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Sharmeen Annie Vs. First labour Court, Dhaka and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 7070 of 2011

Decided On: 22.01.2012

Appellants: Sharmeen Annie Vs. Respondent: First labour Court, Dhaka and Ors.

Hon’ble Judges/Coram: A.H.M. Shamsuddin Choudhury and Jahangir Hossain, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Sheikh Fazle Noor Taposh and Mohammad Mehedi Hasan Chowdhury, Advs.

JUDGMENT

A.H.M. Shamsuddin Choudhury, J.

  1. The Rule under adjudication, issued on 08.08.2011 was in following terms:

“Let a Rule Nisi be issued, calling upon the respondents to show cause as to why the impugned Order No. OS dated 07.07.2011, passed by the learned First labour Court, Dhaka, rejecting the application filed under Order VII Rule 11 read with Section 151 of the code of Civil Procedure, now pending in the learned first labour Court, Dhaka, should not be declared to have been passed without any lawful authority and is of no legal effect and/or why such other or further order as to this Court may deem fit and proper, should not be passed.”

  1. Averments figured in the petition are summarized below;-

The Petitioner, Director Human Resource of a named Cemex Bangladesh Ltd. private company, limited by shares, challenges Order No. 05, dated 07.07.2011, the learned First labour Court, Dhaka, passed, rejecting an application, the petitioner filed invoking Order VII Rule 11 of the Code of Civil Procedure, seeking rejection of the plaint the respondent No. 2 filed in the said labour Court, implicating the petitioner and others.

  1. The Petitioner asserts that the Respondent No. 1 erred in law as well as on facts in rejecting the aforementioned application.

  2. On 19.04.2011 the Respondent No. 2 as the First Party had filed the said B.L.A Case No. 251 of 2011, in the said labour Court, praying for payment of all regular benefits, the permanent workers are entitled to as per Bangladesh labour act, 2006, in the Respondent No. 1, Court, impleading the Petitioner and others as the Second Parties.

  3. On 16.06.2011 the above mentioned Second Party, ie the petitioner before us, filed the aforesaid Order 7 Rule 11, application.

  4. On 07.07.2011, after hearing the parties of the B.L.A Case, the learned Court below rejected the said application under Order VII Rule 11.

  5. The petitioners company did not appoint the Respondent No. 2 as its permanent Worker, A business concern named TEAM Services had engaged the said Respondent to work as Driver. The TEAM Services had, in turn, sent the Respondent No. 2 to act as Driver in the office of the Cemex Cement Bangladesh Ltd., under an agreement between the above named two entities.

  6. Consequently, no appointment letter and service book were issued by the petitioner’s company to the Respondent No. 2.

  7. TEAM Services has been taking bills from the petitioner’s company against the services it provided to the latter and from the said payment, TEAM Services has always issued money receipt.

  8. TEAM Services being the employer of the Respondent No. 2, had also opened Group Insurance coverage for the said Respondent and others.

  9. The petitioners company did not appoint the Respondent No. 2 as its worker and, therefore, the said Respondent is not entitled to get any benefits as a worker as per the labour Law, 2006 from the earlier. It had no material control over the Respondent No. 2 in relation to employment, benefits, salary and group insurance. As such, no cause of action arose in favour of the respondent No. 2 to file the B.L.A Case against the Petitioner.

  10. In passing the impugned Order No. 05 dated 07.07.2011, the Respondent No. 1 erred by failing to appreciate that Order VII Rule 11(a) of the Civil Procedure Code provides that the Court shall reject the plaint ‘where it does not disclose a cause of action". Obviously no cause of action ever arose to file the B.L.A Case against the Petitioner, as Cemex Cement Bangladesh Ltd. is not the employer of Respondent No. 2, and, as, such, the said order has been passed without lawful authority.

  11. In passing the impugned Order the Respondent No. 1 erred in law in concluding that the respondent No. 2 has been working under the petitioner, although the Respondent No. 2 was appointed by TEAM Services, an independent contractor, who later sent the Respondent No. 2 to provide services as a driver to the petitioner.

  12. The said Respondent further misdirected itself by failing to appreciate that Section 213 of the labour act, 2006 confers jurisdiction upon the learned labour Court to adjudicate upon a matter involving “Industrial dispute” as defined in the labour act, 2006. Evidently, the dispute in question does not fall within the definition of “Industrial dispute” so as to render a proceeding maintainable under section 213 of the labour act, 2006. The Respondent no. 2 sought a declaration to the effect that he is a permanent employee of the petitioner, along with a direction for the issuance of an employment letter by the petitioner none of which fall within the definition of “industrial dispute” under the labour act.

  13. The Learned Court below also erred in law in failing to appreciate that Section 213 of the labour act, 2006, is not to be used as an instrument for establishment of any right, but only for enforcement of existing fights, guaranteed or secured by law.

  14. None of the respondents had filed any Affidavit-in-Opposition.

  15. As the Rule ripened for adjudication, Mr. Fazle Noor Tapash, the learned Advocate for the petitioners submitted that under Section 213 the labour Law, a labour Court can assume jurisdiction if a person can show that a right under an agreement between him and the employer has been engendered. In the instant case submitted Mr. Taposh, the petitioner has himself unambiguously stated in his plaint that there is a no agreement between him and the instant petitioner, and as a matter of fact, it is this agreement that the petitioners has been asking for.

  16. He further submitted that the respondent No. 2 not being an employee of the petitioner, had no locus standi to file the concerned BLA case.

  17. For us the solitary question is whether the labour Court concerned acted within lawful authority in rejecting the Order 7 Rule 11 application.

  18. In the absence of pleading in rebuttal we have to accept as true the factual assertions the petitioners have scripted. The petitioner projects, which projection has remained unassailed, that the respondent No. 2 is an employee of an independent concern, named TEAM Services, which, under as agreement with the petitioner, supplied the respondent No. 2 to work for the earlier.

  19. So, it can not be said that the respondent No. 2 was in the employment of the petitioner. To be an employee one has to be in the employer’s pay roll and subject to the latter’s control on questions of employment. There has to be a contract of employment inter se, containing terms of employment. Nothing like that is present in the file before us. It transpires, the respondent No. 2 is indeed an employee of an independent contractor named TEAM Services. The contractual relationship is between the petitioners and TEAM Services, the respondent No. 2 is not a privy to it. So, he has no cause of action against the petitioner.

  20. We are also swayed to the equation that the alleged dispute not being an industrial one, section 213 of the act is not attracted and hence the labour Court concerned was coram non-judice. It follows that the Court below was bounden to accept the application for rejection of plaint.

  21. For the reasons assigned above, the Rule is made absolute without any order as to cost. The assumption of jurisdiction by the labour is hereby set aside.