↓Skip to main content
Labour Laws
  1. Case Law/

Uttara Bank Limited Vs. Md. Abdul Khaleque and Ors.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Civil Revision No. 2342 of 2014

Decided On: 01.08.2016

Appellants: Uttara Bank Limited Vs. Respondent: Md. Abdul Khaleque and Ors.

Hon’ble Judges/Coram: Naima Haider and Khizir Ahmed Choudhury, JJ.

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

For Respondents/Defendant: Md. Nurul Mostafa, Advocate

Acts/Rules/Orders: Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11(a); Code of Civil Procedure, 1908 (CPC) - Section 151

JUDGMENT

Khizir Ahmed Choudhury, J.

  1. Rule has been issued upon the opposite party No. 1 to show cause as to why the impugned order No. 44 dated 22.05.2014 passed by the learned Joint District Judge, 5th Court, Dhaka in Money Suit No. 43 of 2012 rejecting an application under order 7 Rule 11(a) and (b) read with section 151 of the Code of Civil Procedure should not be set aside.

  2. The opposite party No. 1 herein as plaintiff instituted Money Suit No. 43 of 2012 arising out of pauper Miscellaneous Suit No. 7 of 2005 in the 5th Court of Joint District Judge, Dhaka seeking a decree for compensation and damage of Tk. 8,80,75,500/- against the defendants petitioner Bank.

  3. Short fact for disposal of the rule is that the plaintiff was appointed officer of Uttara Bank under memo No. SAD/PG-2978 dated 13.05.1985 and he was confirmed as senior officer on 31.03.1986 and thereafter promoted as Senior Officer Grade 2. He was dismissed from service on 20/02/1990 out of some false charges brought against him by defendant No. 2. Thereafter he filed Title Suit No. 113 of 1992 in the 4th Court of Assistant Judge, Dhaka being renumbered as Title Suit No. 79 of 1998 after having transferred to Assistant Judge 3rd Additional Court Dhaka, for re-instatement in service which was decreed on 25.08.1998 and Title Appeal being preferred by defendant Bank Appeal No. 3/3/19 in the court of district Judge Dhaka was also dismissed on 26.8.1999 which was challenged by the Bank in the High Court Division in civil revision No. 540 of 2000 in which rule was made absolute on 2.5.2000 whereby the judgment and decree of court below was set-aside. The plaintiff thereafter filed civil petition for leave to Appeal No. 130 of 2002 before the Appellate division and the said CPLA was dismissed by the Hon’ble Appellate Division by judgment dated 13.8.2003. As per the observation of the High Court Division the plaintiff is entitled to receive compensation and as such assessing Tk. 8,80,75,500 as compensation the instant suit has been filed.

  4. The petitioner defendant entered appearance on 19.6.2013 and by filing an application under on order 7 rule 11A and 11D read with section 151 of Code of Civil Procedure prayed for rejection of the plaint of the suit contending that although the plaintiff was designated as senior office grade 2 but he did not perform any managerial function in the Bank rather performed clerical works under the administrative and managerial authority and as such he being worker under Section 2(65) of Bangladesh Labour Act 2006 his remedy is available in the Labour Court by special law barring his remedy in the civil court.

  5. The plaintiff opposite party by filing a written objection opposed the claim of plaintiff-petitioner.

  6. The learned Joint District Judge by the impugned order dated 22.05.2014 rejected the petition with observation that it is not possible to ascertain whether the plaintiff is performing managerial duty or he being worker are to be determined with evidence for which the instant rule.

  7. Mr. A.K.M. Shafiullah along with Rokiya Akter appearing for petitioner submits that “plaintiff opposite party No. 1 although designated as officer but he was not entrusted with managerial or administrative power and he falls within the definition of worker having available his remedy under section 132 of the Bangladesh Labour Act 2006, the present suit is not maintainable. He next submits that it is settled principle of law that a worker if on solitary occasion does function of managerial or Administrative nature, he does not cease to be a worker but the court below failed to comprehend that vital aspect of the case and erroneously rejected the application for rejection of plaint. He next averred that when remedy is available under ordinary law as well as special law, the remedy is to be sought under special law excluding general law. But the court below failed to comprehend that legal position and came to wrong conclusion. He referred the case Indo-Pakis-tan Corporation limited vs. the Chairman and another reported in 21 DLR 285 in support of his contention.

  8. Per contra Md. Nurul Mostafa, learned advocate appearing for opposite party No. 1 submits that the plaintiff-opposite party No. 1 was performing managerial and decision making function of the Bank and as such he is not worker and consequently application for rejection of plaint is filed under misconception of law which was rightly rejected by the court below. He next submits that staffs and officers of Bank are public servant under Section 110 of the Banking Company Act 1991 and as such civil court has got jurisdiction to entertain any suit as per relevant provision of law. He next submits that while dealing an application for rejection of plaint only the statement made in the plaint is to be consider assuming all the averment made therein to be correct without taking defense plea into consideration and as such the court below rightly rejected the application filed under order 7 rule 11 of the Code of Civil Procedure. Learned advocate referred the case of International Finance investment and Commerce Bank limited vs. Abdul Quayum and another 4 MLR (AD) 340 and the case of Nurunnessa and others vs. Mohibuddin Chowdhury and others 49 DLR 235.

  9. Having gone through the impugned order, application for rejection of plaint, written objection and other materials kept in the record it appears that admittedly the plaintiff was holding post of senior office grade 2 (principle officer) but contention of the petitioner defendant is that he did not perform any administrative and managerial function in the bank rather performed clerical works. On the other hand the specific contention of the opposite party is that he was performing managerial and administrative function and was involved with policy making decision. This rival contention cannot be sorted out merely upon application and written objection but it is to be decided upon consideration of evidence both oral and documentary at the time of peremptory hearing of the suit.

  10. In deciding as to whether the plaint should be rejected the court is required to consider only the plaint assuming all the averment made therein to be correct, without taking any possible defense plea into consideration. In the case of Nurunnessa and others vs. Mohibuddin Chowdhury and others 49 DLR 1934 it is held as under:

“The settled principle of Jaw is that in deciding the question as to whether the plaint should be rejected the Court is required to consider only the plaint. The Court is required to apply its mind to the averments made in the plaint itself as a whole, assuming all the averments made therein to he correct, without taking into consideration the possible defence plea. In other words, the Court can reject the plaint only when it comes to the conclusion that even if all the allegations made in the plaint are proved still then the plaintiffs would not be entitled to any relief whatsoever. From the allegations made in the plaint-Annexure “B” to the petition we find that there is sufficient and distinct cause of action and if the averments made in the plaint are proved the plaintiffs would be entitled to the reliefs sought for.”

  1. The decision as referred by Mr. A.K.M. Shafiullah in the case of Indo-Pakistan Corporation Limited Vs. The Chairman and another 21 DLR 285 is rested upon the principle that a worker who on solitary occasion does function of managerial or administrative officer does not cease to be a worker. This decision is plainly not applicable in the instant case as because for taking a decision whether the plaintiff is a worker or performing managerial and administrative function is to be decided upon taking evidence. The court below considering whole gamut of the legal and factual aspects held that application for rejection of plaint is not tenable. We find no infirmity or illegality in the findings made therein.

  2. Accordingly the rule is discharged without any order as to cost.

The order stay granted at the time of issuance of rule is hereby recorded and vacated.

Send a copy of order to the concerned court.