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Membership of A Trade Union

Applicant shouldn't be member of other registered organisations

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21st-Dec-2019       
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High Court Division :
(Special Original Jurisdiction)
Gobinda Chandra Tagore J
Mohammad Ullah J
Mujibar Rahman (Md) and
2 (two) others …..Petitioners
vs  
Bangladesh represented by the Secretary,
Ministry of Labour, Bangladesh and
3(three) others…..........Respondents
Judgment
March 11th, 2019
Bangladesh Labour Act (XLII of 2006)
Section 179 (1) (c)
Wherein Section 179(1)(c) speaks about the manner in which a worker may become a member of the trade union, specifying therein that no worker shall be enrolled as its member unless he applies in the form set out in the constitution declaring that he is not a member of any other trade union……………………(18)
Assessing Officer, Narayanganj Range, vs Burmah Eastern Limited, 1981 BLD (AD) 450 = 34 DLR (AD 29; Bangladesh Bank vs Zafar Ahmed Chowdhury, 56 DLR (AD) 175; Government of Bangladesh represented by the Secretary, Ministry of Works vs Asaf Khan, 22 BLC (AD) 40; Golzar Hosain (Md) Advocate vs Janata Bank, 65 DLR (AD) 101; ABM Asgarr vs The Administrator and the Chairman of the Allotment Committee, Dhaka, 5 ALR (AD) 74 ref.
Mantu Chandra Ghosh, Advocate-For the Petitioners.
ASM Nazmul Haque, DAG-For the Respondent No.2
Mahbubul Haque with Abdullah Al Masud with Md Nasir Shikder and Mahmudul Haque, Advocates-For the Respondent No.4.
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, at the instance of 3 (three) trade unions of Bangladesh Inland Water Transport Authority (BIWTA), the Rule Nisi was issued calling upon the respondents to show cause as to why the order dated 21-6-2016 (sic 22-6-2016) issued by the respondent No.2 declaring the respondent No. 4 as the Collective Bargaining Agent (CBA) of BIWTA shall not be declared to have been issued without lawful authority and is of no legal effect and/or why such other or further order or orders as to this Court may seem fit and proper shall not be passed.
2. Subsequently, at the instance of the petitioners, on an application, a Supplementary Rule was issued calling upon the respondents to show cause as to why the registration of the trade union in the name of the respondent No.4 having Registration No. B-2176 should not be declared to have been given without lawful authority and is of no legal effect and/or why such other or further order or orders as to this Court may seem fit and proper shall not be passed.
3. The facts relevant for disposal of the Rule as stated in the Writ Petition as well as in the application for Supplementary Rule are that the petitioner No. 1 is a Member of Bangladesh Inland Water Transport Union having Registration No. B-1440 registered in the year, 1969; the petitioner No.2 is the President of BIWTA Master Pilot and Staff Union having Registration No. Chatta-1692 registered in the year, 1968 and the petitioner No 3 is the former President and a general member of Bangladesh Inland Water Transport Authority Floating Workers Union having Registration No. B-1320 registered in the year, 1968. The Deputy Director, Directorate of Labour issued a letter on 18-10-2016 providing information with regard to 3 (three) trade unions under the BIWTA. A Memo dated 7-2-2019 has also been issued by the Deputy Director, Directorate of Labour providing information that there is another trade union, namely, Bangladesh Inland Water Transport Sramik Karmachari Union having Registration No. B-1928 registered on 18-12-1990. It has further been stated in the Writ Petition that under the provisions of Labour Law, 2006 there is no provision for forming more than 3(three) trade unions in an establishment. While there were 4 (four) trade unions under the BIWTA the Secretary, BIWTA vide Memo dated 28-12-2015 requested the respondent No.2, Director of Labour to give more registration for trade unions if they desire to be registered. In the aforesaid facts and circumstances, the registration of the respondent No. 4 was given by violating the provisions of Section 179(5) of the Labour Law, 2006 (hereinafter referred to as the Act, 2006). Therefore, the impugned Memo dated 22-6-2016 issued by the respondent No.2, declaring the respondent No.4 as the CBA of BIWTA is liable to be declared to have been issued without lawful authority and is of no legal effect. Subsequently, the petitioner No. 1 came to know that the respondent No.4, trade union was formed by some persons who were the member of the petitioner No. 1's trade union. The petitioner No.1 filed an application on 31-3-2016 to the Director of Labour to know the whereabouts of the trade union of the respondent No. 4 and it's Constitution, the list of members, the list of the executive committee and other relevant informations, but the Director of Labour did not provide any such information. On 28-7-2016 7 (seven) persons including the petitioners filed an application to the registrar of trade union praying for cancellation of declaration of the CBA of BIWTA and for holding fresh election, but the respondent No. 2 did not take any step. Subsequently, all the petitioners filed another application to the respondent No.2 in order to get information with regard to the registration of the respondent No.4, but the respondent No.2, did not provide any sort of information to the petitioners, and therefore, they could not file any petition before the Labour Court within 1 (one) month to take recourse to law and as such, they finding no other equally and efficacious remedy filed the instant Writ Petition and obtained the Rule and the supplementary Rule as stated above.
4. The respondent No.2, Director of Labour and the respondent No.4 have contested the Rule by filing separate affidavits-in-opposition. The common case of the respondent Nos. 2 and 4 are as follows:
The respondent No. 4 on 16-2-2016 got registration No. B-2176 as the third trade union of BIWTA on 7-6-2016, the respondent No.2, registrar of trade union wrote a letter to all the unions of BIWTA seeking their opinion as to whether they were interested in participating in the CBA election of BIWTA. But, the petitioners No.1 and 3 by separate letters dated 15-6-2016 and 19-6-2016 expressed their unwillingness to participate in the CBA election. Only the respondent No. 4 expressed its interest in participating in the CBA election and filed an application on 16-6-2016 to the registrar of trade union to that effect. As the petitioners Nos. I and 3 did not intend to participate in the CBA election, the respondent No.4 was declared as CBA of the BIWTA. Accordingly, the respondent No. 4 has been functioning as the CBA of the BIWTA. Thus, there being no merit in the Rule as well as in the Supplementary Rule, the Rules are liable to be discharged inasmuch as the Writ Petition is not maintainable as there is an alternative forum for the petitioners to seek redress, if any, before the registrar of trade union as well as in the Labour Court.
5. At the outset, Mr Mantu Chandra Ghosh, learned Advocate appearing for the petitioners submits that while there were 4 (four) registered trade unions under the BIWTA, the respondent No.2 gave registration to the respondent No.4 as the 5th trade union at the influence of the Secretary of BIWTA and, as such, the same is liable to be declared to have been given without lawful authority and is of no legal effect.
6. The learned Advocate submits further that the petitioners No. 1 and 3 never wrote letters dated 15-6-2016 and 19-6-2016 addressing to the respondent No.2 expressing their unwillingness to participate in the CBA election.
7. The learned Advocate next submits that one Md Nurul Amin Sarkar claiming himself as the acting Secretary of the trade union of the petitioner No. 1 purportedly filed an application dated 15-6-2016 to the Director of Labour informing the unwillingness of the trade union of the petitioner No.1 to participate in the CBA election while it appears from the Annexure-E-l that the said Md. Nurul Amin Sakar was the Executive President of the respondent No. 4 before the respondent No.4 trade union was registered on 16-2-2016 and, as such, the declaration of the respondent No.4 as the CBA is liable to be declared to have been given without lawful authority and is of no legal effect.
8.  The learned Advocate next submits that since the formation and the registration of the respondent No. 4's trade union are illegal and without lawful authority, declaration of the respondent No. 4 as the CBA of BIWTA is also liable to be declared to have been given without lawful authority and is of no legal effect.
9. The learned Advocate having referred to the decision in the case of Assessing Officer, Narayanganj Range, vs Burmah Eastern Limited reported in 1981 BLD (AD) 450 = 34 DLR (AD) 29 and in the case of Bangladesh Bank vs Zafar Ahmed Chowdhury, reported in 56 DLR (AD) 175 submits that since the registration of the respondent No. 4 as the 5th Trade Union of BIWTA was without jurisdiction, the alternative remedy need not be availed of when the petitioners' right adversely affected by the impugned order dated 22-6-2016 inasmuch as the remedies available before the Director of Labour as well as the Labour Court is not an efficacious remedy, and therefore, the Writ Petition is very much maintainable and, as such, the Rule as well as the Supplementary Rule should be made absolute.
10. On the other hand, Mr Mahbubul Haque, learned Advocate appearing for the respondent No.4 submits that the petitioners' grievance, if any, may be addressed before the registrar of trade union as well as the Labour Court concerned and, as such, there being equally and efficacious remedy the Writ Petition is not maintainable.
11. The learned Advocate for the respondent No.4 next submits that since the petitioners No.1 and 3 expressed their unwillingness to participate in the CBA election of BIWTA, the respondent No.2, Director of Labour declared the respondent No.4 as the CBA of BIWTA under the provisions of Section 202(5) of the Act, 2006.
12 The learned Advocate intends to rely on the decisions made in the cases of-
(1) Government of Bangladesh represented by the Secretary, Ministry of Works vs Asaf Khan, reported in 22 BLC (AD) 40;
(2) Golzar Hosain (Md), Advocate vs Janata Bank reported in 65 DLR (AD) 101;
(3) ABM Asgarr vs The Administrator and the Chairman of the Allotment Committee, Dhaka reported in 5 ALR (AD) 74; and
(4) Sadekul Islam (Md) vs Registrar of Trade Unions reported in 9 BLC 316 and an unreported judgment and order dated 9-2-2017 passed in Writ Petition No. 6857 of 2012.
13. The respondent No. 2 has adopted the submissions of the respondent No. 4.
14. We have considered the submissions of the learned Advocate and perused the materials on record.
15. The questions for determination are whether the registration of the respondent No.4 as the trade union of- BIWTA had been given in accordance with law within the jurisdiction of the respondent No. 2 and whether the declaration of the respondent No.4 as the CBA of BIWTA had been given lawfully or not.
16. Before entering into the factual matter let us examine the provisions of law.
17. Section 178 of the Act, 2006 provides the requirements for registration of a trade union. Section 178(2)(V) of the Act, 2006 provides that the application for registration of a trade union shall be accompanied by the name of the establishment to which the trade union relates and the total number of workers employed or working therein.
18. Section 179 provides for the procedure of registration of a trade union. Wherein section 179(1)(c) speaks about the manner in which a worker may become a member of the trade union, specifying therein that no worker shall be enrolled as its member unless he applies in the form set out in the constitution declaring that he is not a member of any other trade union.
19. Sub-section (2) of section 179 provides that a trade union workers shall not be entitled to registration under this Chapter, unless it has a minimum membership of 30% (thirty percent) of the total number of workers employed in the establishment in which it is formed.
20. Provided that where more than one establishment under the same employer are allied to and connected with one another for the purpose of carrying out the object and purpose of the same industry, they shall irrespective of their place of situation, be deemed to be one establishment for the purpose of this sub-section.
21. Sub-section (5) of Section 179 creates an embargo to the effect that no registration shall be provided to more than 3 (three) trade unions at any time in an establishment or group of establishments.
22. While Section 190 of the Act, 2006 provides the procedure - for cancellation of registration of a trade union. Sub-section (I) of Section 190 provides that subject to other provisions of this section, the Director of Labour may cancel the registration of a trade union, if-
 (a) the trade union applies for cancellation of registration;
(b) it ceased to exist;
 (c)     it obtained registration by fraud or by misrepresentation of facts;
(d) It contravened any of the basic provisions of its constitution;
 (e) it committed any unfair     labour practice;
(f)    its membership has fallen short of the number of membership required under this Chapter; or
(g)     it contravened any provision of this Chapter or the rules.
23. Sub-section (2) of Section 190 provides that if the Director of Labour is satisfied on enquiry that the registration of a trade union needs to be cancelled, he shall submit an application to the Labour Court seeking to do so. Sub-section (3) of Section 190 provides that after obtaining such permission the Director of Labour shall cancel the registration of a trade union within 30(thirty) days from the date of receipt of the permission from the Labour Court concerned.
24. Sub-section (4) of Section 190 puts an embargo that the registration of a trade union shall not be cancelled on the ground mentioned in Sub-section (1)(e), unless an application is submitted to the Labour Court within 3(three) months of the occurrence of unfair labour practice by such trade union mentioned in the allegation.
25. In the instant case, first dispute arose when the Director of Labour declared the respondent No.4 as the CBA of BIWTA by the impugned letter dated 22-6-2016 (Annexure-G to the Writ Petition). It appears from the letter dated 18-10-2016 issued by the Deputy Director, Directorate of Labour, Annexure- 5 to the affidavit-in-opposition of the respondent No. 4 corresponding to Annexure-C-l to the Writ Petition, that at least there were 3(three) trade unions under the BIWTA. Those are (I) BIWTA Floating Workers Union having Registration No. B-1320 registered in the year, 1968, (2) Bangladesh Water Transport Authority Employees Union having Registration No. B-1440 registered in the year, 1969, (3) Bangladesh Inland Water Transport Authority Sramik Karmochari Union registered on 16-2-2016.
26. Besides it appears from the letter dated 7-2-2019 (Annexure-IX to the supplementary of the petitioner) issued by the Deputy Director, Directorate of Labour that there is another trade union, namely, Bangladesh Inland Water Transport Authority Sramik Karmachari Union having Registration No. B-1928 registered on 18-12-1990. On the other hand, from the letter dated 9-8-2017 issued by the registrar of trade union it appears that the registration No. Chatta.1692 dated 2-9-1993 of BIWTA Master Pilot and Staff Union had been cancelled pursuant to the order of the 1st Labour Court, Chattogram passed in IR Case No. 37 of 2017. Therefore, at least there were four other registered trade unions under the BIWTA when the trade union of the respondent No. 4 bearing Registration No. B-2176 registered on 16-2-2016. But Sub-section (5) of Section 179 prohibits from registering more than 3 (three) trade unions at a time in an establishment or group of establishments. So, the registration of the trade union, namely, BIWTA Master Pilot and Staff Union bearing Registration No. Chatta-1692 as the 4th registered trade union and the registration of the respondent No. 4 namely, Bangladesh Inland Water Transport Authority Sramik Karmachari Union, bearing Registration No. B2176 as the 5th trade union were given by the registrar of trade union without jurisdiction'.
27. Since, the registrations of the said 4th and 5th trade unions were given by the respondents No.2 or 3 without jurisdiction the same were void abinitio. However, it appears that the registration of BIWTA Master Pilot and Staff Union bearing Registration No. Chatta-1692 was cancelled on 98-2017. Even after such cancellation of the Registration No. Chatta-1692, the registration of the respondent No, 4 remains as the 4th trade union which is prohibited by sub-section (5) of the Section 179 of the Act, 2006.
28. We have already found the registration of the respondent No.4 was given by the Directorate of Labour, without jurisdiction as well as wholly without lawful authority and therefore, the alternative remedy provided in the statute does not preclude this Court from exercise its jurisdiction under Article 102 of the Constitution.
29. We find support our aforesaid views from the case of Assessing Officer, Narayanganj Range, vs Burmah Eastern Limited reported in 1981 BLD (AD) 450 = 34 DLR (AD) 29 wherein it was held that-
"As we have found the impugned action without jurisdiction, the question of availing statutory alternative remedy does not arise. We are of opinion that the High Court Division has rightly held that the Writ Petition was maintainable."
30. Similarly, we have found the support of our views from the case of Bangladesh Bank vs Zafar Ahmed Chowdhury, reported in 56 DLR (AD) 175 wherein their Lordships held that:
"If an order affecting one's legal right is challenged as wholly without authority, alternative remedy provided by the statute will not stand in the way of the exercise of writ jurisdiction."
31. Therefore, the writ petition is maintainable on the authority of the decisions in the cases cited above, although the remedies by way of filing an application to the Director of Labour or then to the Labour Court provided in Section 190 of the Act, 2006 were not availed of. In view of the above, we are in respectful agreement with the principle laid down in the aforesaid decisions of the Appellate Division.
32. On the other hand, the decision as have been referred to by the learned Advocate for the respondent No. 4 propounded the principle that the Writ Petition is not maintainable if alternative efficacious remedy is provided in the statute are not applicable in the present facts and circumstances of the case in hand. Section 190 of the Act, 2006 provides for remedy on certain facts and circumstances. But in the instant case, we have found that the registration of the respondent No.4 was void abinitio which requires no further formal cancellation.
33. In the aforesaid facts and circumstances, we find merit in the Rules and, as such, the Rule and the Supplementary Rule should be made absolute.
34. Accordingly, the Rule and the Supplementary Rule are made absolute.
35. The Director of Labour is hereby directed to take necessary steps for holding CBA Election of BIWTA within 30 (thirty) days from the date of receipt of this judgment and order in accordance with law.
36. During the proceeding of the instant Writ Petition, the respondent No.2, Director General, Department of Labour (corresponding to the former post of Director of Labour) was directed to appear before this Court with the concerned record, accordingly he appeared and his personal appearance was dispensed with for the time being. Since we have concluded the matter, the appearance of the respondent No. 2 is hereby dispensed with. 

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