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Rupali Bank Ltd. Vs. Government of the People's Republic of Bangladesh and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 11252 of 2013

Decided On: 13.04.2015

Appellants: Rupali Bank Ltd. Vs. Respondent: Government of the People’s Republic of Bangladesh and Ors.

Hon’ble Judges/Coram: Tariq ul Hakim and A.K.M. Shahidul Huq, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: K.M. Zabir, Advocate

JUDGMENT

A.K.M. Shahidul Huq, J.

  1. Rule Nisi has been issued under Article 102 of the Constitution of the People’s Republic of Bangladesh at the instance of the writ petitioner calling upon the respondents to show cause as to why the impugned judgment and order dated 4-9-2013 passed by the labour Appellate Tribunal, Dhaka in Appeal No. 217 of 2012 analogous with Appeal No. 383 and 616 of 2011 dismissing the appeal by affirming the judgment and order dated 3-6-2012 passed by the 2nd labour Court Dhaka in BLL Case No. 275 of 2009 allowing the case and directing the petitioner Bank to give all facilities of respondent No. 4 as permanent worker should not be declared to have been passed without lawful authority and of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper. The facts relevant for disposal of the writ petition is that Rupali Bank constituted with the former Muslim Commercial Bank, the Standard Bank and the Australasia Bank under the Bangladesh Bank (Nationalization) Order 1972 (PO 26 of 1972) and had been functioning as one of the nationalized Commercial Banks of the country till the end of 1986 when under the Bangladesh Government’s denationalization policy the petitioner was denationalized and became Rupali Bank Ltd., and was incorporated on 13-12-1986 as a limited company under the Companies act, 1913. The government at present owns 91.19% shares of said Bank which was 94.5% as on 10-6-1996 and overall management acts and proceedings of Rupali Bank Limited are fully controlled by the government of Bangladesh through their nominated Board of Directors.

  2. The respondent No. 4 filed an application being BLL Case No. 275 of 2009 under section 33(3) of the Bangladesh labour act, 2006 for direction upon the second party petitioner to confirm the 1st party respondent No. 4 as permanent worker and also to provide all the facilities of a permanent worker to him.

  3. The case of the respondent No. 4 in short, is that, he was appointed as a Godown Chokider under the 2nd party petitioner on 18-9-1979. Now the salary of the first party respondent No. 4 was 2,500 in total. The petitioner is performing his duties with full satisfaction of the 2 petitioner. But he is not getting provident fund, advance and house building loan like other permanent workers. The respondent No. 4 used to get salary from the Bank through his staff Account No. 2038792 and he is performing other jobs into the bank and since he has not been given the status of permanent worker, he has brought the present case before the 2 labour Court Dhaka.

  4. The 2 party petitioner contested the case by filing written statement denying all the material allegations but in the plaint contending inter alia that the post of the 1 party respondent No. 4 was appointed as Godown Chokider which was created against CC Pledge Loan of the Borrower and accordingly he was appointed by the Borrower of the Bank FK Leader Complex Limited as borrower used to give him monthly consolidated salary. The respondent No. 4 getting his salary from FK Leader Complex Limited through the bank and salary statement has submitted accordingly. The respondent No. 4 is not the employee of the petitioner, he is not entitled to get any declaration as permanent worker and, as such, the case is liable to be dismissed.

  5. It is stated that the respondent No. 3 most illegally allowed the BLL Case No. 275 of 2009 by his judgment and order dated 3-6-2012 and directed to treat the respondent No. 4 Md. Abdul Aziz as a permanent worker after completion of his probation period and directed to give all arrear benefits of the permanent worker within 30 days from the date of order.

  6. The 2 party petitioner preferred Appeal No. 217 of 2012 along with 2 other appeals before the labour Appellate Tribunal, Dhaka. The Appellate Tribunal heard the appeal along with 2 other cases of Dhaka, Chittagong and Rajshahi Division of similar nature and learned Appellate Tribunal; respondent No. 2 dismissed the 3 appeals and upheld the judgment and order of labour Court below.

  7. It is stated that the Rupali Bank was a nationalized Government Bank till 1986 and thereafter was incorporated as a public limited company. The Government at present owns 91.19% shares and overall management, acts and proceedings are fully controlled by the government of Bangladesh through their nominated Board of Directors. Permanent employees are appointed by the Board of Directors of the Bank as per service regulation of 1981 and they are getting salary service benefits as per government rules. Ministry of Finance, Banking Division vide Memo No.অম/ব্যাবি/নীতি/৭/৯৭/৯৫- ব্যাংক/২/১০৮, তারিখ ১০-৬- government has issued a circular stating Rupali Bank owned 94.5% share of Bank. The Bank authority confirmed issuing a letter regarding pensionable job of the staff and officer of the Bank like government employees.

  8. The petitioner has got no other alternative, efficacious, speedy, remedy under Article 102(2) of the Constitution of the People’s Republic of Bangladesh.

  9. Mr. K.M. Zabir, the learned Advocate appearing for the petitioner submits that the learned labour Court as well as labour Appellate Tribunal failed to understand that the petitioner Bank is within the ambit of section 1(4) Ka and Jha of Bangladesh labour Law, 2006 as such, this case is not maintainable.

  10. He also submits that in the facts and circumstances of the case, the learned Appellate Tribunal and labour Court ought to have framed an issue as to whether the respondent is the worker of the Bank or that of the borrower and in not doing so the learned labour Court arrived at an erroneous decision which is not sustainable in law.

  11. He further submits that in the Organogram, Human Resources Policy, 2008 of Rupali Bank Ltd. approved by the Government there are no permanent post of godown keeper in Bank, which they know very well and that their services are temporary in nature and the scheme itself is a temporary phenomenon and, as such, there is no scope to absorbed thousand of such workers in the permanent roll of the Bank and in that case a Government Bank will become a losing concern in meeting such undesirable expenses, although, services of this category of workers are not dispensable for our Bank.

  12. He also submits that the respondent having been appointed purely on temporary basis by the borrower himself for his Godown has got no necessity of Bank but the learned labour Court acted illegally and without jurisdiction in holding the BLL Case maintainable.

  13. He further submits that the learned labour Court has failed to understand the procedure of loan on pledge of goods in its correct perspective which is a purely temporary phenomenon and terminates with the liquidation of loan by the borrowers resulting in the determination of all employment’s connected with keeping of the pledged goods and thus section 4(1)(d) of the Bangladesh labour Law, 2006 is applicable to the respondent as being temporary worker against temporary job and section 4(1)(f) of the said act is not applicable to him.

  14. He also submits that the member of temporary post like Godown Keeper/Chokider increase/decreases depending on the number of pledge loans sanctioned and such engagement normally increases or decreases with the adjustment of new sanction of the respective loan as was found by their lordships in analogous judgment dated 2-8-2001 passed in Writ Petition No. 1303 of 1996, 1657 of 1998, 4092 of 1998 and 4186 of 1998 and, as such, there is no scope to treat the respondent as permanent worker.

  15. He further submits that the learned Appellate Tribunal and labour Court totally misconceived the procedure of loan on pledge of goods which implies that borrower as owner of the goods is liable to bear all costs and expenses associated with the godown for the keeping of the goods in his godown for certain period, until the goods are sold out or the loan liability is fully adjusted. During the pledge, salary of godown staff insurance etc are paid by the borrower or from his account and the respondent therefore, is an employee of the borrower and the learned labour Court erred in holding that the respondent is an employee of the Bank and the judgment and order is therefore, is liable to be rejected.

  16. He also submits that learned Appellate Tribunal and labour Court erred in not holding that the respondent is an employee of the borrower under the pledge agreement and not of the lending bank.

  17. He further submits that on the basis of materials and evidence on record the learned labour Court ought to have found that since the respondent has never worked in the bank’s godown but worked in the godown of the borrower and had been paid by borrower by debiting his account, the respondent is an employee of the borrower and not of the bank and, as such, the judgment and order is illegal and declared without lawful authority and is of no legal effect.

  18. He also submits that as per pledge agreement since employment is co-extensive with the loan and terminates with the closure of the loan account, the learned labour Court erred in not holding that the employment of the respondent is also temporary and, as such, the judgment and order is illegal and declared without any lawful authority and is of no legal effect.

  19. He further submits that the learned Appellate Tribunal and labour Court has totally failed to concentrate correctly and judiciously with regard to the relevant circumstances, laws and facts on record leading to serious mis-carriage of justice and, as such, the judgment and order is illegal and declared without lawful authority and is of no legal effect.

  20. He lastly submits that learned Appellate Tribunal and labour Court failed to appreciate that the BLL Case is defective for mis-joinder and/or for non-joinder of parties in as much as borrower was a necessary party and Rupali Bank Limited was neither necessary party nor a proper party in the case and, as such, the judgment and order is illegal and declared to have been passed without lawful authority and is of no legal effect.

  21. Mr. Khan Tipu Sultan, the learned Advocate appearing on behalf of the respondent No. 4 contested the rule by filing affidavit-in-opposition. The learned Advocate appearing for the respondent No. 4 at the very outset submits that writ petition is not maintainable and, as such, the rule is liable to be discharged with cost.

  22. He further submits that the labour Appellate Tribunal has rightly come to its decision by upholding the judgment and order of the learned Chairman of the 2 labour Court, Dhaka BLL Case No. 275 of 2009 allowing the case and directing the petitioner Bank to give all facilities of the respondent No. 4 as permanent worker which decided to give permanency to the 1 party in his respective post and position from the date of joining and further ordered the second party and the instant petitioner to provide all due wages along with other service benefit as afforded to other permanent employees within 30 days from the date of the judgment.

  23. He also submits that the labour Appellate Tribunal was right, in its finding that since the respondent No. 4 having been appointed by the petitioner back vide appointment letter dated 12-1-1981 and since he has not been released from contract service after completion of his probation period he is entitled to be made permanent in his post and position along with all wages benefits allowed to a permanent worker as per operation of law and hence the instant petition is liable to be rejected and the rule be discharged.

  24. He further submits that the lawful rights of the godown keepers, chokiders, clerk of the Rupali Bank Limited who has been unduly kept as temporary workers for years was finally recognized by the Hon’ble Appellate Division in its judgment and orders in Civil Petition for Leave to Appeal Nos. 78-86 of 2006, 609-610 of 2006, 826 of 2006, 1721-1724 of 2006, 1313-1336 of 2006 and 265-367 of 2007.

  25. He lastly submits that settled principles of law has been elaborated in the case of Ayesha Salahuddin vs. Chairman, Second labour Court reported in 32 DLR (AD) 68 states that findings of the labour Court cannot be interfered with under writ jurisdiction if the same is not wholly without jurisdiction or in excess of its jurisdiction or in violation of the principles of natural justice or as refusal to exercise jurisdiction vested in them or where there is an error apparent on the face of the record. Since the impugned judgment suffers from none of these infirmities the instant petition is liable to be rejected and the rule be discharged.

  26. We have heard the learned Advocates appearing for the petitioner and also the learned Advocate appearing for the respondents and at length perused the application filed under Article 102 of the Constitution of the Peoples Republic of Bangladesh and also the affidavit-in-opposition filed by respondent No. 4.

  27. Admittedly, 1st parties were appointed on different dates from 18-9-1979 by the 2nd party as Godown Guard/Chokider in different Godowns and they served in different capacities as Godown Chokider/Guard/Peon of the bank etc. for a period of 30 years and they repeatedly requested the bank to make him permanent which was recommended by the Branch Manager but in vain and finally he served the grievance petition and filed the case.

  28. In these three cases the learned Advocate appearing for the appellant mainly argued on point of maintainability that the cases are not maintainable under section 33(3) of the Ain, 2006.

  29. Section 33(1) of Bangladesh Srama Ain, 2006 runs as under:

“৩৩। অভিযোগ পদ্ধতি।-(১) লে-অফ, ছাটাই, ডিসচার্জ, বরখাস্ত, অপসারন অথবা অন্য যে কোন কারনে 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 কারন অবহিত হওয়ার তারিখ হইতে ত্রিশ দিনের মধ্যে অভিযোগটি লিখিত আকারে রেজিস্ট্রি ডাকযোগে মালিকের নিকট পেশ করিবেন।

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

  1. On proper scrutiny of this section I do not find any substance in the submission that the case is not maintainable under section 33(3) because 2 parties are in service and moreover (অথবা অন্য যে কোন কারনে চাকুরীর অবসান হইয়াছে এরূপ শ্রমিকসহ যে কোন শ্রমিকের)

sub-section (1) of section 33 includes any worker irrespective of whether he is in service or not he decision produced by the learned Advocate passed by this Tribunal is not applicable in these cases.

  1. Section 4 of the Bangladesh Srama Ain, 2006 runs as follows:

(৪) কোন শ্রমিককে সাময়িক শ্রমিক বলা হইবে যদি কোন প্রতিষ্ঠানে তাহার নিয়োগ সাময়িক ধরনের হয়।
(৫) কোন শ্রমিককে অস্থায়ী বলা হইবে যদি কোন প্রতিষ্ঠানে তাহার নিয়োগ এমন কোন কাজের জন্য হয় যাহা একান্তভাবে অস্থায়ী ধরনের এবং যাহা সীমিত সময়ের মধ্যে সম্পন্ন হওয়ার সম্ভাবনা থাকে।
(৬) কোন শ্রমিককে শিক্ষানবীশ শ্রমিক বলা হইবে যদি কোন প্রতিষ্ঠানের কোন স্থায়ী পদে তাহাকে আপাতত নিয়োগ করা হয় এবং তাহার শিক্ষানবীসকাল সমাপ্ত না হইয়া থাকে।
(৭) কোন শ্রমিককে স্থায়ী শ্রমিক বলা হইবে যদি কোন প্রতিষ্ঠানে তাহাকে স্থায়ীভাবে নিযুক্ত করা হয়, অথবা প্রতিষ্ঠানে তিনি তাহার শিক্ষানবীসকাল সন্তোষজনক- ভাবে সমাপ্ত করিয়া থাকেন।
(৮) কেরানী সংক্রান্ত কাজে নিযুক্ত কোন শ্রমিকের শিক্ষানবিসকাল হইবে ছয় মাস এবং অন্যান্য শ্রমিকের জন্য এই সময় হইবে তিন মাস।
তবে শর্ত থাকে যে, একজন দক্ষ শ্রমিকের ক্ষেত্রে তাহার শিক্ষানবিসকাল আরও তিন মাস বৃদ্ধি করা যাইবে যদি কোন কারনে প্রথম তিন মাস শিক্ষানবিসীকালে তাহার কাজের মান নির্ণয় করা সম্ভব না হয়।
(৯) যদি কোন স্থায়ী শ্রমিক কোন নতুন পদে শিক্ষানবিস হিসাবে নিযুক্ত হন, তাহা হইলে তাহার শিক্ষানবিসীকালে যে কোন সময় তাহাকে পূর্বের স্থায়ী পদে ফেরত আনা হইবে।

  1. Initially an appointment to such or any posts may be made on temporary basis but to let the employee to continue to the said post of permanent nature for years together without any break and fault on temporary basis is not acceptable in law and is against the principle of natural justice. This is nothing but to deprive the worker of his legal wage and financial benefits which is not allowed in law.

  2. On discussion of evidence and materials on record of the case and the provision of law we find reasons to agree with the findings of the learned Chairman of the 1st labour Court, Dhaka and the labour Appellate Tribunal committed no wrong or illegality in affirming the judgment of the 1st labour Court, Dhaka as such, the impugned judgment and order of the Appellate Tribunal does not call for any interference. In the result, the Rule is discharged, without any order as to cost. The judgment and order dated 4-9-2013 passed by the labour Appellate Tribunal, Dhaka in Appeal No. 27 of 2012 (analogous with Appeal No. 383 and 616 of 2011) dismissing the appeal by affirming and upholding the judgment and order dated 3-6-2012 passed by 2nd labour Court, Dhaka in BLL Case No. 275 of 2009 allowing the case and directing the petitioner bank to give all facilities to respondent No. 4 as permanent worker is hereby affirmed.