1
In the Supreme Court of Bangladesh High Court Division
(Special Original Jurisdiction) Present
Madam Justice Kashefa Hussain
And
Madam Justice Fatema Najib
Writ Petition No. 9003 of 2019 In the matter of:
An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.
-And-
In the matter of:
Md. Mesbaul Alam and others
……. Petitioners. Vs.
The Government of People’s Republic of Bangladesh represented by the Secretary, Ministry of Local Government, Co-operative Division, Bangladesh Secretariat, Police Station-Ramna, District-Dhaka-1000 and others.
……Respondents.
Mr. Md. Ashrafuzzaman, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
... for the respondents No. 1. Mr. Molla Kismot Habib, Advocate
..... for the respondents No. 3.
Heard on: 06.06.2022, 07.06.2022, 08.06.2022 and judgment on: 09.06.2022.
Kashefa Hussain, J:
Supplementary affidavit do form part of the main petition.
Supplementary Rule nisi was issued calling upon the respondents to show cause as to why the impugned notification
purported to have been issued vides memo No. No. ¢jC/fÐn¡- 32/12/2016/239 (ANNEXURE-E), ¢jC/fÐn¡-32/12/2016/246 (ANNEXURE-E1), ¢jC/fÐn¡-32/12/2016/245 (ANNEXURE-E2), ¢jC/fÐn¡-32/12/2016/241 (ANNEXURE-E3), ¢jC/fÐn¡-32/12/2016/240 (ANNEXURE-E4) and ¢jC/fÐn¡-32/12/2016/244 (ANNEXURE-E5), dated 23.02.2016 under the signature of the respondent No. 05 dismissing the petitioners from the service should not be declared to be without lawful authority and is of no legal effect and/or such other
or further order or orders passed as to this Court may seem fit and proper.
The petitioner No. 1 is Md. Mesbaul Alam son of Md. Mokbul Hossain and Most. Rokeya Begum of Village – Chak Rada Kanai, pPolice Station- Fulbaria, District: Mymensingh, petitioner No. 2 is Md. Arifur Rahman son of late Abul Hossain Sardar and late Kahinur Begum of E/32, Road No. 7, Arambag Housing, Post Office – Mirpu, Pallabi, Dhaka, petitioner No. 3 is Md. Mujibor Rahman (Aslam) son of Md. Ataur Rahman and Most. Rozina Begum, Holding No. 991, Road No. 5, Section-7, Post Office-Mirpur, Pallabi, Dhaka, petitioner No. 4 is Md. Mohasin Gazi son of Abdul Jabbar and Begum Alea Holding No. 1067, Road-5, 7/5, Post Office- Mirpur, Pallabi, Dhaka, petitioner No. 5 is S.M Moshiur Rahman son of Golam Mowla Sharif and Fizroza Begum of Village- Baro Kasba, Ward No. 3 (part), post office- Tarki Bondor, Police Station – Gouranadi, Barisal and petitioner No.6 is Md. Rashed Khan son of Abdur Rashid and Nur Jahan Begum Holding No. 1216, Road No. 11, Post Office – Mirpur, Pallabi, Dhaka are the citizens of Bangladesh. The respondent No. 1 is
the Secretary, Ministry of Local Government, Co-operative Division, Bangladesh Secretariat, Dhaka, respondent No. 2 is the Chairman, Bangladesh Dugdo Utpadonkari Samabay Union Ltd. Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208, the respondent No. 3 is the managing Director, Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139- 140, Tejgaon Industrial Area, Dhaka-1208, the respondent No. 4 is the Additional Managing Director, Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208, the respondent No. 5 is the Additional Managing Director (Administration and Finance and Accounce), Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208, the respondent No. 6 is the Deputy Managing Director, Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208 and the respondent No. 7 is the Personal Officer of Chairman, Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208. .
The petitioners’ case inter alia is that the petitioners were appointed on the basis of Daily Hajira on 30.11.2010 by the Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208. That the petitioners after appointment were performing their duty painstakingly and sincerely in the Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon
Industrial Area, Dhaka-1208. That after joining in their respective posts the petitoners have been performing their duties sincerely, honestly and diligently with full satisfaction and the authority nobody raised any objection against the performance of the petitioners. That by Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208 being Memo No. ¢jC/fÐn¡-257/2015/2237 dated 05.11.2015 the petitioners including many workers were made permanent. That thereafter the petitioners on 02/01/2016 on the basis of Office order being Memo No. ¢jC/fÐn¡-257/2015/2237 dated 05.11.2015 joined as permanent employees as Production Super / Utpadon Tattabadayok (Employee Grade-2) and Grade – 4 in Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208. That the petitioners after joining in the said post have been performing their functions and duty painstakingly and sincerely in Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208. That between two groups of employees there was a clash and following said incident one Officer Md. Masiur Rahman Khan of Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka- 1208 as informant lodged FIR being Tejgaon Industrial Area Police Station Case No. 18(2)16 corresponding to G.R. No. 87 of 2016 under sections 143/323/325 of the Penal Code. That the said case after enquiry/ investigation submitted charge sheet and charged was framed and tried by the Chief Metropolitan Magistrate-02, Dhaka and the
court of CMM, Dhaka discharged the petitioners and acquainted the petitioner by order dated 13.02.2017 and others on 23.04.2019. That unfortunately on 23.02.2016 the Additional Managing Director, Bangladesh Dugdo Utpadonkari Samabay Union Ltd, Head Office- Dugdo Bhaban, 139-140, Tejgaon Industrial Area, Dhaka-1208 issued office order cçl A¡−cn (Daftor Adesh) for dismissal of the petitioners. That the petitioners filed representation on 27.04.2017 and lastly on 19.05.2019 for their further appointment but in vain. That the petitioners served a demand justice notice upon the respondents through their learned Advocate for their appointment/ reinstatement in their jobs but the respondents till today has not taken steps. Hence the writ petition.
Learned Advocate Mr. Md. Ashrafuzzaman appeared on behalf of the petitioners while learned D.A.G Mr. Noor Us Sadik Chowdhury with Mr. Md. Awlad Hossain, A.A.G along with Mr. Rashedul Islam, A.A.G appeared for the respondents No. 1 and learned Advocate Mr. Molla Kismot Habib appeared for the respondent No.3.
Learned Advocate for the petitioners submits that the respondents under the signature of the respondent No. 5 most unlawfully dismissed the employees from their service and such dismissal Order (Annexure-E) dated 23.02.2016 is without lawful authority. He points out to the materials on record before us and submits that the petitioners were initially on 30.11.2010 appointed as temporary employees on daily basis subject to some conditions which are marked as Annexure-A series. He continues that subsequently by way of Annexure B series and C series all the petitioners were made permanent employees by way of Annexure B by office order dated 05.11.2015 under the signature of the respondent No. 3. He next points out that Annexure C series show that the 6(six) petitioners are
all employees within the definition of the ¢h¢dj¡m¡ and definition of the Co-operative Society Ain, 2001 and which is manifest from Annexure
C series. He points out to Annexure C series and draws our attention
to the fact that 4(four) of the petitioners were appointed as permanent employees in grade-2 and other two petitioners were appointed as permanent employees in grade-4.
There was a query from this bench arising out of the contention
of the learned Advocate for the respondent No. 3 that the petitioners
do not fall within the status of employees rather they are workers subject to the Bangladesh Labour Laws. The learned Advocate for the petitioners controverts the contention of the learned Advocate for the respondent No. 3 by drawing attention to Annexure C series and points out that Annexure- C series clearly manifest that the petitioners
are not workers within the meaning of the labour laws of Bangladesh rather they are employees classified under specific grades for purpose
of employment by the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX. Upon further query from this bench he contended that h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX and Milk Vita is not a private body rather it is a public body and is owned by the Government of Bangladesh. In support he places before this court some materials from the Government website and draws our attention to the said materials. He agitates that these materials manifest that h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX and Milk Vita limited is not a private company rather it
is owned by the Government. He also draws attention to a list of Government owned companies from the website and draws our attention to the fact that the Milk Vita also falls in the category.
On the issue of maintainability of writ petition, he agitates that since Milk Vita is a Government owned company and the petitioners were all dismissed from service under the signature of the respondent No. 5, Additional Managing Director(Administration and Finance and Accounce) who is the Deputy Secretary of the Government and is holding post is Additional Managing Director. He submits that the respondent No. 5 is not holding the position of Additional Managing Director in his private capacity. He continues that the Respondent No. 5 only holds as designated by the Government to supervise the company’s inter alia function since it is a government owned company. He submits that therefore it is clear that the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX and Milk Vita is not a private company nor is it a body corporate in any manner and writ is maintainable.
He submits that by the Government owned organization and the respondent No. 3 particularly under whose signature the order was passed are also representing the government as a person or authority performing functions in connection with the affairs of the republic within the meaning of Article 102 of the Constitution. In this context
he agitates that therefore the order of dismissal by the respondent No.
3 may be challenged under Article 102 and writ is maintainable under Article 102 of the Constitution.
He next takes us to some factual aspects asserting that the petitioners as is evident from Annexure ‘C’ even were made
permanent employees of the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX, Milk Vita and have been classified in accordance with their gradation
list in grade-2 and grade-4 respectively. He contends that however the respondent No. 5 arbitrarily dismissed the petitioners from their
service without issuing any show cause notice upon them which evidently entails due process was not afforded to them. He submits
that the respondents were removed by office order No. 3 on 23.02.2016. He next points out to Annexure D series and shows the
date the criminal case was filed by some other members of the p¢j¢a
against the petitioners that is on 23.02.2016. He shows us that the petitioners were dismissed on the same date on 23.02.2016. He next
draws us to Annexure D1 and shows that however ultimately the
Court of Chief Metropolitan Magistrate, Court No. 2, Dhaka acquitted
them from the case by its order dated 23.04.2019. He argues that even
for argument’s sake it is presumed that even if the respondents raised
the question of criminal case pending against the petitioners and
which may have led them to their dismissal, nevertheless it is evident
from annexure-D1 that all the petitioners were acquitted from the case
after being proved innocent (¢e−cÑ¡o). He continues that however even if
a criminal case was pending against the petitioners even in that case
the respondents were bound to issue show cause notice upon the petitioners before dismissing them. To substantiate his argument he
draws attention to clause 8.02 (Kha) of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009). He draws us to Clause 8.02 Kha(2) and points
out that the dismissal from service of the petitioners falls within the provision under ‘M’ Kha that is …l¦cä. He next draws our attention to clause 8.06 of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009) and shows that clause 8.06 has categorically laid out the procedure in the
event of dismissal of service of any employees of the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX. He points out that clause 8.06 contemplates before dismissing from service imposing …l¦al cä by framing charge sheet followed by other procedures which is categorically laid out in clause-8.06 (Ka and Kha). He submits that it
is admitted that the petitioners were not afforded due process under
the mandates of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009) of the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX. He agitates that the respondent No. 3 representing the government and Milk Vita being a
public body was bound to afford due process to the petitioners by way
of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009 and also under the principles of natural justice. He agitates that by not affording due
process to the petitioners the respondents infringed upon the fundamental rights of the petitioners which right is guaranteed under
Article 27, 31 and also Article 40 of the Constitution.
On the issue of respondent No. 3’s contention that it is an appealable order and falls within clause 8.12 of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009), he controverts upon assertion that writ is maintainable in the instant writ petition since due process was not afforded to the petitioners while dismissing them from their service
and further is violative of the principles of natural justice. Regarding
the respondents’ contention that the petitioners are rather workers and
not employees within the meaning of the h¡wm¡−cn nÐj BCe 2006, the
petitioner controverts such contention of the learned Advocate for the respondents. He takes us to Section 4 of the BCe wherefrom he points out to 4(L) and submits that section 4(L) contemplate that nÐj A¡Ce of 2006 will not be applicable for any institution owned by the government. He submits that Section 4(L) which contemplates that plL¡l h¡ plL¡−ll Ad£eÙÛ ®L¡e A¢gp that is government or any institution under the Government or owned by the government shall fall within the exception of 14 Ka and therefore the employees therein shall evidently also fall within that exception for all purposes related to their employment. He submits that section 4(L) makes its clear that employees of a government or government owned organization are not workers within the definition of worker under the Bangladesh Labour Law, 2006.
He takes us to Section 2(65) of the Bangladesh Labour Law, 2006 and contends that in any case the instant petitioners’ nature of employment also do not fall within the category of labour. He argues that Section 2(65) of A¡Ce of 2006 contemplates that fÐn¡p¢eL h¡ hÉhÙÛ¡fe¡j§mL L¡−S c¡¢uaÅfÐ¡ç ®L¡e hÉ¢š² do not fall within the category of workers under any event. He agitates that it is clear from Annexure C series that the employees being ¢qp¡h lrL and ¢hfee aaÅ¡hd¡uL the nature of their employment do not fall with the category of workers. He however reiterates that given that Milk Vita is a government owned company which otherwise falls within the exception of section
4 Ka of the Labour Laws of Bangladesh that none of the provisions of the A¡Ce of 2006 is applicable in the petitioner’s case.
Reinforcing his argument on the respondent No. 2 representing
the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX not falling within the category of a public body within the meaning of Services (Reorganisation & Conditions) Act-1975, he particularly draws attention to section 2(c) of the Services (Reorganisation & Conditions ) Act-1975. He agitates that sub-section 2(c) of Act of 1985 clearly contemplates that anybody, authority, corporation or institution constituted or established by or under any law and includes
any other body, authority or institution owned, controlled, managed or
set up by the Government. Relying upon 2(C) he contends that it is clear enough from the materials placed before this bench that the respondents’ organization was established by the government. He assails that therefore it is clear that the respondents clearly being an institution owned, controlled, managed and set up by the government evidently falls within the definition of a public body. He assails that therefore writ being maintainable against all public bodies the instant
writ petition is also maintainable. He concludes his submissions upon assertion that the Rule bears merits ought to be made absolute for ends
of justice.
On the other hand learned Advocate for the respondent No. 3 vehemently opposes the Rule. At the onset of his arguments he contends that the present writ is not maintainable. Upon elaborating,
he argues that the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX is a private body and not a public body and not owned by the Government. He argues that the government is not a share holder of Milk Vita nor is it owned by the Government. He contends that the
government’s interest in the institution is limited and is in only so far as its equity and Ae¤c¡e is concerned. Upon a query from this bench regarding the order of dismissal being under the signature of respondent No. 5 who is the Additional Managing Director (Deputy Secretary of the Government), he argues that some officers are deputed to the institution in which the government have some interest and the functions of those persons is only to supervise the dealings of the company so far as the interest of the government is concerned. He however next argues that neither the respondent No. 5 nor the respondent No. 3 while they are serving in their post of Managing Director and Additional Managing Director so long as they are holding these posts they are holding the same in their private capacity and are not representing the public authority nor government. He submits that therefore the respondent No. 2 being a private body writ is not maintainable in the instant case.
He next argues that the petitioners if at all aggrieved could have availed the forum of appeal afforded under clause 8.12 of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009) to seek redress against order of dismissal. He reiterates that writ is particularly not maintainable in the instant case since the respondent No. 2 is the Chairman of h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX which is not a public body or institution.
He next contends that the petitioners wrongly argued that the petitioners were dismissed from their service. He submits that in the petitioners case the petitioners were not dismissed from service rather they were terminated from their service. He submits that there is a fundamental distinction before dismissal and termination. He draws attention to annexure E-E5 which are the 6(six) orders issued by the respondent No. 5 Additional Managing Director (Deputy Secretary of the Government). He draws attention to the language and heading of the office order dated 23.02.2016. He assails that in the petitioners case the service of all six petitioners were terminated and not dismissed. He particularly draws attention to the subject matter of the office order dated 23.02.2016 Q¡L¥l£ Ahp¡e. He submits that it is clearly written that they were all terminated Q¡L¤l£ Ahp¡e Ll¡ qC−m . He submits that under the principle of law and following a decision of our Appellate Division that in case of termination simpliciter no due process has to be given and principle of natural justice does not lie. In support of his case he cited a decision in the case of Biman Bangladesh Vs. Moniruzzaman reported in 17 BLC(AD)(2012) 56 and points out that in this decision our Appellate Division made it clear that- “termination simpliciter without giving any stigma or making any accusation is not a punishment and in passing such order no reason is required to be assigned.” He submits that since no reason was given in termination of the petitioners therefore it was a termination simpliciter and the principles of natural are not applicable and the Q¡L¥l£ ¢h¢d J ¢e−u¡N e£¢aj¡m¡ 2008 (pw−n¡¢da-2009) clause 8.06 is also not applicable in this case.
He next argues that since the said respondent organization is a private body and has its own e£¢aj¡m¡ therefore writ is not maintainable. He asserts that the petitioners ought to have sought redress under Clause 8.12 of the e£¢aj¡m¡ which provide for the forum
of appeal against any order passed by the respondents. He argues that
the petitioners clearly did not resort before the appropriate forum which is contemplated under clause 8.12 of the e£¢aj¡m¡ therefore they
did not seek redress before the proper forum, however writ being not maintainable the writ petition is not sustainable.
He next argues on the nature of class of employment of the petitioners. He contends that the petitioners are not ‘employees’ rather they fall within the category of ‘worker’ within the meaning of the Bangladesh Labour Law, 2006. In this context, he asserts that the petitioners to seek redress ought to have resorted to the labour court against the order of dismissal and certainly not writ forum. To substantiate his submissions he draws attention to paragraph No. 4,
and 7 of the writ petition and submits that in paragraph Nos. 4 and 7
of the writ petitions the petitioners have admitted that they are workers and therefore the petitioners case shall fall within the scheme
of the relevant laws. He particularly draws attention to Paragraph No.4 of the writ petition and pursuades that it is the petitioners’ admission that they were appointed on the basis of Daily Hajira on 30.11.2010 by the Bangladesh Dugdo Utpadonkari Samabay Union
Ltd.
Upon a query from this bench the learned Advocate for the respondent No. 3 claims that however the petitioners are employed in managerial and administrative capacity but nevertheless as workers.
He draws attention to Section 14 of the pjh¡u p¢j¢V BCe J pjh¡u p¢j¢a ¢h¢dj¡m¡ and submits that from Section 14 of the pjh¡u p¢j¢V BCe J pjh¡u p¢j¢a ¢h¢dj¡m¡ it clearly shows that pjh¡u p¢j¢V BCe J pjh¡u p¢j¢a ¢h¢dj¡m¡
is a body corporate and a separate and independent entity not dependant on the Government. He submits that Section 14 makes its clear that the pjh¡u p¢j¢V BCe J pjh¡u p¢j¢a ¢h¢dj¡m¡ is a body corporate and it inter alia can sue and be sued and can own on its liability as an independent body corporate.
He next draws attention to Section 16 of the pjh¡u p¢j¢V BCe J pjh¡u p¢j¢a ¢h¢dj¡m¡ and points out that Section 16 of the Ain contemplate that any decision taken by the management of the co- operative society shall be final. He submits that although the petitioners were formally terminated from their service under the signature of the respondent No. 5 but however the respondent No. 5 is only working under the decision of the management committee and in accordance with section 16 of the ¢h¢dj¡m¡ the order is final. On the issue of finality of decisions, orders etc of the co-operative society, he draws attention to a decision in the case of Nasim Ahmed Vs. Bangladesh and others reported in 32 DLD(HCD)2012 page 172 wherein he draws attention to the principle laid that an action taken by the executive committee of a co-operative society, which was neither performing the functions in connection with the affairs of the Republic nor of a local authority, is not amenable to writ jurisdiction. He reiterates that 32BLD(HCD)2012 case and this writ petition falls within similar category since the instant co-operative society is also a private entity and therefore writ is not maintainable. He concludes his submissions upon assertion that the Rule bears no merit ought to be discharged for ends of justice.
Learned Deputy Attorney General for the respondent No. 1 controverts the submissions of the learned Advocate for the respondent No. 3 regarding the nature and legal status of the respondent No. 2 who is the Chairman, Bangladesh Dugdo Utpadonkari Samabay Union Ltd. The learned D.A.G upon a query from this bench submits that the Bangladesh Dugdo Utpadonkari Samabay Union Ltd. Milk Vita is a public body and owned by the Government and certainly not a private entity. To substantiate his submissions regarding the nature of the entity he shows some materials from the government website and takes us to the history of Milk Vita which is a co-operative union Ltd. He draws us to the materials derived from the government website and also to other materials placed by the petitioners. He points out that the materials clearly show that the Bangladesh Dugdo Utpadonkari Samabay Union Ltd. is a government owned organization and the owners of the body is not the any private person but owned by the government. Upon a query from this bench he submits that regarding the nature and legal status the respondent No. 3 and the respondent No. 5’s position as Additional Managing Director and Managing Director of Milk Vita he pursuades that by no stretch of imagination can it be contemplated that a government officer under the laws of the land can hold any position in private capacity till retirement nor in any other dual capacity.
We have heard the Advocates for both sides, also heard the learned Deputy Attorney General, perused the writ petition and the materials on records including the decisions cited by the learned Advocates. The learned Advocate for the respondent No. 3 revolved around the issue of non maintainability of the writ petition. Therefore we are inclined to address the issue of maintainability first. On the issue of maintainability of the writ petition the respondent No. 3’s contention is that Milk Vita is not a public body rather it is a private body. We have perused the documents before us derived from the materials that have been available from the government website. We have gone into the history of the organization. The history of the organization is that Milk Vita was established and initiated by the government and certainly not by any private person. The government is clearly the owner of the company and the objective of Milk Vita contemplates that it was established mainly for purpose of social welfare by way of producing milk products by the organization for sale to the public. Upon a query from this bench the learned Advocate for the respondents as to who the share holders of the Bangladesh Dugdo Utpadonkari Samabay Union Ltd. of Milk Vita are, the learned Advocate for the respondent No. 3 claims that “fС¢¿¹L Q¡o£ ” are the share holders of the institution and not the government. The learned Advocate for the respondents’ substantive claim appears to be that share holders are the (cultivators) fС¢¿¹L Q¡o£ of Milk Vita Limited and not the Government. Upon a query from this bench he however could not make out any substantive submission as to what is the basis of the share holding of fС¢¿¹L Q¡o£ (cultivators) in the company.
Our considered view upon examining all the materials on records before us which includes the documents derived from the government website which include the list of government owned company, it clearly shows the inclusion of the respondent’s organization inter alia other factors. We are of the considered finding
that Milk Vita is a public body and not a private entity.
The learned Advocate for the respondents contended that Milk
Vita limited is a ‘body corporate’ within the meaning of Section 14 of
the Co-operative Society Act- 2001. He further contended that it is a
private independent entity and carries all rights and liabilities attached
to an independent entity. To address this issue we have examined
other provisions of 2001 (pjh¡u p¢j¢a A¡Ce Hhw ¢h¢dj¡m¡ ). Since it is a
principle of law that to comprehend and properly appreciate the
scheme of any law it must be read in whole and not in part with such
principle in mind we have examined Sections 14 and 21 of the Co-
operative Society Act- 2001. Sections 14 and 21 of the Co-operative
Society Act-2001are reproduced hereunder:
“d¡l¡-14z fÐ−aÉL pjh¡u p¢j¢a HL¢V pw¢h¢dhÜ pwÙÛ¡z-(1) HC BC−el Ad£−e ¢eh¢åa fÐ−aÉL pjl¡u p¢j¢a qC−h üa¿» BCeNa pš¡¢h¢nø HL¢V pw¢h¢dhÜ pwÙÛ¡ (Body Corporate) k¡q¡l ÙÛ¡u£ d¡l¡h¡¢qLa¡ b¡¢L−h, Eq¡l E−ŸnÉ f§lZL−Òf ®k−L¡e dl−el pÇfc ASÑe,
d¡lZ, qÙ¹¡¿¹l Ll¡l Hhw Q¤¢š² Ll¡l A¢dL¡l b¡¢L−h; p¢j al HL¢V
p¡d¡lZ p£m−j¡ql b¡¢L−h Hhw p¢j¢a Eq¡l ¢eS e¡−j j¡jm c¡−ul
L¢l−a f¡¢l−h Hhw Eš² e¡−j Eq¡l ¢hl¦−ÜJ j¡jm¡ c¡−ul Ll k¡C−hz
(2) ¢eh¢åa pjh¡u p¢j¢al p¡d¡lZ p£m−j¡ql L¡q¡l ašÆ¡hd¡−e
b¡¢L−h, ®L¡e ®L¡e c¢m−m J ®L¡e LaѪf−rl Ef¢ÙÛ¢a−a p£m−j¡ql à¡l¡
p£m ¢c−a qC−h a¡q¡ Ef-BCe à¡l¡ ¢edÑ¡¢la qC−hz”
and
“d¡l¡-21z pjh¡u p¢j¢al L¡kÑ¡hm£ f¢lQ¡me¡l SeÉ plL¡¢l LjÑLaÑ¡ Hhw LjÑQ¡l£ ®fÐo−Z ¢e−u¡Nz - (1) ®k pLm p¢j¢a−a plL¡−ll ®nu¡l, GZ h¡
Eš² p¢j¢al Nªq£a G−Zl hÉ¡f¡−l plL¡−ll NÉ¡l¡¢¿V l¢qu¡−R ®p pLm p¢j¢a−a plL¡l, ¢edÑ¡¢la naÑ p¡−f−r, ®L¡e fÐbj ®nÐe£l plL¡¢l LjÑLaÑ¡−L Eq¡l ¢ehÑ¡−ql SeÉ ®fÐo−Z ¢e−u¡N L¢l−a f¡¢lhz (2) ®L¡e pjh¡u p¢j¢al B−hceœ²−j ¢ehåL, acLa«ÑL ¢edÑ¡¢la naÑ p¡−f−r, A¢dcç−ll ®L¡e LjÑLaÑ¡ h¡ LjÑQ¡l£−L p¢j¢al L¡kÑ¡hm£ ¢ehÑ¡−ql SeÉ ®fÐo−Z ¢e−u¡N L¢l−a f¡¢l−hez”
It is true that Section 14 of the Co-operative Society Act-2001 contemplates that all pjh¡u p¢j¢a shall be independent body corporate
with its inter alia own rights and liability.
However upon perusal of Section 21 it clearly shows that the provision of Section 21 contemplates the existence of some pjh¡u p¢j¢a wherein the government of Bangladesh may be a share holder or a guarantor having share, loans or may be involved as guarantors regarding some loans by the government. In those cases section 21provides that the government may subject to pre conditions appoint
a first class government officer on deputation to look after the affairs
of the organization.
Our considered view upon perusal of the pjh¡u p¢j¢a Ain is that although Section 14 contemplates that all pjh¡u p¢j¢a shall be a body corporate having independent entity, however Section 21clearly contemplate that the class of pjh¡u p¢j¢a may be distinguished.
Although section 14 is a general provision but however section
21 clearly contemplate a different class of pjh¡u p¢j¢a (Co-operative
society). Section 14 provide a broad general legal status of pjh¡u p¢j¢a (Co-operative society). On the other hand section 21 specifically presuppose the existence of a different class of pjh¡u p¢j¢a . Such different class is expressly distinguishable under section 21 of the
A¡Cez Section 21 envisages those entities wherein the government may
have interest and in pursuance of which they may depute their representative from the government basically to monitor/ supervise
the running / functions of the entity.
The class of pjh¡u p¢j¢a envisaged under Section 21 therefore contemplate that the government shall appoint their first class officers
on deputation in those organizations. It is clear that Section 14 of the Co-operative Society Act-2001 does not contemplate that all pjh¡u p¢j¢as shall be private bodies if the governments interest is involved in such p¢j¢a. Therefore by no stretch of imagination can it
be assumed that Milk Vita Limited which is a limited company owned
by the government can fall into the category of a ‘private body’. We
are of the considered opinion that the instant pjh¡u p¢j¢a is a public
body owned by the Government and does not fall within the category
of a private entity.
We have perused section 2(c) of the Services (Reorganisation and Conditions) Act-1975. The said section 2(c) provides the definition of a public body which is reproduced hereunder:
“(c) “Public body” means anybody, authority, corporation or institution constituted or established by or under any law and includes any other body, authority or institution owned, controlled, managed or set up by the Government.”
Form our findings and also upon perusal of Section 2(c) of the Services (Reorganisation and Conditions) Act-1975 it is clear that the respondents are a public body since it is owned, controlled and set up by the government.
Now our next contention is the class of employees the petitioners belong to. The learned Advocate for the respondents repeatedly contended that the petitioners falls within the category of ‘workers’. The learned Advocate for the respondents pursuades that the petitioners in paragraph Nos. 4 and 7 of the writ petition ‘admitted’ that they are workers.
Our considered view is that whatever the language in the petition is not important rather the intention from the nature of the employment is to be considered. Pursuant to sifting through the materials and relevant laws, we have examined the office order dated 05.11.2022 marked as annexure-B which is the order of respondent No.6 making the petitioners permanent. Although the petitioners were appointed on temporary basis but it is admitted (Annexure B) that they were made permanent under the signature of the respondent No. 6. The office order clearly shows that they have not been termed as ‘worker’ but as employees and the petitioners’ employees grades are 2 and 4 respectively.
For our purpose we have also addressed Annexure C which describes the nature of the employment of the petitioners. The petitioners belong to Grade 4 and 2 respectively in post of ¢qp¡h lrL
and ¢hfee aaÅ¡hd¡uL. Therefore it is clear that they are not ‘workers’
within the meaning of the labour law, rather they are employees and
have been accorded Grades belonging to Grade 2 and Grade 4 respectively.
We have next drawn our attention to Section 1(4)(ka) of the h¡wm¡−cn nÐj BCe-2006. Section 1(4)(L) contemplates organizations
which shall fall within the exception of Section 1(4)(L) and shall not
fall within the meaning of h¡wm¡−cn nÐj BCe-2006. We have particularly
drawn attention to Section 1(4)(L) and which is reproduced hereunder:
“plL¡l h¡ plL¡−ll Ad£eÙÛ ®L¡e A¢gp” which means Government office or institutions owned by the government. Since we are of the considered
finding and opinion that the h¡wm¡−cn c¤‡ Evf¡ceL¡l£ pjh¡u CE¢eue ¢m¢j−VX is a public body and is owned by the government therefore it is needless to state that the organizations owned by the government falls
within the exception of Section 1(4)(L) . Consequently the provisions
of h¡wm¡−cn nÐj BCe-2006 shall not be applicable in the petitioners case.
Such being the position, we are also of the considered view that the petitioners’ are not workers rather they are permanent employees
under a particular selection grade.
Next we are inclined to address the issue of the nature of the relief from duties of the petitioners. The learned Advocates for the Respondents pursuaded that the petitioners’ were “terminated” from their service which is apparent from the office order dated 23.02.2016 which is annexure E. The learned Advocate for the respondents also argued that therefore the petitioner’s case does not fall within the
definition of dismissal or removal. In pressing their argument, they
relied on a decision in the case of Biman Bangladesh Vs. Moniruzzaman reported in 17 BLC(AD)(2012)56 wherein our Apex
court held:
“The principle of natural justice has got no
manner of application in case of termination simpliciter,
An order of termination simpliciter is a valid order and
cannot be interfered within in judicial review provided
that the intended action is not taken with a view to
victimize the employer/worker for trade union activities.”
The learned Advocate for the respondent No. 3 also tried to
pursuade that in the 17 BLD (AD) 2012 case also Bangladesh Biman
Corporation is a corporation owned by the government.
Keeping these in mind however we have perused the terms of
the Q¡L¥l£ ¢h¢d J ¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da-2009) of Milk Vita. We
have perused clause No. 9.02 of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da-2009) which contemplates a situation of termination of
employees and which clause 9.02 is reproduced hereunder:
“9.02 h¡dÉa¡j§mL Ahplc¡e/ Q¡L¤l£l Ahp¡e OV¡e (Termination of Employment) :
(1)H ¢h¢dj¡m¡l AeÉœ h¢eÑa ®L¡e ¢hd¡e −j¡a¡−hL e¡ q−m LaѪfr La«ÑL ÙÛ¡u£ LjÑQ¡l£−cl Q¡L¥l£l ®ju¡c 25 hvpl f§eÑ q−m h¡dÉa¡j§mL Ahplc¡e/Ahp¡e OV¡−a f¡l−hz ®p ®r−œ pw¢nÔø LjÑQ¡l£−L AhnÉC 120 (HLna ¢hn) ¢c−el ¢m¢Ma ®e¡¢Vn ¢c−a q−hz a−h naÑ b¡−L ®k, HLSe LjÑQ¡l£l Q¡Ll ¥£ Hl¦f h¡dÉa¡j§mL Ahplc¡e/Ahp¡e OV¡h¡l ®r−œ H dl−el ®e¡¢V−nl f¢lh−aÑ 120(HLna ¢hn) ¢c−el ®hae fÐc¡e Ll¡ k¡−hz
B−l¡ naÑ b¡−L ®k, HLSe LjÑQ¡l£l Q¡L¥l£ Hl¦−f h¡dÉa¡j§mL Ahplc¡e/Ahp¡e OV¡h¡l ®r−œ a¡−L Q¡L¥l£L¡−ml pj¡ç fÐ−aÉL hvpl Abh¡ ®k ®L¡e Awn ¢h−n−ol SeÉ (Ljf−r 120 ¢ce) ¢jó CE¢eue La«ÑL 02
(c¤C) j¡−pl j§m−hae q¡−l Be¤−a¡¢oL (NËÉ¡Q¤ÉC¢V) Hhw A¢SÑa R¤¢Vl eNc¡ueL«a AbÑ fÐc¡e Ll−a q−hz (2) Apc¡Qle, Acra¡ Abh¡ AeÉ ®L¡e L¡l−e Q¡L¥l£ q−a hlM¡Ù¹ h¡ Afp¡¢la q−m Be¤−a¡¢oL (NËÉ¡Q¤ÉC¢V) fСfÉ q−he e¡, a−h fТaù¡−el B¢bÑL ®L¡e r¢a p¡¢da e¡ q−m Abh¡ B¢bÑL r¢a q−m, Eš² B¢bÑL r¢a pjeÄu p¡−f−r Q¡L¥l£L¡−ml pj¡ç fÐ−aÉL hvpl Abh¡ ®k ®L¡e Awn ¢h−n−ol SeÉ(Ljf−r 120 ¢ce) ¢jó CE¢eue La«ÑL 02
(c¤C) j¡−pl j§m−hae q¡−l Be¤−a¡¢oL (NËÉ¡Q¤ÉC¢V) Hhw A¢SÑa R¤¢Vl eNc¡ueL«a AbÑ fÐc¡e Ll−a q−hz
In our case we find that even if the petitioner’s employment
were “terminated” it appears from Annexure E that however no
notice was served upon them nor was any j§m ®hae basic salary given
to them only. Upon perusal of Clause 9.02 it appears that in whatever
terms the office order dated 23.02.2016( Annexure E) may have been
issued, but for practical purposes it is not ‘termination’ within the
meaning of the ¢h¢dj¡m¡ since the respondents neither gave them notice
under clause 9.02 nor did they give them pay of 120 days in lieu of.
We are of the considered view that clause No. 9.02 of the Q¡L¥l£ ¢h¢d J
¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da-2009) which provides for termination,
however in the instant case since they were neither given any notice
nor were they given their salary their being relieved of their services
does not fall with termination. Therefore the appellate Division
decision in the case of Biman Bangladesh Vs. Moniruzzaman reported
in 17 BLC(AD)(2012)56 is not applicable in the instant case. We are
of the considered view that since it is not substantively a termination, consequently the petitioners being relieved from duty may fall within
the other categories. In accordance with the petitioner’s nature of
service, being relieved of their service may fall within the other categories in the Q¡L¥l£ ¢h¢d J ¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da-2009) of Milk
Vita Ltd. Particularly Clause 8.02(1)(Kha) is reproduced hereunder:
8.02(1)(M) …l¦cä:
We are inclined to opine that the petitioner’s dismissal from
their service falls with clause 8.02 of the e£¢aj¡m¡z Therefore we are
also of the considered view that ‘…l¦cä’ was imposed upon the petitioners.
We have also perused the other related clauses particular clause 8.06 which sets out an enquiry procedure imposition of …l¦cä( Serious punishment) if found guilty. Clause 8.06(L) contemplate a charge sheet and further states that the accused employee will be informed “LjÑQ¡l£−L Ah¢qa Ll¢−h ”. Clause 8.06 presupposes a written statement ¢m¢Ma ¢hhª¢a, and also hÉ¢š²Na n¤e¡e£(p rsonal hearing).
Upon overall perusal clause of 8.06 it clearly reflects the Rule
of affording due process of defence to the employee prior to imposing
…l¦cä of the e£¢aj¡m¡z Nevertheless, even if the e£¢aj¡m¡ was silent on the
issue of due process, even then the principle of natural justice would
be applicable and the employees must be afforded due process before
seizing him of his employment. In not affording due process is a
direct infringement into the employee’s fundamental rights guaranteed
under the constitution.
Moreover, the Respondent organization being a public body not affording the petitioner due process is in direct violation of the petitioners fundamental rights and therefore writ is maintainable in the
instant case.
The learned Advocate for the respondent No. 3 contended that
the petitioners ought to have resorted to the appellate forum contemplated under clause 8.12 of the the Q¡L¥l£ ¢h¢d J ¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da-2009) and further contended that writ is not maintainable since there is other efficacious remedy.
Here we must pause to observe that some of the submissions of
the learned Advocate for the respondent No. 3 are inconsistent. On
one hand learned Advocate for the respondent No. 3 contends that the petitioners could have availed the appellate forum under clause 8.12
while in the same breath he contended that the petitioners do not fall
within the category of employees rather they fall within the category
of ‘worker’ within the meaning of labour law and ought to have
resorted to the labour court to seek redress.
Be that as it may however we are of the considered opinion that
the petitioner’s fundamental rights have been violated and the respondents represents a public body, the petitioners ought to have
been afforded due process which is their constitutional right and also
has right under clause 8.06 of the Q¡L¥l£ ¢h¢d J ¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da-2009) . Such being our opinion, we are inclined to dispose of
the matter.
In the result, the Rule is disposed of with directions and observations made above.
The impugned notification purported to have been issued vides
memo No. No. ¢jC/fÐn¡-32/12/2016/239 (ANNEXURE-E), ¢jC/fÐn¡- 32/12/2016/246 (ANNEXURE-E1), ¢jC/fÐn¡-32/12/2016/245 (ANNEXURE-E2), ¢jC/fÐn¡-32/12/2016/241 (ANNEXURE-E3), ¢jC/fÐn¡-32/12/2016/240 (ANNEXURE-E4) and ¢jC/fÐn¡-32/12/2016/244 (ANNEXURE-E5), dated 23.02.2016 under the signature of the respondent No. 05 dismissing the petitioners from the service is
declared to be without lawful authority and is of no legal effect. The respondents are hereby directed to proceed against the petitioners
under clause 8.06 of the the Q¡L¥l£ ¢h¢d J ¢e−u¡N e¢aj¡m¡ 2008 (pw−n¡¢da- 2009) and dispose of the matter in accordance with law.
Communicate this judgment at once.
Fatema Najib, J:
I agree.
Arif(B.O)