1. MD. NURUL ISLAM KHAN (CHAIRMAN).-This is an applica--tion under section 25(i)(b) of the East Pakistan Employment of Labour (Standing Orders) Act, 1965, hereinafter referred to as the Act.
2. The case of the first party was that he was appointed as Construction Foreman on 2.3-4-69 by the second party at a monthly pay of Rs. 1,200.00. He was doing his work quite satisfactorily till he became seriously ill on and from 16.3-70 to 16-4-70 for which he intimated the second party acid he applied for leave with a Medical Certificate on his recovery from the said illness. He was never given one and half days' consecutive leave in any week by the second party. The Administrative Manager of the second party expressed that he would terminate his services, but actually did not issue any termination letter. He was not allowed by the said Manager to carry on his duties as before. He submitted an appeal to the slid Manager. Then he wrote another letter for making full payment for his service if the same had been terminated. Thereafter the second party issued a letter dated 13-5-70 to the first party refusing all the claims. The first party has claimed full termination benefits as a permanent worker as per section 19 of the Act together with other benefits as per law.
3. The second party entered into appearance and filed written statement in which they stated that the second party was a contractor, firm to do some specific projects of the Government within the limited titre such as the Dacca-Aricha Highway. The project is a temporary one and as such all the employees employed in the same are also temporary. The first party was a temporary worker and he was a construction foreman. The second party admitted sickness of the first party which information they received from the wife of the first party. In the meantime, the first party did not apply for leave and hence he was directed to show cause within 5 days why disciplinary action would not be taken for remaining on unauthorised absence. But he did not reply in spite of having received the notice. On 18-4-70 the first party reported for duty in the Head Office. He was asked to go to the job site. But he did not go. As the services of the first party were temporary, the second party took a lenient view of this misconduct and terminated his services in writing. He is not entitled to 90 days' notice or pay in lieu thereof. He is also not entitled to annual leave as he did not complete 12 months' service. The nature of his work was supervisory and he is not a workman tinder the provision of the Standing Orders Act. Hence his case should be summarily dismissed.
4. Points for determination
(1) Whether the first party is a worker?
(2) Whether the first party is a permanent worker?
(3) What relief, if any, is the first party entitled to?
5. FINDINGS AND DECISION All the points would be dealt with together for the sake of convenient discussion and determination as these points are inter-related.
6. It has been stated that the first party was appointed as a construction foreman and as such his work was of supervisory nature and therefore, he would not be covered by the provisions of the Act.
7. This has been very seriously challenged by the first party who claimed that though his designation was construc--tion' foreman, but as a matter of fact, he had to do all odd jobs in the Company which were of manual, physical labour and he Was given a treatment by the Managements which theoretically and practically amounted to the treatment worth of a worker. The first party has at first invited our attention to his appoint--ment letter in which it was stated- that his service terms and conditions would be covered by the Labour Laws of the country and that he would be under probation for a period of 90 days. Only a worker is covered by the Labour Laws of the country and only a worker appointed to a permanent work can be kept under probation for 90 days or for any period as the law provides. For the clarification of this point I would like to invite reference to the definition of permanent worker, proba--tioner and temporary worker as given in section 2 of the Act "(m) `permanent worker' means a worker who has been engaged on a permanent basis or who has satisfactorily completed the period of his probation in the shop or the commercial or industrial establishment;"
8. "(p) `probationer' means a worker who is provisionally employed to fill a permanent vacancy in a post and has not completed the period of his probation ;"
9. "(s) 'temporary worker' means a worker who has been engaged for work which is essentially of temporary nature and is likely to be finished within a limited period ; It is admitted that the first party was kept under probation for a period of 90 days and that the second party in different letters admitted that his case would be governed by the labour laws of the country apart from their first admission they made in his appointment letter. This appointment letter is a printed paper of the second party Company. In their letter dated 21-4-70 also they referred to section 19(3) of the Act, and later in their letter dated 13-5-70 they also referred to the current labour law of the country and admittedly in this letter they referred to all provisions which were applicable to the case of worker. So it is established in the present case that the first party was given the position enjoyed by the worker, under the labour laws of the country and particularly the Standing Orders Act. Even after all these admissions of the second party they have challenged in this Court capitalising that the first party was a construction foreman. The first party went into evidence and examined 3 witnesses including himself. These witnesses were tested by the second party. The witnesses all. said that the first party had to do specific jobs which required his manual and technical labour. He had no supervisor and managerial work to do. The first party said that the second party made him to work from loading and unloading to all other manual work. He had neither the power to recruit any labourer or similar other things. He gave a detailed description of his work that he had to do. The two other workers Abdul Khaleque and Abdul Barek who also worked with the first party, considered him as an expert who knew the job, who guided, aided and checked their work and also could lend a helping hand to them for attainment of the maximum efficiency in a Particular work such as plumbing or carpentry work. So it is clearly established by evidence that the first, partywas a worker which has been earlier admitted by the appoint--ment letter of the first party. I have already pointed out that according to law only a worker employed against a permanent post can be kept under probation. As the first party was kept` under probation, he should be regarded as a permanent worker, after the probationary period. Thereafter it is again found that in the appointment letter no particular project was mentioned and as such it cannot be said that he was appointed against any particular project of temporary nature.
10. Therefore, the particular mention in the appointment letter in a printed form that the work was of temporary nature and that the post was temporary could not go according to law. If any terms derogatory to the term of employment as provided in the Act, is set by the employer, it is quite obvious that the law will prevail over any such adverse term given by the employer. So we find that the first party was a permanent worker. He completed his probationery period and worked for more than 3 months, but could not complete 12 months at a strench. It further appears that the second party drew up two charge-sheets against him, but could not prove them and he was exonerated from-- the charges by their letter dated 21-4-70. It appears that the services of the first party have been terminated without assigning any good reason though his services were all along sans factory as nothing adverse was proved against him. The first party proved to the satisfaction of the employer that he was really ill at that time and deserved consideration for that period. So it appears that his services had been illegally and improperly terminated. As he was a permanent worker he should have been given termination benefits entitled to by such a worker. This is a case where the first party should get the benefit of re-instatement to his former post with all dues. But it appears from the application of the first party that he has primarily prayed for termination benefits.
11. In the result it is ordered that the case be allowed on contest and the first party be given full termination benefits as are entitled to by a permanent worker. . The second party is directed to give the first party termination benefit as follows: Rs.
(1) Notice pay for 9J days at the rate of3,600'00 Rs. 1,200.00. per month.
(2) Sick leave pay for 14 days560'00.
12. Minus what has been paid already, if any.
13. The second party is directed to calculate and deposit the amount in Court to the credit of the first party within 30 days from the date of passing this order.
14. I have consulted the opinion of the members who have also agreed with my decision above.