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Sadharan Bima Corporation Vs. Md. Akbar Hossain and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 4350-4417 of 2015, 4419-4428 of 2015, 4430-4476 of 2015, 4607-4691 of 2015 and 4856-4893 of 2015

Decided On: 02.06.2016

Appellants: Sadharan Bima Corporation Vs. Respondent: Md. Akbar Hossain and Ors.

Hon’ble Judges/Coram: Md. Ashfaqul Islam and Zafar Ahmed, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Mahbubey Alam, Senior Counsel and Md. Ekramul Hoq, Advocate

For Respondents/Defendant: Shafique Ahmed, Senior Counsel and Faruque Alamgir Chowdhury, Advocate

JUDGMENT

Zafar Ahmed, J.

  1. Since the subject matter of all the Rules Nisi issued under Article 102 of the Constitution in these 248 writ petitions is same and similar question of law is involved, those are heard together and disposed of by this single judgment.

  2. In all the writ petitions, the petitioner Sadharan Bima Corporation (in snort, ’the Corporation’) has challenged the legality of the judgment and order dated 27.01.2015 passed by the labour Appellate Tribunal, Dhaka in Appeal Nos. 311-545, 40-41, 170-182 of 2014 which were heard analogously and disposed of by a single judgment dismissing the appeals and affirming the judgments and orders dated 10.02.2014 passed by the 1st labour Court, Chittagong in IR Case Nos. 47-48 of 2012, judgment and orders dated 18.03.2014 passed by the 2nd labour Court, Chittagong m IR Case Nos. 1-4, 6, 8, 10 and 17-22 of 2012, judgment and orders dated 04.05.2014 passed by the 2nd labour Court, Dhaka in BLL Case Nos. 200, 213-214, 218, 237, 240, 246, 280 of 2011, 399-400, 403-404, 406, 411, 414-417, 419-420, 422, 424, 429, 432, 434-435,437-438, 440-441, 450, 453 455-456, 458-461, 464-465, 467-469, 472-474, 476-477, 479-480, 489-491, 496-498, 501-503, 506-508, 510-213, 516, 518, 521-522, 525-526, 528-530, 533, 535-536, 539, 541-542, 545, 450, 552-553, 557-559, 562-567, 569-571, 573-574, 576, 579, 581, 583, 586-587, 1238 of 2012 and 1142 of 2013, judgment and orders dated 04.05.2014 passed by the 2nd labour Court, Dhaka in BLL Case Nos. 209-210, 397, 401-402, 405, 407-410, 412-413, 418, 421, 423, 425-426, 428, 430-431, 433, 436, 439, 442, 444-449, 451, 457, 463, 466, 470, 475, 478, 483, 485, 487, 493-496, 499-500, 504-405, 509, 517, 520, 523-524, 531-532, 537,540, 543-544, 547, 549, 551, 555, 568, 572, 577-578, 580, 582, 584-585, 588-589, 1233 of 2012 and 1143 of 2013 and judgment and orders dated 08.05.2014 passed by the 2nd labour Court, Dhaka in BLL Case Nos. 159-208 of 2012.

  3. The respondent No. 1 of each of the writ petitions as 1st party filed separate BLL Cases and IR Cases in the 2nd labour Court, Dhaka, 1st labour Court, Chittagong and 2nd labour Court, Chittagong respectively against the Sadharan Bima Corporation as 2nd party and other offices of the Corporation under section 213 of the Bangladesh labour act, 2006 (in short, ’the act, 2006’) stating inter alia that they were appointed by the Corporation in between 1997 to 2013 on different dates, in different posts. They have been continuing their services till now without any break. They have successfully completed 3 months/ 6 months probationary period as the case may be, as prescribed under section 4 of the act, 2006 and they are in continuous service of the Corporation. They repeatedly requested the authority verbally and in writing to make them permanent but, without any result. Hence, they filed the cases praying for a direction upon the Corporation to make them permanent from the date of their appointment and also for payment of arrear salary and other benefits.

  4. Sadharan Bima Corporation as 2nd party contested all the cases by filing written statements contending that the cases are not maintainable in its present form and manner. The cases are barred by limitation and also bad for defect of parties. It further stated that the Corporation is purely a Government Organization and as such, the cases are not maintainable in the labour Court. The 1st parties continued their service in the 2nd party establishment purely on daily casual basis and the Corporation did not issue any appointment letter in favour of the 1st parties. The Corporation prayed for dismissal of the cases.

  5. The labour Courts allowed the respective BLL and IR cases. Being aggrieved by the judgments and orders passed by the labour Courts, the Sadharan Bima Corporation preferred all the appeals before the labour Appellate Tribunal, Dhaka which were heard analogously and disposed of by a single judgment dismissing the same. Challenging the same, the Corporation has filed the instant writ petitions.

  6. In respect of the factual matrix of the claim of the respondent no. 1 of each of the writ petitions, who filed the respective BLL and IR cases, the labour Appellate Tribunal observed that,

“Admittedly, the respondents were appointed as IDA cum Typist by the Corporation in between 1997 to 2013 and they are in continuous service of the establishment for a long period. It further appears that the respondents were paid by the Corporation like permanent workers.”

  1. The Appellate Tribunal discussed the case of Managing Director, Rupali Bank Limited and others vs. Chairman, First labour Court, Dhaka and others 46 DLR 143 and also referred to section 5 of the act, 2006 and observed that,

“Admittedly, the Corporation did not issue any appointment letter to any category of its employees which is a gross violation of the labour law and it is punishable offence (Under lining is done by me). On careful sifting of evidence it became clear that the Respondents were appointed on the basis of note sheets of the Corporation.

It further appears from the cross examination of DW. 1. Biplob Das, Deputy Manager (Admin) of the Corporation that there is Trade Union in the Corporation and 79 employees including one Rita Rani, employees of the same class like the instant litigants were made permanent by the order of the Court. It may be mentioned here that the case of Rita Rani was decided by the High Court Division In favour of her which was maintained by the Appellate Division.”

  1. Finally, the Appellate Tribunal refers to section 4(7)(8) of the labour act, 2006 and concludes its observation thus,

“The law itself provides legal right to this Respondents to be treated as permanent workers/employees, as they have completed their probation period of service and admittedly the same class of employees were made permanent, though by the order of the Court.

In view of the aforesaid decision of the Higher Courts of the country, clear provision of the Bangladesh labour act, 2006 and the relevant facts of the cases in question, there is no place of ambiguating [sic] to hold that the Respondents are legally entitled to be treated as permanent workers of the Corporation and the courts below committed no illegality in allowing the cases on contest.

Hence the judgments and orders call for no interference and the appeals are liable to be dismissed.

In the result all the appeals are dismissed. The impugned judgments and orders passed by the labour Courts below are hereby affirmed.”

  1. Mr. Mahbubey Alam, the learned Senior Counsel for the petitioner Sadharan Bima Corporation, submits that both the labour Appellate Tribunal and the labour Courts failed to consider that the Sadharan Bima Corporation being established under the Insurance Corporations act, 1973 (Act No. VI of 1973) and having its own Employees Regulations, 1992 which apply to its employees, the Corporation is a body corporate under the Government and thus, it being purely a Government organization, the labour act, 2006 does neither apply to the Corporation nor to its employees as per provisions contained in section 1(4) of the act, 2006.

  2. The learned Senior Counsel next argues that the 1st parties, who filed the respective cases, do not come within the definition of labour as given in section 2(65) of the act, 2006 and as such the act does not apply to the cases.

  3. Mr. Shafique Ahmed, the learned Senior Counsel appearing for the respondent No. 1 of all the writ petitions, on the other hand, submits that the Corporation is not an establishment under the Government. labour act, 2006 applies to the cases. In support of the argument, Mr. Ahmed refers to various provisions of the act, 2006, Insurance Corporations act, 1973 and the Constitution.

  4. Rebutting the argument of Mr. Mahbubey Alam that these respondents are not workers, Mr. Shafique Ahmed submits that the respective labour Courts, upon taking oral and documentary evidences from both sides and considering those, found that they are workers within the meaning of section 2(65) of the labour act, 2006. The Appellate Tribunal also came to the same conclusion upon assessing the evidences. Therefore, there is no scope to raise the issue in judicial review. Mr. Ahmed prays for discharge of the Rules.

  5. We have heard the learned Advocates of both sides and perused the materials on record.

  6. It appears from the judgment passed by the labour Appellate Tribunal that it was argued before this forum that the Sadharan Bima Corporation being a purely Government establishment, labour Court has no jurisdiction to entertain cases filed against it. However, we note that this argument was not addressed by the Appellate Tribunal. Mr. Mahbubey Alam points out that this issue being a question of law must be resolved.

  7. The issue raised by Mr. Mahbubey Alam poses the question- whether the Sadharan Bima Corporation is an office of or under the Government as contemplated in section 1(4)(a) of the labour act, 2006 and/or whether the ouster provisions contained in section 1(4)(j) of the act shall apply to the workers of the Corporation. A positive answer shall have the effect of rendering the proceedings of the cases a nullity as being without jurisdiction. A negative answer, on the other hand, means the labour Courts proceeded with the cases having jurisdiction.

  8. The examination of the issue requires us to take a brief look at the creation of the Corporation and its legal structure. Section 4(1) of the Insurance Corporations act, 1973 (Act No. VI of 1973) created two Corporations namely the Jiban Bima Corporation and the Sadharan Bima Corporation (the writ petitioner). Section 4(2) of the act, 1973 states, that,

“Each Corporation shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this act. to acquire, hold and dispose of property, both movable and shall by its name sue and be sued.”

  1. Section 15 of the act, 1973 deals with appointment of officers and employees of the Corporation. The relevant portion of section 15 runs thus:

15.(1) Each Corporation may appoint such officers and other employees as it considers necessary for the efficient performance of its functions on such terms and conditions as it may determine.

(2) …

(3) …

(4) …

(5) …

(6) Notwithstanding anything contained in this act, a Corporation shall not determine the pay scales of the different classes of its officers and other employees without the previous approval of the Government."

  1. Section 1(4) of the labour act, 2006 provides a list of establishments and workers to whom the act shall not apply. For the purpose of proper and effective adjudication of the issue in hand, the relevant provisions are contained section 1(4) (a) and (j). Under the said provisions, the act shall not apply to ‘offices of or under the Government’(সরকার বা সরকারের অধীনস্ত কোনো অফিস) and to workers whose recruitments and terms and conditions of service are governed by laws or rules made under Articles 62, 79, 113 or 133 of the Constitution, except, for the purposes of chapters XII, XIII and XIV workers employed by the- (i) Railway Department; (ii) Posts, Telegraph and Telephone Department; (iii) Roads and Highways Department; (iv) Public works Department (v) Public Health Engineering Department and (vi) Bangladesh Government press.

  2. Articles 62, 79, 113 and 133 of the Constitution, which have been mentioned in the ouster provisions contained in section 1(4) (j) of the labour act, relate to ‘recruitment’ etc., of defence services’, ‘Secretariat of Parliament’, ‘staff of Supreme Court’ and ‘appointment and conditions of service of persons in the service of the Republic ’ respectively.

  3. Article 152 of the Constitution defines “service of the Republic” to mean “any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic.”

  4. Along with definition of the ‘service of the Republic’, Article 152 of the Constitution has also defined “statutory public authority” which includes ‘Corporation’. Article 135 of the Constitution deals with matters relating to dismissal, etc. of civilian public officers in the service of the Republic.

  5. The expression ‘Government’ has not been defined in the Constitution. The definition of Government given in section 3(21) of the General Clauses act, 1897 is of no assistance. Generally, ‘Government’ means an organization through which a body of people exercise political authority, the machinery by which sovereign power is expressed. In this sense, the term ‘Government’ refers collectively to the political organs of a country regardless of their function or level, and regardless of the subject matter they deal with (Black’s Law Dictionary, 9th Ed).

  6. The expression ‘Government’ does not refer to the executive government only. It has been used in the generic sense to cover all departments of the Government of Bangladesh and the judicial officers and Magistrates exercising judicial functions fall within the definition of the service of the Republic (Mahmudul Islam: Constitutional Law of Bangladesh, 3rd Ed. Para 6.15).

  7. In the case of Bangladesh Small Industries Corporation, Dacca vs. Mahbub Hossain Chowdhury 29 DLR (SC) 41, some important questions relating to terms and conditions of service under Statutory Corporation were considered. Judgment was delivered on 07.05.1976 by Syed A.B. Mahmud Hussain C.J. At paragraph 13 it was observed,

“We therefore find that a public corporation is a hybrid organism showing some of the features of a Government Department and some of a business company and standing outside the ordinary framework of Central and Local Government…. Its purpose is to enable some industries or social service body to run for the benefit of the public but without the constraint of the parliamentary investigation and criticism, to which it would be subject to if it were merely a Government Department like the Post Office.”

  1. At paragraph 15 and 16 of the judgment, it has been observed,
  1. “It has been strenuously urged that various Presidential Orders and enactments such as President’s Order No. 9 of 1972 President’s Order No. 14 of 1972, President’s Order No. 67 of 1972. President’s Order No. 93 of 1972, act 12 of 1974 and act 38 of 1974 have clothed such employees with status of ‘Government Servants’ or “Public Servant’s and that such a status perforce entitles them to the benefit of the said constitutional guarantee. It should however be observed the status of a ‘Public Servant’ or ‘a Government Servant’ has not been conferred generally upon an employee of a Statutory Corporation by the said Acts or Presidential Orders but have been so done for the purposes of the particular enactments.

    16. It would, however, be noticed that there is no reference to “Government Servant” or ‘Public Servant’ in Article 135. It is a person ‘holding a civil post in the service of the Republic’ who is entitled to the protection provided in the said Article, and ’the service of the Republic’ has been defined in Article 152 of the Constitution as “any service, post or office, whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic’. Article 135 contemplates therefore, such service, post or office as is concerned with the governance or administration of Bangladesh as a State, and employees of Statutory Corporation which are set up by a modem State to carry out certain objects outside its traditional administrative responsibility can hardly come within the scope of the said definition.

(underlining is ours)

  1. The Lord Chief Justice was not oblivious of the legal proposition that Corporation being included in the definition of ‘Local Authority’ as given in the General Clauses act, it assumes a public character. It was observed at paragraph 99 that,

“Along with it is to be noted that by the provision of General Clauses act, this statutory Corporation is deemed to be a local authority, Local authority connotes a kind of public administration. Again by various legislative measures set out above the employee of statutory corporations have sometimes been described as Government servants and sometimes as public servants. No doubt each of these legislative enactments is limited to the purpose of its own. nonetheless it cannot be denied that the cumulative effect of these legislative measure have at least clothed them with some public character.”

  1. The ratio laid down in the case reported in 29 DLR (SC) 41 was referred to and applied in the cases reported in 31 DLR 199 and 46 DLR (AD) 1 wherein Bangladesh Biman and Bangladesh Bank respectively were parties. In another case reported in 38 DLR (AD) 81 it has been held that the fact that certain benefits enjoyed by the Government servants have been made available to the bank employees does not confer upon them the status of Government servants.

  2. The above discussions unequivocally suggest that the petitioner Sadharan Bima Corporation, which has been established under section 4 of the Insurance Corporations act, 1973, is neither an office of or under the Government nor Article 133 of the Constitution does apply to it. Hence, the ouster provisions contained in section 1(4) of the labour act, 2006 do not apply to the petitioner Corporation or its workers. In other words, the act, 2006 applies to the Corporation and to its workers in full force.

  3. The issue as to the applicability of the labour act can also be looked into from a different perspective. Under section 7 of the Insurance Corporations act, 1973 the Government appoints the Managing Director and other Directors of the Corporation. Under section 15 of the act, the Corporation is the appointing authority of its officers and employees. In the instant writ petitioners, all the workers, who are the respective respondent no. 1 of each of the writ petitioners, have been employed by the Corporation. There is no requirement of law to get prior or post approval/ sanction of the Government in respect of the appointments. Then, how can it be said that the Corporation is an office of or under the Government and its employees are covered by Article 133 of the Constitution which applies to the persons who are in the service of the Republic? The law recognises the separate legal character and entity of the Corporation which is distinct from that of the Government. At the same time, the Corporation is a public authority, but this does not take away its distinct legal entity. The fact that the authorised Capital of the petitioner Corporation is subscribed by the Government under section 5 of the act, 1973 and hence, it is owned by the Government does not make any difference, inasmuch as various provisions of the labour act make the act applicable to workers of the Government owned or controlled enterprises.

  4. It has been argued that since the Corporation has its own service regulations determining the terms and conditions of the service of its employees, the labour act has no manner of application to the instant cases. This argument seems to be based on section 3(1) and (5) of the labour act. The relevant portions of the section state,

“3. Conditions of employment:- (i) In every establishment employment of workers and other manors incidental thereto shall be regulated in accordance with the provisions of this chapter.
Provided that any establishment may have its own rules regulating employment of workers, but no such rules shall be less favourable to any worker than the provisions of this chapter.
(2) …
(3) …
(4) …
(5) Nothing provided in sub-section (2) shall apply to an establishment which is owned by or under management or control of the Government.”

  1. In our view, section 3(1) and (5) of the labour act has given a privilege to the Government owned, managed or controlled establishment, but has no way made the act non-applicable to it so long as the same comes within the definition of ’establishment’ given in section 2(31) of the act. Establishment includes commercial establishment which also includes insurance Company (section 2(41)). The Sadharan Bima Corporation is, no doubt, a commercial establishment which is apparent from the language employed in section 12(1)(b) of the Insurance Corporations act, 1973 to the effect that, “it shall be function of the Sadharan Bima Corporation to carry on all kinds of general insurance and reinsurance business.”

  2. The upshot of the above discussions is that the Sadharan Bima Corporations and its workers are not protected by the ouster provisions contained in section 1(4) of the labour act and consequently, the act applies to the cases in hand.

  3. It has been argued on behalf of the petitioner Corporation that most of the respondent no. 1 of the writ petitions, who had filed the respective cases before the labour Courts, have been serving as ‘Lower Division Assistant cum Typist’ and as per job description, they perform administrative as well as supervisory work and as such, they cannot be treated as worker.

  4. In all the memorandum of appeal filed before the labour Appellate Tribunal by the Corporation, it has been stated that the 1st party is a Worker. However, an attempt has been made to draw a distinction between the casual worker and the temporary worker. Section 4 of the labour act classifies workers into 6 categories which include both casual and temporary workers. It appears from the judgment dated 04.05.2014 passed by the 2nd labour Court, Dhaka in BLL Case No. 400 of 2012 and others that the Court considered the issue as to whether the 1st parties are workers. Upon considering the evidences, both oral and documentary, the Court observed,

“সুতরাং দেখা যায় যে, বাদীপক্ষপণের মত ইতিপূর্বেও সাধারণ বীমা কর্পোরেশনে আও অনেক ব্যক্তিকে সাধারণ বীমা কর্পোরেশনে ক্যাজুয়েল। অস্থায়ী ভিত্তিতে চাকুরী দেওয়া হয় এবং তাহারা পরবর্তীতে বিবাদীদের বিরুদ্ধে আদালতে মামলা করায় আদালত তাহাদের চাকুরী স্থায়ী হওয়ার বৈধ অধিকার আছে বলিয়া তাহাদিগকে স্থায়ী করার নিষিতে আদেশ দেয় এবং যোগদানকাল হইতে সকল বকেয়া বেতন ভাতাদি দেওয়ার জন্যও আদেশ দেওয়ায় উক্ত ব্যক্তিরা স্থায়ী শ্রমিক হিসাবে সাধারণ বীমা কর্পোরেশনে স্থায়ী কর্মচারী হিসাবে চাকুরী করিতেছে এবং বেতন, ভাতাসহ সকল সুযোগ সুবিধা বর্তমানেও ভোগ করিতেছে।”

  1. In the judgment dated 18.03.2014 passed by the 2nd labour Court, Chittagong in IR Case No. 01 of 2012 and others, the Court observed:

“২য় পক্ষের জবানবন্দী অনুযায়ী ১মপক্ষগণ ইত্তড়য়তর জন্তপপ, তাহারা ‘দৈনিক ভিত্তিতে চাকুরী করিতেছেন। তাহাদেরকে স্থায়ী করার সুযোগ নাই। ২য় পক্ষের বিজ্ঞ কৌশলী নিবেদন করেন যে, ১মপক্ষপণ Casual Staff. সাধারণ বীমা কর্পোরেশন একটি সরকারী প্রতিষ্ঠান হওয়ার তাহাদেরকে স্থায়ী করার সুযোগ নাই।

২য় পক্ষের দাখিলকৃত সাধারণ বীমা কর্পোরেশন এর কর্মচারী প্রবিধানমালা ১৯৯২ এর অনুমোদিত পদের তালিকা হইতে দেখা যায়, উহাতে ১ম পক্ষগণের পদ রহিয়াছে। ১ম পক্ষগণ একটি নির্দিষ্ট সেট আপ এর আওতায় দীর্ঘদিন স্থায়ী পদের বিপরীতে চাকুরী করিয়া আসিতেছেন। ১ম পক্ষগণের, লুকাজ নাই, মজুরী নাইল্ল ভিত্তিতে বেতন প্রদান করা হইলেও তাহাদেরকে অস্থায়ী শ্রমিক হিসাবে বিবেচনা না করার কোন কারণ নাই। বাংলাদেশ শ্রম আইন, ২০০৬ এর ৪(১) ধারায় বর্ণিত মতে স্থায়ী পদের বিপরীতে দৈনিক মজুরী ভিত্তিতে শ্রমিক/কর্মচারী নিয়োগের কোন বিধান নাই। বাংলাদেশ শ্রম আইন, ২০০৬ এর ২(৬৫) ধারায় বর্ণিতমতে ১ম পক্ষগণ শ্রমিক সংজ্ঞাভুক্ত। বাংলাদেশ শ্রম আইন, ২০০৬ এর ৪(৮)’ ধারা অনুযায়ী তিন মাস অতিবাহিত হওয়ায় স্বয়ংক্রিয়ভাবে ১মপক্ষপণের চাকুরী স্বাভাবিক নিয়মে স্থায়ী হইয়াছে। ৮/২০১২নং মামলার ২য়পক্ষের জেরার বলেন ১ম পক্ষকে আমাদের প্রতিষ্ঠানের স্বার্থেই রাখা হইয়াছে। ১ম পক্ষ এক নাগাড়ে যোগদান কাল হইতে আজতক চাকুরী করিতেছে। ২য় পক্ষের সাক্ষ্য অনুযায়ী সাধারাণ বীমা কর্পোরেশনে ১ম পক্ষপণের প্রয়োজন আছে বিধায় তাহারা কজ করিতেছেন। "

  1. In view of the above quoted findings and observations made by the labour Courts, we find no substance in the argument that some of the 1st parties-respondent no. 1 of the writ petitions are not workers.

  2. During pendency of the Rules, a supplementary affidavit dated 02.06.2016 was filed on behalf of the petitioner Sadharan Bima Corporation annexing the organogram of the Corporation (Annexure-D) and statistics in respect of vacant posts in the Corporation as on 26.05.2016 (Annexure-E). Mr. Mahbubey Alam, the learned Senior Counsel for the Corporation, referred to these annexure and submits that there are not available vacant posts in the Corporation to make all the respondent no. 1 permanent.

  3. The respondent no. 1 of the writ petitions were appointed as LDA cum Typist, Telephone Operator, MLSS, Peon, Computer Operator, C.C.T.V. Operator, AC Mechanic, Photocopy Operator, Electricians, Security Guard, Malee, Plumber and Sweeper respectively.

  4. It appears from Annexure-E that there are 225 vacant posts for 2nd class employees, 481 vacant posts for 3rd class employees (7th grade), 481 vacant posts for 3rd class employees (8th grade), 28 vacant posts for 4th class employees (9th grade and 358 vacant posts for 4th class employees (10th grade) to be filled in by direct recruitment. The available vacant posts include the posts held by the respondent no. 1 of the writ petitions. The total number of the respondent no. 1 of the writ petitions who filed the respective BLL and IR Cases is 228. Therefore, this new ground falls to the ground.

  5. The respective BLL and IR Cases were filed under section 213 of the labour act, 2006 to enforce the right to be treated as permanent workers after successful completion of 3 months/ 6months probationary period prescribed under section 4(7) and (8) of the labour act, 2006. Section 213 is quoted below for ready reference,

“২১৩। শ্রম আদালতে দরখাস্ত।- কোন যৌখ সরকষাকষি প্রতিনিধি অথবা কোন মালিক অথবা কোন শ্রমিক এই আইন বা কোন রোয়েদাদ বা কোন নিষ্পত্তি বা চুক্তির অধীন বা যারা নিশ্চিত বা প্রদত্ত কোন অধিকার প্রয়োগের জন্য শ্রম আদালতে দরখাস্ত করিতে পারিবেন।”

  1. Section 4(7) and (8) is also quoted below:

“৪। শ্রমিকগণের শ্রেণীবিভাগ এবং শিক্ষানবিশীকাল।- (১) কাজের ধরন ও প্রকৃতির ভিত্তিতে কোন প্রতিষ্ঠানে নিয়োজিত শ্রমিকগণকে নিম্নলিখিত শ্রেণীতে বিভক্ত করা যাইবে, যথাঃ-
(ক) শিক্ষাধীন;
(খ) বদলী;
(গ) সামরিক;
(ঘ) অস্থায়ী;
(ঙ) শিক্ষানবিস; ও
(চ) স্থায়ী।

(২) …
(৩) …
(8) …
(৫)…

(৬)…
(৭) কোন শ্রমিককে হারী শ্রমিক বলা হইবে যদি কোন প্রতিষ্ঠানে তাহাকে হায়ীভাবে নিযুক্ত করা হয়, অথবা প্রতিষ্ঠানে তিনি তাহার শিক্ষানবিসীকাল সন্তোষজনকভাবে সমাপ্ত করিয়া থাকেন।
(৮) কেরানী-সংক্রান্ত কাজে নিযুক্ত কোন শ্রমিকের শিক্ষানবিসীকাল হইবে ছয় মাস এবং অন্যান্য শ্রমিকের জন্য এই সময় হইবে তিন মাসঃ
তবে শর্ত থাকে যে, একজন দক্ষ শ্রমিকের ক্ষেত্রে তাহার শিক্ষানবিসীকাল আরও তিন মাস বৃদ্ধি করা যাইবে যদি কোন কারণে প্রথম তিন মাস শিক্ষানবিসীকালে তাহার কাজের মান নির্ণয় করা সম্ভব না হয়।”

  1. Mr. Shafique Ahmed, the learned Senior Counsel for all the respondent no. 1, places before us the case of Bangladesh Biman Corporation and others vs. Md. Zahangir Farazi and others 65 DLR (AD) 116 and submits that on similar facts the Appellate Division made the following observations,

“Though the petitioners were appointed as casual workers on ’no work no pay’ basis against the permanent posts initially for 90 days, because of their continuous services therein for 7/8 years without any gap and thus, they having completed the period of probation of three months as provided in section 4(2) of the act, 1965, acquired a right to be permanent in their respective posts, the High Court Division did not commit any illegality in making the Rules absolute.”

  1. In the reported case, the respective IRO cases were dismissed by the Tribunal. The respective 1st parties filed writ petition and succeeded. Section 4(2) of the act, 1965 referred to in the judgment is the Employment of labour (Standing Orders) act, 1965 which has been repealed by the labour act, 2006. Section 4(2) of the act, 1965 contained similar provisions to those of section 4(8) of the act, 2006. Therefore, we find no reason to deviate from the settled issue on similar facts.

  2. In view of the aforesaid discussions, on both point of law and facts, we do not find any illegality in the judgments passed by the respective labour Courts and the labour Appellate Tribunal.

  3. In the operative part of the judgment reported in 65 DLR (AD) 116, the direction was given thus,

“The respective petitioner-respondent shall get half of the service benefits from the date of the judgment and order of the High Court Division till their services are recognized as permanent in their respective post and places where they had worked since the date of their joining in the respective post.”

  1. The operative part of the judgment passed by the labour Appellate Tribunal is as under:

“The Appellant Sadharan Bima Corporation is directed to make the respondents permanent from the date of their appointment with all arrear wages and legal benefits, entitled as per law within 45 (forty five) days from the date of receipt of the copy of this judgment.”

  1. In view of the judgment of the Appellate Division reported in 65 DLR (AD) 116, the operative part of the judgment of the labour Appellate Tribunal is modified as under.

  2. The writ petitioner Sadharan Bima Corporation is directed to make the respondent no. 1 of all the writ petitions permanent in their respective post and places from the date of their appointment within 45(forty five) days from the date of receipt of this judgment and to pay the respondent no. 1 of the writ petitions the half of the service benefits which they are entitled as per law from the date of receipt of this judgment i.e. from 02.06.2016.

  3. With the above modification, all the Rules are discharged. The order of stay is recalled and vacated. However, there is no order as to cost.