya, J.’s exercise is of further significance given that it explains how Section 34 of the IRO, as a forerunner to Section 213 of the act, stood significantly transformed and extended in its ambit post-amendment on 17.10.1970. This Court notes that Section 34 in its so transformed and extended complexion has indeed formed the basis of Section 213 of the act.

17. It is noted that the amendments of 1970 were evidently introduced to further streamline the application of the EL(SO)A/IRO hybrid regime and consequentially resulting in a greater availability of remedies in labour disputes not strictly permitting of categorization as industrial disputes. The provenance of that amendment exercise is best explained thus in the James Finlay Case at para 58, page 84.

“The language of the definitions of ‘industrial dispute’ and ‘worker’ given in the different statutes as shown above led to some controversy whether “individual dispute " can be treated as an “industrial dispute” or “labour dispute”. This controversy, however, as it appears from different decisions on the labour laws, has been resolved by interpretation of the words ‘any person’ occurring in the definition of ‘industrial dispute’ or ’labour dispute’. A consensus arrived at by the superior courts appears to be that a “labour dispute” or an “industrial -dispute” can be raised by an individual worker who has been discharged or dismissed by his employer. The original Section 34 of the I.R.O., in view of the narrower scope for filing applications to the labour Court, did not comprehend any such wider interpretation. The definition thus fell short of suitable definition for the application of the consolidated legislation. It also fell short of the requirement of the different provisions of the Ordinance itself which contained some remedial provisions for an individual worker. So out of necessity the Ordinance was amended by the Ordinance No. XIX of 1970. Section 34 in its pristine form stood as under:

“Any party to an industrial dispute relating to a matter arising out of any right guaranteed or secured to an ’employer’ or ‘workman’ by or under any law for the time being in force or an award or settlement may apply to the labour Court for adjudication of dispute."

For the convenience of comparative study the amended section 34 is quoted below:

“Any ‘collective bargaining agent’ or any ’employer’ or ‘workman ’ may apply to the labour Court for enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.”

18. As noted in the James Finlay Case, the major changes introduced by the amendment are thus (See, para 58 at page 84):

a) the expression “industrial dispute” has been omitted;
b) the expression ‘collective bargaining agent’ has been included;
c) the expression any party to an ‘industrial dispute’ has been omitted;
d) it enables any ’employer’ or ‘workman’ to apply to labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement;
e) any employer or workman is now entitled to file an application before the labour Court relating to any matter which need not be an industrial dispute, and
f) it is now possible to bring an individual dispute before the labour Court”

19. The substantive effect consequent upon such amendment came further to be explained in the James Finlay judgment by R. Islam, J. thus at para 58, pages 84-85:

“As the section now stands, existence of an ‘industrial dispute’ is no longer a pre-condition for taking a proceeding before the labour Court. It is now open to an ’employer’ or a ‘workman ’ without being a party to an ‘industrial dispute’, to apply to the labour Court for enforcement of any right, etc. If it is a case of raising an industrial dispute then as per requirement of section 43 it should be raised in the prescribed manner by a ‘collective bargaining agent’ or employer. In such a case there is no scope for an individual worker to raise an ‘industrial dispute’. ‘Industrial dispute’ has been defined in Section 2(xiii) of the I.R.O. as under;
“Industrial dispute means any dispute or difference between ’employers’ and ’employers’ or between ’employers’ and ‘workmen ’ or between ‘workmen ’ and ‘workmen ’ which is connected with the ’employment’ or ’non-employment’ or to terms of ’employment’ and the conditions of work of any person “.

Section 43 of the IRO reads as follows:
“No industrial dispute shall be deemed to exist unless it has been raised in the prescribed manner by a collective bargaining agent or an employer “.

Section 43 does not have any manner or application to a case of an individual worker in raising an individual dispute. It has been indicated earlier that section 34 as it stands now does not contemplate only one class of proceedings, that is, ‘industrial dispute’ but it also comprehends proceedings relating to disputes other than ‘industrial dispute’. The bar in raising ‘industrial dispute’ as provided in section 43 of the I.R.O. is only applicable in the matter of raising industrial dispute, but it does not operate as a bar to a proceeding other than an ‘industrial dispute’ before the labour Court.”

20. It is evident, therefore, that the provisions of Section 34 of the IRO in its original version was not concerned with the workers’ individual disputes with an employer but were exclusively focused on industrial disputes. In that regard, an individual grievance of a particular worker could be raised in the labour Court only if it was taken up by the CBA and, thereby, made the subject-matter of an industrial dispute. As D.C. Bhattacharya, J. noted in the Rly. Mens Stores Case clearly, therefore, by the terms of the old Section 34 of the IRO the jurisdiction of the labour Court could be invoked there under only if there was an existence of an industrial dispute. The amendment of 1970, however, dislodged that requirement of existence of an industrial dispute as a sine qua non for invoking the jurisdiction of the labour Court under Section 34 and that is where D.C. Bhattacharya, J. incisively found thus on the scope and nature of the amended Section 34:

“It does not appear that under this amended provision the existence of an industrial dispute is an indispensable requirement for the application of the said provision and an individual workman may apply to the labour Court to enforce a right guaranteed or secured to him by any law or award or settlement. But such workman can take advantage of the said provision so long as he continues to be in employment”.

21. D.C. Bhattacharya, J. also notably in the course of his judgment highlighted the perils of an interpretative exercise with regard to either the IRO or the EL(SO)A that in probing into the ambit of any provision, in particular, relating to workmen or workers ignored the actual definitions of those terms found in the relevant enactment. The learned Judge found on that requirement of interpretation, as is this Court’s view, to be crucial to understanding the essential correlation, in particular, between Section 2(v) and Section 25 of the EL(SO)A as serve as forerunners to Section 2(65) and Section 33 respectively of the act. As was found of the Section 2(v) definition by D.C. Bhattacharya, J. and as rings true for Section 2(65) of the act, it does appear that neither of these definitions prima facie appear to include a worker who has ceased to be in employment. Given that scenario, Section 25 of the EL(SO)A and its successor Section 33 of the act may present a conundrum to jurists eager to establish a substantive link between these and the definitions in Section 2(v) and Section 2(65) respectively.

22. It is noted that the formulation of Section 25 of the EL(SO)A as was followed in Section 33 of the act allows for a forum for redress to any worker who has any grievance with regard to dismissal, discharge, retrenchment, lay off or removal from employment i.e., a contingency or scenario not expressly or specifically contemplated for either in Section 2(v) of the EL(SO)A or Section 2(65) of the act. That discordance between the definition clauses and the meaning of the term “worker” as found in the provisions dealing with grievance procedure was addressed in the Rly. Mens Stores Case by holding that it was the intention of the legislature, for this instance only, to use the word “worker” in an extended sense, thereby, including a worker who is no longer in employment and, thereby, one who is not strictly contemplated for in the definition clauses.

23. Accordingly, the conclusions drawn by this Court from the analysis above of D.C. Bhattacharya, J. in the Rly. Mens Stores Case are thus:

(i) pursuant to the amendment in 1970 to Section 34, IRO clothing it with a considerably wider scope, the existence of an industrial dispute was no longer an indispensable requirement for filing an application thereunder;

(ii) an individual workman could indeed apply to the labour Court to enforce a right granted or secured to him/her by any law, award or settlement;

(iii) such worker could take advantage of the above procedure so long as (s)he continued to be in employment; and

(iv) for those workers who had been terminated, the definition under Section 2(v) of the EL(SO)A did not operate as a bar for separate and individual applications under Section 25 of the EL(SO)A given that the said provision specially allowed for adjudication of grievances of excluded workers in respect of any of the matters covered by that legislation. In that sense, a worker who had ceased to be in employment would be deemed nevertheless, by the clear intent of the legislature, to qualify as a worker in the extended sense under Section 25 of the EL(SO)A.

24. Reflecting further on the fact that Section 25 of the EL(SO)A and Section 34 of the IRO had one other thing in common in that these provisions also allowed for a “worker” in the sense of those currently in employ to have recourse to a grievance procedure as well as to the labour Court through an application, D.C. Bhattacharya, J. drew an important distinction between these two provisions in that any individual terminated worker could only bring a dispute for resolution by invoking Section 25 of the EL(SO)A. However, any individual worker in employment had an option to pursue an avenue either under Section 25 of the EL(SO)A or under Section 34 of the IRO. These conclusions which appear to have generally secured subscription by the Appellate Division in the judgments in James Finlay vs. Chairman, S.L. Court reported in 33 DLR (AD)(1981),58, received further elucidation and endorsement in A.K. Khan & Co. vs. Chairman L. Court reported in 32 DLR (1980), 164. Developing further D.C. Bhattacharya, J.’s notion of an option being available to a presently employed worker to choose between the Section 25 and 34 procedures as above, S.M. Hussain, J. expressly declared the availability of a dual remedy to an existing individual worker both under Section 34 of the IRO and Section 25 of the EL(SO)A. That duality, according to S.M. Hussain, J. translated further into the exercise of a choice as would significantly enable an existing individual worker to very well “skip over” the proceedings of Section 25 of the EL(SO)A, i.e., the forerunner of Section 33 of the act, and move the labour Court directly under the amended provisions of Section 34 of the IRO i.e., the forerunner to Section 213 of the act. This Court finds that such availability of an option to shop between alternative remedies, therefore, emerged as an essential bye-product of the amendment brought about to Section 34 on and from October, 1970 as was so vividly explained in the Rly. Mens Stores Case by D.C. Bhattacharya, J. Therefore, and contrary to a line of argument adopted by Robi Axiata Limited in these Writ Petitions, it is this Court’s finding that an existing worker’s recourse to a Section 213 remedy is not invariably dependent on the availability of or a prior recourse to a remedy under Section 33 of the act.

25. This Court’s findings above are also informed by the cautionary note of D.C. Bhattacharya, J. in the Rly. Mens Stores Case that leads us to hold that the definition of a “worker” as found in Section 2(65) of the act has an overarching presence and influence in interpreting both Section 33 and Section 213 of the act and the word “worker” featuring in the said Sections. Section 33, in particular, is interesting in that while clearly appearing to accord primacy of consideration to workers presently not in employment it does crucially use the words এইরূপ শ্রমিকসহ যে কোনো শ্রমিকের thereby, establishing a direct linkage with Section 2(65) of the act by simply incorporating the words যে কোনো

26. In light of the above, this Court’s response to the question whether any individual worker in employment can file proceedings in the labour Court under Section 213 without there being an industrial dispute, therefore, invariably has to be in the positive with the further clarification that in doing so such individual worker and employee is clearly at liberty to decide in favour of a Section 213 application in preference to submitting to a Section 33 procedure should (s)he choose to do so. This Court finds in this regard that of the forty-two Respondents before us, being forty-two individual plaintiffs before the labour Court, all but one i.e., the Respondent in Writ Petition No. 8327 of 2012, filed their individual Section 213 applications well within the period of their contractual employment and, resultantly, the labour Court aptly and justly found jurisdiction to entertain the same. Mr. Hassan M.S. Azim, the learned Advocate for the Respondents, submits with regard to the scenario in Writ Petition No. 8327 of 2012 that the fact of the submission by the Respondent in that case of a Section 213 application beyond the period of contractual employment, though not expressly borne out by the documents on record, however, accurately reflects the facts on the ground as per the instructions received by Mr. Azim from his client.

27. Given the above facts and circumstances, there is found no reason to interfere with the Impugned Orders in the forty-one Applications as above identified given that the labour Court is not found to have acted perversely or arbitrarily or committed any error of law in assuming jurisdiction under Section 213 of the act. As for Writ Petition No. 8327 of 2012, and given our understanding of the law reflected in the act as based on the EL(SO)A and the IRO, it is this Court’s finding that the Respondent as plaintiff before the labour Court would have been better served by actively pursuing the procedure as laid down in Section 33 of the act as the only avenue open to him to pursue a claim.

28. The Respondents in these cases have also highlighted the fact that the Petitioner in pursuing the labour Court against their respective plaints upon a misconception of the law framed its various applications to that end by reference to Order 7, Rule 11 of the Code which cannot be resorted to in relation to proceedings before the labour Court. The determinants of the extent of the labour Court’s authority and procedure, it is argued by Mr. Azim, are expressly stipulated in Section 216 of the act which presently reads thus:

“২১৬। অপরাধ বিচার ছাড়া অন্য কোন বিষয়ে শ্রম আদালতের ক্ষমতা ও কার্যক্রম- (১) অপরাধ ব্যতীত এই আইনের অধীন অন্য কোন বিষয়, প্রশ্ন বা বিরোধের বিচার ও নিষ্পত্তির উদ্দেশ্যে, শ্রম আদালত একটি দেওয়ানী আদালত বলিয়া গণ্য হইবে এবং দেওয়ানী কার্যবিধির অধীন দেওয়ানী আদালতের উপর ন্যস্ত সকল ক্ষমতা নিম্নবর্ণিত ক্ষমতাসমহ, শ্রম আদালতেরও থাকিবে।”

29. Section 216(1) deems, therefore, for the purposes of adjudicating and determining any matter, question or dispute, except any offence under the act, a labour Court to be a civil court with powers vested in such Court under the Code including powers enumerated in Clauses (ka) to (chha) therein. It is noted that Section 216(1) is itself derived from Section 36(2) of the IRO which incidentally listed far few powers than those presently enumerated under Section 216(1).

30. While superficially Section 216(1) in its formulation, may read as being inclusive and not being exhaustive in enumerating specific powers exercisable by a labour Court, the better view, this Court finds, is reflected in understanding the true purport of the legal fiction that constitutes the substratum of the deeming provision in Section 216. That legal fiction was best explained by Mustafa Kamal, J. in Pubali Bank vs. Chairman, labour Court reported in 44 DLR (AD)(1992), 40. The core issue in that case was whether an adjudication of an industrial dispute or a proceeding for enforcement of any guarantee or right by a labour Court by reference to Sections 34, 36 and 43 of the IRO, though a matter of civil nature, would attract all the powers, under the Code. The Court in the Pubali Bank Case remained focused on the fact of such proceeding before a labour Court not constituting a suit and, therefore, not attracting the wide-ranging powers of a civil court otherwise guaranteed under the Code including those under Order 9 or Order 39, Rule 1 of the Code pertaining to the restraining authority of a court. Mustafa Kamal, J. delved at length into the legal fiction reflected in the deeming provisions of Section 36 of the IRO and its substantive effect. In doing so, he observed that the correct approach to interpreting a deeming clause is to find out the purpose for which such a statutory hypothesis is resorted to in any enactment and, thereby, in understanding the limits of such hypothesis. Accordingly, he observed:

“When the legislature enacts a “deeming” clause, the correct way to interpret the same is to find out for what purpose and upto what extent the legal fiction has been created. It is the function of the Court to find out the limitation of the legal fiction, to delimit its boundaries and not to extend the frontier of legal fiction beyond what has been provided in the statute.”

31. This Court is of the view that such an exercise falls within its authority of enquiry, thereby, enabling it to similarly enquire into and delimit the boundary of that fiction and not accept an interpretation of the ambit of Section 216(1) of the act as offends against the statutory intent. That canon of interpretation, as Mustafa Kamal, J. observed thus, must necessarily put this Court on inquiry that the labour Court is to all intents and purposes a civil court but clothed merely with a limited jurisdiction concomitantly necessitating the exercise of limited procedural powers:

“Its procedural powers are referable to the purpose of its functioning and so much of the procedural powers contained in the Code of Civil Procedure as are necessary to suit the purpose are available to it, nothing more.”

32. Not finding merit in the argument that the word “including’’ in Section 36(2) (equivalent to the word ক্ষমতাসহ in 216(1) of the Act) operated in any way to acquire a connotation of addition or extension of the subject-matter of Section 36(2), Mustafa Kamal, J. found that by reference to the wide powers available under the Code the very fact of specific enumeration of the power of a labour Court in Section 36(2) reflected the legislative intent to clothe that Court with a much narrower ambit of power expressly given. Thus it was found:

“By specific enumeration of powers in clauses (a)-(d) the legislative intent is clear. All the elaborate powers of the Civil Court in deciding a civil dispute, as contained in the Code of Civil Procedure, are not necessary for a labour Court to possess in deciding an industrial dispute. Powers mentioned in clauses (a)-(d) are very elaborate in the Code of Civil Procedure but by specific enumeration of some powers, the labour Court’s powers in respect of the specified powers are limited to the restrictive language of clauses (a)-(d), and not beyond.”

33. This Court finds that the act having indeed travelled beyond Section 36(2) as stood to be considered in the Pubali Bank Case there is resultantly found a greater elaboration of powers in Section 216(1)(ka) to (chha). That notwithstanding, fundamentally, Section 216(1) is not distinguishable from Section 36(2) of the IRO as understood by Mustafa Kamal, J. in that Section 36 is equally a product of a statutory hypothesis with defined limits. Thus, even with its seemingly extended powers, Section 216(1) remains but a provision of specifically enumerated powers reflecting all the more the limited and restrictive operation of Section 216(1) of the act suited solely to the purpose of the functioning of a labour Court. In other words, Clauses (ka) to (chha) of Section 216(1) expressly delimit the boundaries beyond which the labour Court may not travel. Given, therefore, that the authority to provide a ruling under Order 7, Rule 11 of the Code is not found expressly enumerated in Section 216(1) and, thereby, not reserved to the labour Court, the necessary conclusion, therefore, has to be that such authority presently remains beyond the reach of the labour Court. In that regard, this Court finds merit in Mr. Azim’s argument that the labour Court, though not expressly declaring to that effect in any of the Impugned Orders, remained perfectly justified in rejecting the Petitioner’s applications under Order 7, Rule 11 given that no authority fundamentally vests in it to entertain such applications per se. Seized as this Court is as of the forty-two Writ Petitions for the reasons as above enunciated and explained, it is, accordingly, found that in all these cases the Petitioner, Robi Axiata Limited adopted a procedure unknown to the act while seeking to challenge the labour Court’s jurisdiction.

34. It is pertinent to reiterate at this juncture that of these forty-two Writ Petitions, the Respondent in Writ Petition No. 8327 of 2012, stands on a different footing from the other Respondents given that, and as submitted by Mr. Azim, he was possibly out of employment by the time he filed his Section 213 application. That Respondent’s case becomes problematic further in that documents appended to Writ Petition No. 8327 of 2012 appear to have been done so mistakenly in that these bear reference to the contract of employment of another, thereby, not enabling this Court to fully determine upon the substance and merit of this particular Respondent’s case.

35. Given the above, this Court finds no merit and substance in the Rules Nisi issued in Writ Petition Nos. 4720-4723 of 2012, Writ Petition Nos. 8325, 8326 of 2012 and 8328 to 8362 of 2012. In the result, in all these Writ Petitions the Rules Nisi are discharged. With regard to Writ Petition No. 8327 of 2012, given the fact that there was no avenue open to the Petitioner to challenge the jurisdiction of the labour Court by invoking Order 7, Rule 11 of the Code, but given also the fact of the dearth of relevant documents on record for this Rule to be substantively disposed of either way by this Court, the Rule Nisi in this case resultantly stands disposed of with the direction upon the labour Court to dispose of the Respondent’s plaint within a period of 6(six) months from the date of receipt of a certified copy of this Judgment and Order by framing an issue regarding the very maintainability of his application. With regard to the other plaints, and given the specific points of enquiry and disposal of these other Rules Nisi, it will now remain open to the labour Court to proceed to duly dispose of the plaints in the various cases also within the period of 06(six) months from the date of receipt of a certified copy of this Judgment and Order, thereby, determining substantively the question whether all the plaintiffs before the labour Court in the facts and circumstances and under the law have acquired the status of permanent workers notwithstanding their initial contractual employment variously as temporary workers.

36. All the ad interim Orders of Stay as initially granted are necessarily recalled and vacated.

37. There are no Orders as to costs.

Syed A.B. Mahmudul Huq, J.

I agree.