SOME LEADING CASES

In document Labour Law in Bangladesh (Page 98-103)

Advocate Wasim Khalil

SOME LEADING CASES

In the first labour court of Bangladesh Complaint Case No.24 of 1974

Majibur Rahman – First Party Versus

A.K.M. Nurul Islam–Second Party, Present:

Mr. Amanullah Khan—Chairman.

Mr. M. Karim—Member Mr. M.A. Mannan — Member

This is an application under section 25(1)(b) of the Employment of labour (Standing Orders) Act, 1965.The First Party Majibur Rahman alleges that he has been a driver of Truck No. DHAKA TA: 577 belonging to the second party Nurul Islam. He was appointed on 25-12-1972. He has been removed from service on 18-07-1974. From 3 months prior to his removal he had been driving another truck No. DHAKA TA :2115 also belonging to the second party. He further alleges that he was never paid wages regularly and was paid only Taka 1,150.00 for the total period of his service and thus Taka 5,882.00 fell due as arrear wages. He further claims that the second party also took a loan of Taka 1,000.00 from him and has not paid it as yet. He now claims arrear wages along with termination benefits, overtime dues and the amount of loan advanced. According to him, his last wages had been Taka 375.00 per month.

The second party Nurul Islam submits in his written statement that for misconduct he dispensed with the service of the first party on 23-11-1973 clearing all his dues.

Thereafter, at the request of well-wishers of the First party he re-employed him on 12-03-1974 at Taka 12.50. per day on no work no pay basis and finally terminated the services of the first party on 18-07-1974 settling up all his dues. It is further contended that this case is not maintainable as the first party is not a worker under the employment of labour (S.O.) Act,1965.I shall take up the question of maintainability first as this will dispose of the case without going through the merits of the case on facts as any finding in facts may prejudice the parties in their future litigation over these facts at any other forum.A worker has been defined in the Employment of labour (S.O.) Act,1965 in the following terms: ‘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 exercise, either by nature, of the duties attached to the office or by reason or power vested in him functions mainly of managerial or administrative nature.Now let us see if a truck service is included in either the industrial establishment or commercial establishment.Industrial establishment, has been defined in the said Act as follows:‘Industrial establishment’ means any workshop or other establishment in which articles are produced, adapted or manufactured or where the work of making, altering, repairing, ornamenting, finishing or packing or otherwise treating any article on or any such other class of establishments, including water transport vessels or any class there of which the provincial Government may, by notification in the official gazette, declare to be and industrial establishment for the purpose of this Act, and

includes-(I) any tramway or motor omnibus service;

(II) any dock, wharf or jetty;

(III) any mine, quarry, gas-field or oil-field;

(IV) any plantation; or

(V) a factory as defined in the Factories Act,1934.

So a truck service is not included in any industrial establishment. Now let us see if a truck service falls under the category of commercial establishment which has been defined in the following terms:‘Commercial establishment’ means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial

or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contest with the owner of any commercial establishment or industrial

establishment employ workers, a unit of joint stock company, an insurance company, a banking company or a bank, a broker office or stock exchange, a club, a hotel or a restaurant or an eating house, a cinema or theatre or such other establishment or class there of as the provincial Government may, by notification in the official gazette, declare to be commercial establishment for this Act.

So this definition too does not cover a truck service. The learned advocate for the first party submits that commercial undertaking in the definition of commercial establishment will include a truck service. But the words commercial undertaking has been used there with reference to clerical departments of such commercial undertaking and not each and every worker of a commercial undertaking. I, therefore, find that the first party is not worker under the employment of labour (S.O.) Act.1965 and has no remedy under this Act. This case is not, therefore, maintainable in this Court. In fact his remedy lies under Road Transport Workers Ordinance, 1961.

Leading case (high court division):

Md. Idris Khan ……… Petitioner Versus

Chairman, 1st Labour court

Dhaka & others ……… ……. Respondents

[Employment of labour (standing orders) Act,1965 (VIII of 1965) S. 2(j)]

A bus can not be called a commercial or industrial establishment.

Having regard to the definition of commercial and Industrial establishment as contained in the said act, a bus cannot be termed as a commercial or industrial establishment with in the meaning of section -2 of the act.

(Writ petition No.5 of 1971) Judgment:

Abdur Rahman chowdhary, I…….. this Rule is directed against the judgment and order dated 14.12.70 passed by the first labour court, Dhaka Facts leading to this rule in brief are that respondent no-2(herein after called the respondent) filed an application under section 25(1) of the Employment of laour (standing orders) Act, 1965 (herein after referred to as ‘the Act’) on the allegations that he was a motor driver under the petitioner at a monthly pay of TK.360 from 1965 and his services were terminated on the ground that he was an active worker of motor transport Employees union which staged a strike. After the strike was called off, the respondent went to resume his duty, but he was not allowed to join and he was verbally dismissed. He sent a grievance

petition for re-instantement with all his legal dues and the petition having been refused, he moved the labour court.

The petitioner contested the said case by filing written statement wherein he denied the allegations made in the complaint petition and also denied that he was the owner of the bus or employer of the respondent.

1. The respondent adducted oral evidence, but the petitioner did not adduce any evidence. One consideration of the evidence on record, the [Government] consider to be representative organization of such employers and worker respectively.

2. The members referred to in the proviso to sub-section (1) to represent the employers connected with and the workers engaged in the industry concerned shall be appointed after considering nomination if any, of such organizations as the

Government considers to be representative organization of such employer & workers respectively.

3. The term of office of the members of the Board, the manner of the filling casual vacancies therein the appointment of its committees if any, the procedure and conduct of the Board and its committees and all matters connected therewith including the fees and allowances to be paid for attending such meeting and other expenses, including expenses for the services of experts and advisers obtained by the Board, shall be such may be prescribed by rules made under section 17[14].

Recommendation & Conclusion

Labor problems constituted a serious menace to the society, and needed solution, if not to eradicate then at least to mitigate them in the very beginning. Employers paid their sole attention to the maintenance of machines and the improvement of the technical know how to the utter neglect of the human hands employed to man the machines because they were readily available and could be easily replaced. Workers were illiterate and poor and therefore unconscious of their rights. The socio-economic status of the workers was far below the status of their employer. As such they could not exercise their free will in negotiating with the employer for employment. The employer taking advantage of the poor condition of the workers dictated their own terms and conditions with regard to wages, hours of work, leave, etc. The workers were left with no choice but to accept such terms because service was the sole means of earning their livelihood.

Neither the Government nor the law courts took special notice of these problems because they laid to much emphasis on the policy of the non-interference and freedom of contract. Thus, with the lapse of time the situation turned out to be so worse and the

society became so much adversely affected that the Government was compelled to take some action to remedy these problems.Ultimately some philanthropic agencies like Servants of India society, social service league and some industrial social workers raised their voice against these problems. They were successful in mobilizing the public opinion in support of their view point. Workers also started to form their own

organization to fight against exploitation at the hands of industrialists. In the beginning the effort of the workers was not very successful because of their weak bargaining power and lack of resources on which they could rely for their livelihood in the absence of wages.

Some employers also realized the seriousness of the problem and the necessity of mitigating these evils for they affected the production of the industry, they felt that investment on labour welfare was a policy with pursuing because a contended worker would produce better yields and would increase the efficiency.The Government too later on realized the gravity of the problem and could not remain a spectator for the workers constituted a large section the society. Moreover, the government had to intervene to settle the disputes in the interest of national economy and the welfare of the society at large. If some key industry is thrown out of gear, the whole system is paralyses.

Frequent break downs of even a part of the economic system tend to impoverish the community. The prevention of industrial strife thus assumes an important role in national policy and the State, therefore ,cannot afford to remain indifferent to the problems leading to industrial conflict.

After independence the national government paid much attention to the improvement of the conditions of labour in industry, for the prosperity of a country depends upon the development and growth of industry. No industry can flourish unless there is industrial peace and co-operation. Industrial peace is possible only with the co-operation of labour and capital. To ensure better co-operation the wage earner who is a partner in the production should be allowed to have his due share of the profit for increased

production. Therefore, we have to shape our economic policy in such a manner as to give labourer his due status by offering him reasonable working conditions and due share in production. That means social justice and social security has to be restored to the labourer. Our Constitution guarantees social justice to the people of India. Social justice means achievement of socio-economic objectives. Labour legislation is one of the most progressive and dynamic instruments for achieving socio-economic progress.

“There is no other branch of law which embraces such a wide and effective role in social engineering and social action. It is here that the industrial law distinguishes itself rrom

other branches of law and awaits the development of wholly different jurisprudence to explain and expound it”[15].

[1] Nirmalendu Dhar, Labour &Industrial Laws of Bangladesh,(Remisi Publishers), P.8 [2] Wikipedia,[http://www.en.wikipedia.org/wiki/labour_ law, accessed 16 April 2010]

[3] Iqbal Ahmad, Basic labour laws of Bangladesh,p.1.2.

[4] Principal Md. Altaf Hossain,Bangladesh Labour code,2006 with commentary & case law(Jolly law book center),p.2

[5] Nirmalendu Dhar,Student`s Mate Labour & Industrial laws of Bangladesh,(Remisi Publishers)p.7-9

[6] Iqbal Ahmad, Basic Labour Laws Of Bangladesh,p.3

[7] Md.Abdul Halim & Masum Saifur Rahman,The Bangladesh Labour Code,2006(CCB FOUNDATION: LIGHTING THE DARK,2007),P.258-259,S.353

[8] http://www.gtz-progress.org/2008/index2.php

[9] Md.Abdul Halim & Masum Saifur Rahman,The Bangladesh Labour Code,2006( CCB Foundation:Lighting the dark,2007),p.22-23,s.1(4)

[10]

[11] http://www.politiques socials.net /IMG /pdf/…,accessed 15 April 2010 [12] http://www.politiques socials.net /IMG /pdf/…,accessed 15 April 2010 [13]Iqbal Ahmad,Basic Labour Laws Of Bangladesh,p.309-311

[14]Prof. A.A .Khan, Bangladesh labour & Industrial Law(Pravati Prakashani),p.342-343 [15] S.N.Misra,Labour & Industrial Laws(22nd edition,Central Law Publications),p.5-6

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In document Labour Law in Bangladesh (Page 98-103)