High Court Division
(Civil Revisional Jurisdiction)
Sharif Uddin Chaklader J
Sheikh Md Zakir
Hossain J
Judgment
October 14th, 2012.
Glaxo Bangladesh Ltd.
and another.
……………… Defendant Appellant -Petitioners
vs
Md Badrul Islam. . . .
Plaintiff- Respondent
Opposite Parties
Master and Servant
One who exercises personal authority over another, is the master and that other is his servant. A person employed by another to render personal services to the employer is a servant. A servant employee is a person that attends another for the purpose of performing menial offices for hire, or how is employed by another for such offices or other labour, and is subject to his command. .. …. (13)
Rupali Bank Ltd. vs Arab Ali, 7 BLC (AD) 1; Bangladesh vs Md Alauddin, 38 DLR (AD) 81; Uttara Bank Ltd. vs Shahabuddin Khan, 59 DLR 166; Managing Director of Rupali Bank Ltd. vs Tafazal Hossain, 44 DLR (AD) 260; Senior Manager, M/s. Dosta Textile Mills-Ltd. vs Sudhansu Bikash Nath 40 DLR (AD) 45 ref.
Mahbubul Haque, Advocate-For the Defendant Appellant-Petitioners.
Abdur Razzaq, Advocate-For the Plaintiff-Respondent-Opposite Party.
Judgment
Sharif Uddin Chaklader J: This rule, at the instance of defendants, directed against judgment and decree dated 24-6-2008 passed by the learned Additional District Judge, 1st Court, Chittagong, dismissing Other Appeal No. 416 of 2007 affirming those dated 30-9-2007 passed by the learned Senior Assistant Judge, 3rd Court, Chittagong decreeing Other Suit No. 74 of 1994.
2. It is the case of plaintiff-opposite party that, he was appointed as Charge Hand of petitioner No.1 on 1-7-1981, was promoted to the post of Supervisor in 1981 and had been working in Granule Packing section till he was terminated on 26-9-1990 with effect from 1-10-1990 under section 19 of Bangladesh Employment of Labour (Standing Order) Act, 1965 along with other 86 workers. Due to said termination, plaintiff/respondent-opposite party and other workers resorted to strike, consequently the defendant-appellant-petitioner’s Company declared lock-out and upon bipartinate negotiation with the Collective Bargaining Agent agreement was signed on 24-2-1991 for converting the order of termination to an early retirement under Early Retirement Scheme so that the workers will get early retirement benefits which is more than the termination benefit and accordingly all the terminated workers including plaintiff-respondent-opposite-party received early retirement benefit.
3. After receiving the early retirement benefit plaintiff instituted Other Suit No. 74 of 1991 challenging his termination order on the ground that he was illegally terminated on 1-10-1990; his termination order was converted to an early retirement in pursuant to the agreement signed with Collective Bargaining Agent on 24-2-1991 but the Collective Bargaining Agent was not authorized to sign the agreement on behalf of the plaintiff; termination order was issued with ill motive and after termination, one, Sukla Barua was appointed in his place violating the verbal promise of appointing the plaintiff in case of the new appointment and that the defendant violating the provision of section 13 of Bangladesh Employment of Labour (Standing Order) Act, 1965 appointed Sukla Barua and as per said provision opposite party ought to retrench on “last come first go basis.” Plaintiff sent grievance petition on 7-4-1991 and thereafter filed the suit.
4. Plaintiff after having dissatisfied with the order dated 26-9-1990 filed application for amendment of the plaint on 7-6-1992 under Order VI, rule 17 of the Code of Civil Procedure which was allowed. Appeal was taken before the learned District Judge, Chittagong who dismissed the appeal. Against which, opposite party No. 1 moved before the High Court Division in Civil Revision No. 660 of 2000 in which rule was issued and ultimately the rule was made absolute holding that the case of plaintiff-opposite party who being not an officer of a registered Trade Union, his case was not maintainable before the Labour Court as such his case was maintainable before the Civil Court and sent back the record on remand to the Court of Senior Assistant Judge, 3rd Court, Chittagong for fresh trial.
5. The case of defendant-petitioner is that, due to financial crisis defendant terminated from service 87 workers including the plaintiff on 26-9-1990 with effect form 1-10-1990. Due to the said termination, the workers resorted to illegal strike consequently the Employer had to declare lock-out. An agreement was signed between the Collective Bargaining Agent and the Management converting the termination order into an order of early retirement which was much more beneficial to the workers.
6. Both the courts decreed the suit.
7. Mr Mahbubul Haque, the learned Advocate, appearing for the defendant-petitioner, submits that, the defendant-petitioner is a private company and relation between employer and the employees are governed by master and servant rule in which the employee if aggrieved can move for termination benefit not for reemployment which the courts below failed to consider.
8. Mr. Abdur Razzaq, the learned Advocate, appearing for the opposite party, on the other hand, submits that, it is not denied that defendant petitioner is a private company but for illegal termination plaintiff can move before the Civil Court for his grievances including re-appointment to his original post and cadre.
9. On the pleadings of the parties the question calls for determination as to whether plaintiff’s prayer for re-instatement to his original post can be decreed in front of admitted position that defendant company is a private company.
10. Private company, as per section 2 (U) of Company Law, 1994, Act 18 of 1994 stand as:-
Ò(U) cÖvB‡fU †Kv¤úvbx ewj‡Z Ggb †Kv¤úvbx‡K eySvB‡e hvnv cÖvB‡fU †Kv¤úvbx b‡n,
(A) †Kv¤úvbxi †kqvi, hw` _v‡K, n¯ÍvšÍ‡ii AwaKv‡i evav-Av‡ivc K‡i,
(Av) †Kv¤úvbxi †kqvi ev wW‡ebPv‡i hw` _v‡K, Puv`v `v‡bi wbwg‡Ë (subscription) Rbmvavi‡Yi cÖwZ Avgš¿b Rvbv‡bv wbwl× K‡i, Ges
(B) Bnvi m`m¨-msL¨v †Kv¤úvbxi PvKzix‡Z wbhy³ e¨w³Mb e¨ZxZ cv‡ki g‡a¨ mxgve× iv‡Lt Z‡e kZ© _v‡K †h, hw` `yB ev Z‡ZvwaK e¨w³ †hŠ_fv‡e †Kvb †Kv¤úvbxi GK ev GKvwaK †kqv‡ii aviK (share-holder) nb, Zvnv nB‡j Zvnviv, GB msÁvi D‡Ïk¨ cyibK‡í, GKRb m`m¨ ewjqv Mb¨ nB‡eb|Ó
11. Means the company formed privately by members who subscribe the whole of the capital among themselves. Thus a private company is a company which must be registered by its articles, a) restricts the right to transfer its share, b) limits the number of its members (exclusive of persons who are in the company as employee) to fifty and c) prohibits any invitation to the public to subscribe for any share or debentures of the company and ii) continues to observe such restrictions, limitations and prohibitions. Thus in private company the employees are not governed by any statutory law as regards their right but the service of the employees totally rests on the satisfaction of the management.
12. “Master” includes every person (except a pilot or harbour-master) having for the time being command or charge of a vessel; provided that, in reference to any boat belonging to a ship, “master’ shall mean the master of the ship.
13. He is to be deemed a master who has the superior choice, control, and direction of the servant, and whose will the servant represents, not merely in the’ultimate result of the work, but in the details. One who exercises personal authority over another, is the master and that other is his servant. A person employed by another to render personal services to the employer is a servant. A servant employee is “a person that attends another for the purpose of performing menial offices for hire, or who is employed by another for such offices or other labour, and is subject to his command. A person who, by contract or operation of law, is for a limited period subject to the control of another in a particular trade, business, or occupation.
14. According to Black’s Law Dictionary, Eighth edition, such relationship has been defined as:-
“The relation between two persons, one of whom (the master) has authority over the other (the servant), with the power to direct the time, manner, and place of the services. This relationship is similar to that of principal and agent, but that terminology applies to employments in which the employee has some discretion, while the servant is a most completely under the control of the master. Also, an agent usu. ‘acts for the principal in business relations with third parties, while a servant does not”
15. According to Tomlins Law of Dictionary this relationship has been defined as:-
The relation between a Master and a Servant, from the superiority and power which it creates on the one hand, and duty subjection, and as it were allegiance on the other, is, in many instances, applicable to other relations, which are in a superior and subordinate degree; such as lord and bailiff, I principal and attorney, owners and masters of ships, merchants and factors, and all others having authority to enforce obedience to their orders, from those whose duty it is to obey them, and whose acts, being conformable to their duty and office, are esteemed the acts of their principles.
16. A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means “retains the power of controlling the work”, a servant is a person subject to the command of his master as to the manner in which he shall do his work. A servant is an agent who· works under the supervision and direction of his employer and is a person engaged to obey his employer’s orders from time to time.
17. The relation of master and servant implies obedience, submission and respect on the part of the former the duty of protection and of gentleness and moderation in his bearing towards his servant. One who not only prescribes the end, but directs, or, at any time may direct, the means and methods of doing the work. One who not only prescribes the end of his work, but direct, or, at any moment may direct, the means also, or, as it has been put, , retains the power of controlling the work.
18. The prima facie test whether the relationship of master and servant or employer and employee existed was laid down as the existence of the right in the employer not merely to direct what work was to be done but also to control the manner in which it was to be done, the nature or extent of such control varying in different industries and being by its nature incapable of being precisely defined. The correct approach therefore to the question was held to be whether having regard to the nature of the work, there was due control and supervision of the employer.
19. It is admitted position that, petitioners are Private Company, as such agreement between the petitioners and these employees are governed by the principle of master and servant rule in which if any employee or worker dismissed from service he could only claim benefit, not re-appointment.
20. The submissions of the learned Advocate for the plaintiff-opposite party are of no substance. In the case of Rupali Bank Ltd. vs Arab Ali, reported in 7 BLC (AD) 1 wherein leave was granted to consider:-
“Leave was granted at the instance of the Rupali Bank Limited to examine the issue that as the Rupali Bank Ltd. was no longer a statutory organization, but a corporate body and a private bank when the order of dismissal from service was passed, the relationship between the Bank-employer and the plaintiff-employee was that of a master and servant and, as such, he was not entitled to get the reliefs as prayed for in the plaint.”
21. Mr. Mahbudul Islam, learned Advocate for the appellant, submits that on and from 6-4-1984 the relationship between the defendant-appellant and the plaintiff-respondent No.1 became that of master and servant and, as such, he is not entitled to be reinstated in service and refers to a decision reported in Bangladesh vs Md Alauddin, 38 DLR (AD) 81. We find force in the submission.
(To be continued)
