High Court Division (Special Original Jurisdiction)
Writ Petition No. 1409 of 1998
Samir Malaker
Vs
The Chairman, Divisional Labour Court
Khulna and another
Before Mr. Justice MM Ruhul Amin and
Mr. Justice AFM Ali Asghar
Date of Judgment : May 28, 2003
Result : Rule absolute

Background
M M Ruhul Amin, J: This Rule Nisi was issued calling upon the respondents to show cause as to why the judgment and order dated 9.2.98 passed by the respondent No. 1 in IRO Case No. 48 of 1996 should not be declared to have been passed 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 case of the petitioner in a nutshell is that he was appointed as Comptist on 1.12.1985 for a period of 3 months by the respondent No. 2 in the Provident Fund section and the petitioner joined accordingly on casual basis. Thereafter his service was extended from time up to 14.7.86. The respondent No. 2 by letter dated 8.6.87 appointed the petitioner as composite on ad-hoc basis and his basic salary was fixed at Tk 750/- per month. His salary was subsequently re-fixed from time to time. The petitioner also allowed all increments and 10% increment as decided by the Government and also got time scale for rendering requisite period of his service. The petitioner also got 2 yearly bonus and other benefits like other regular employees. The petitioner got higher scale with effect from 1.7.95. The petitioner thus worked for about 10 years and got all benefits like a permanent worker and the respondent No. 2 informed the petitioner verbally that his service was treated as permanent from the date of his joining.

The respondent no. 2 in October, 1996 appointed some ad-hoc workers but their previous services were not counted. The petitioner came to know that he will be appointed afresh without counting his 10 years service on ad-hoc basis. The petitioner accordingly on 15.10.96 submitted a grievance petition by registered post with A/D and demanded that his service be treated as permanent from the date of his joining. The respondent No. 2 received the same and verbally informed the petitioner that they will not do any thing according to the demand. The petitioner then filed IRO Case No. 48 of 1996 before the Labour Court, Khulna for declaration of his service as permanent from the date of his joining on ad-hoc basis. The respondent No. 2 appeared before the Labour Court and filed written statement by denying all material facts and prayed for dismissal of the case. The Labour Court, Khulna dismissed the case by judgment and order dated 9.2.98.

It is submitted that the petitioner was appointed as casual worker as defined under section 4 of the Employment of Labour (SO) Act, 1965 and his probation period was six months from his appointment and should be treated as a permanent worker after completion of the probation period and as such the impugned judgment and order of the Labour Court is without any lawful authority. It is also submitted that the petitioner has been serving for a period of 10/12 years continuously without break and under such circumstances he should be treated as a permanent worker allowing him all facilities like a permanent worker.

Being aggrieved the petitioner moved this court and obtained the present Rule.

Deliberation
We have heard Mr. Kh. Gulzar Hossain the learned Advocate for the petitioner and Mr. Tufailur Rahman the learned Advocate for the respondent No. 2.

It is undisputed that the petitioner was first appointed by the respondent No. 2 as comptist in the provident fund section on casual basis for a period of 3 months by the appointment letter dated 30.11.1985 and the petitioner accordingly joined. It is also undisputed that the temporary appointment of the petitioner as casual basis was subsequently extended thrice vide Annexure A series. Annexures B to the writ petition shows that the respondent No. 2 appointed the petitioner as comptist on ad-hoc basis to the provident fund section by order dated 8.6.1987 in the National Pay Scale of Tk. 750-1550 with other benefits also. It was further mentioned that he will be entitled to get normal annual increment from 1st January, 1988 and his appointment may be ceased at any time but he will not be entitled to PF and Gratuity until his service was made permanent. It is also undisputed that the petitioner was given annual increments and his pay scale was also raised from time to time accordingly. Annexure-C series to the writ petition show that the petitioner was given higher scale and his increment was given in the higher scale. Annexure-D to the writ petition shows that the petitioner was given additional increment and his pay was accordingly fixed at higher stage.

The further case of the petitioner is that already he has rendered more than 10 years service on ad-hoc basis and he has not made permanent worker. The learned Advocate for the petitioner submits that under section 4 of the Employment of Labour (Standing Order) Act 1965 workers have been classified as apprentices, badlis casual, permanent, probationer and temporary. The period of probation for a worker whose function is of clerical nature, shall be six months and for other workers such period shall be three months, including breaks due to leave, illegal loc-out or strike (not being an illegal strike) in the shop for commercial or industrial establishment.

It is undisputed that the petitions was appointed as comptist and he was performing the job of clerical nature and according to the petitioner his period or probation shall be six months. And after 6 months his service is to be treated as permanent. It is true that the petitioner was initially appointed as a casual worker and then appointed on and-hoc basis.

The learned advocate for the respondent no. 2 submits that a worker can be appointed on temporary or casual basis but he cannot be appointed on ad-hoc basis under section 4 of the Act. The respondent No. 2 being aware of the legal position that there was no provision for appointment of the petitioner on ad-hoc basis appointed him as such only to avoid the provision of section 4 of the Act. Mr Tufailur Rahman tried to argue that a worker appointed on temporary basis on completion of the period of probation is to be treated as permanent. As the petitioner was not appointed on temporary basis rater on ad-hoc basis he cannot claim to be treated as permanent worker.

It is true that there is no provision in the Act to appoint a worker on ad-hoc basis under section 4 of the Act but still the respondent no. 2 appointed the petitioner as such. If the petitioner is treated as temporary worker then his period of probation will be 6 months as his function was clerical in nature. And on completion of 6 months probation period he would be treated as a permanent and entitled to get all benefits of his service including gratuity etc. In the instant case the petitioner has been serving in the post of comptist continuously for the last more than 10 years.

The learned Advocate for the petitioner submits that there is no complain against the petitioner and he has been serving in the Provident Fund section of the Mills for the last more than ten years but has not been made permanent. The learned Advocate for the petitioner cited the case of Managing Director, Rupali Bank Limited and others Vs Chairman, Ist Labour Court and others reported in 46 DLR 143. In that case it has held that, the term "temporary worker" has a connotation which is different from popular and dictionary meaning of the term. The term temporary worker as defined in section 2(s) of the Employment of Labour (Standing Orders) Act, 1965 means "worker" who has been engaged for work which is essentially of a temporary nature and is likely to be finished within a limited period.

Further, the term permanent worker has been defined in section 2(m) of the Act to mean "a worker who has satisfactorily completed the period of his probation in the shop or the commercial or the industrial establishment. "In that case it was further held that, thus having regard to the language employed in the above sub-section of the Act it is clear that the worker in order to the treated as permanent worker need not require appointment on permanent basis. It will be sufficient if he has satisfactorily completed the period of probation. In the instant case the petitioner who initially was employed on casual basis and subsequently on ad-hoc basis rendered more than 11 years continuous service and in the circumstances of the case we are of the view that the petitioner must be treated as a temporary worker.

It is undisputed as we have already indicated that the respondent No. 2 has given annual increments and others service benefits to the petitioner as per law like permanent worker and his salary was fixed like a permanent worker. Therefore, in our view the case reported in 46 DLR 143 is fully applicable to the facts of the present case and the mere fact that the petitioner was appointed on ad-hoc basis will not disentitle him from getting the benefit under section 4 of the Employment of Labour (Standing Orders) Act, 1965, the learned Labour Court without considering the material facts and legal position committed error of law in dismissing the case of the petitioner and the same is not tenable in law and liable to be set aside.

The rule is accordingly made absolute without any order as to costs. The judgment and order dated 9.2.98 passed by the respondent no. 1 are hereby declared to have been passed without any lawful authority and to of no legal effect.

The respondent no. 2 is directed to treat the petitioner as permanent worker from the date of appointment on ad-hoc basis that is with effect from 8.6.1987.

Mr. Kh. Gulzar Hossain, for the petitioner and Mr. Tufailur Rahman for respondent No. 2.