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Criminal Revision No. 293 of 1963, decided oil 3rd July 1963.

Ss. 10(c), 11(3), 26, 28 & 30‑Industrial Court‑Held, criminal Court for pur poses of trial under S. 26 or 28‑Violation of provisions of S. 30 being punishable with substantive sentence and fine, proceeding under S. 28 purely of criminal nature‑Provisions of Cr. P. C. (V of 1898) relating to summons cases applicable to such trials‑Indus trial Court, held, subordinate to, and subject to appellate and revisional jurisdiction of, High Court‑Criminal Procedure Code (V of 1898), Ss. 5 (2), 200, 410 & 439.

, Ss. 12 (4), 26 & 28‑Word "decision" in S. 12(4)‑Does not include "decision" (in generic sense) in a case under S. 26 or 28 but means and refers to "decision" other than awards (made appealable) in indus trial dispute case‑Decision of Industrial Court under S. 26 or 28‑Held, not final in terms of S. 12 (4).

Ss. 11 (2), (3), 26 & 28‑Procedure laid down in S. 11 (2) not applicable to cri minal case‑Industrial Court in trying case under S. 28 not adopting procedure laid down in Cr. P. C. (V of 1898) applicable to summons cases‑Failure to observe legal procedure‑Illegality‑Not curable under S. 537, Cr. P. C. (V of 1898)‑Criminal Procedure Code (V of 1898), S. 200.

Muzammel Huq with Moksudur Rahman for Petitioner.

K. M. Subhan for Muksumul Hakim, Advocate‑General Amicus Curiae.

This Rule was obtained by the petitioner against the "decision" of the Industrial Court of East Pakistan.

2. Short facts necessary for disposal of this Rule are the following :‑The petitioner filed a complaint under section 28 of the Industrial Disputes Ordinance of 1959 (hereinafter referred to as the Ordinance) against the opposite- party for contravention of provision of section 30 of the said Ordinance. The contravention, according to the petitioner, was committed in the following manner :‑The petitioner was an employee of Messrs Octavius Steel and Company of Pakistan Limited serving as an accounts clerk. He was also the Secretary of the Octavius Steel Employees' Association. It is alleged that the opposite‑party who is a Director of the said Octavius Steel and Company of Pakistan Limited having failed in his attempts to persuade the petitioner to give up Union activities, resorted to all kinds of victimisation and out of the said motive, terminated abruptly the services of the petitioner on 16th May 1960 ; where upon the petitioner was obliged to file a case in the Industrial Dispute Court and the said Court held that the termination of the petitioner's service was illegal and males fide and also directed the opposite‑party to reinstate the complainant‑petitioner to his former post and to pay him all his arrear salaries. Pursuant to this order of the Court, the petitioner was reinstated on 13‑6‑61, but not to his former post and his arrear salaries in full were also not paid to him which resulted in a fresh dispute. Prior to this reinstatement, the petitioner submitted a Charter of Demands to the Management of Messrs Octavius Steel and Company of Pakistan Limited on 28th of April 1961, on behalf of the workers of the said company. Direct negotiations having failed between the Company and the Union, the dispute was referred to the Conciliation Officer who took up conciliation proceedings on 31st of May 1962, under section 5 of the Ordinance, with notice to the opposite‑party. The latter received the notice of conciliation proceedings on 31st of May 1962, and it is alleged that on the same day he handed over to the petitioner a letter terminating his services with effect from 1st of June 1962. On 31st of May 1962, the petitioner wrote back to the opposite‑party pointing out the illegality in his action of terminating the services of the petitioner during the pendency of the conciliation proceeding. The opposite‑party withdrew this letter of termination but replaced it by an order of suspension and also informed the petitioner that the opposite‑party would apply to the Industrial Disputes Court for permission to termi nate the petitioner's services. This order of suspension is said to have contravened the provisions of section 30 of the Ordinance and the petitioner wrote a letter to the opposite‑party pointing out the said illegality. The opposite‑party having taken no action on this letter of the petitioner, he presented the present complain upon which Industrial Dispute Case No. 72 of 1962 was started.

3. The opposite‑party having got notice of this Industrial Dispute Case No. 72 of 1962, entered appearance and filed a written statement denying all the allegations made in the com plaint by the petitioner. The defence broadly taken was that while issuing the order of suspension on the 4th of June 1962, it was made clear to the petitioner that an application for per mission was being made to the Industrial Dispute Court and also that the order of suspension was made effective on and from 6th of June 1962.

4. This letter of the opposite‑party dated 5th of June 1962, praying for permission from the Industrial Dispute Court for dismissing the petitioner is said to have been received in the office of the Industrial Dispute Court on the 7th of June 1962, and it is also alleged that this application was not formally moved before the Court. It is also stated by the petitioner, that a case on the slid application of the opposite‑party was registered in the office of the Industrial Dispute Court on 23rd of June 1962.

5. In the meantime, as stated, on the 18th of June 1962, the petitioner filed the present complaint before the Industrial Dispute Court against the opposite‑party for taking action under section 28 of the Ordinance on the grounds of contravention of the provisions of section 30 of the Ordinance. The present proceedings arise of the said petition of complaint dated 18th of June 1962.

6. It is found from the printed copy of the gazette con taining the order of the Industrial Dispute Court annexed to the petition, that this petition of complaint was registered as Indus trial Dispute Case No. 72 of 1962, and the order made by the Court has been termed as a "Decision".

7. The order of the Industrial Court dismissing this petition of complaint is mainly based on the interpretation of the letter of the opposite‑party dated 4th of June 1962.

8. The application of the opposite‑party to the Industrial Court for permission to terminate the services of the petitioner dated 4th of June 1962, has not been exhibited. The letter that was sent to the petitioner has been exhibited in this case and marked as Exh. 3. The said letter runs thus :‑----

"Ref : Staff/P‑59 "4th June 1962."

Mr. B. A. Chowdhury

North of Begum Pukur,

Agrabad, Chittagong.

Dear Sir,

With reference to your letter dated 31st May we would point out that in our view there is no Industrial Dispute at the present time regarding the interpretation of the Court award in Industrial Dispute Case No. 77/60, although we ourselves have applied to the Court for confirmation that the award has been correctly implemented by us."

"Nevertheless, in view of your position as a Union official, and in the light of information subsequently received by us that the Union's Charter of Demands was accepted by the Deputy Director of Labour on 31st May for conciliation, we withdrew our letter dated 31st May terminating your services, as requested by you."

"However, we are now applying to the industrial Court for permission to terminate your services, and under section 30, subsection (2) of the Industrial Dispute Ordinance, as recently amended, we are suspending your services with immediate effect, pending the decision of the Industrial Court in this respect."

"Yours faithfully,

Octavius Steel & Co. of Pakistan Ltd.,

Rogar Pearson. Director."

For our purpose we are concerned with the last paragraph of this letter. The last paragraph of the letter has been interpreted by the industrial Court and has been accepted to be legal in the following terms :‑

"The second party appeared in the case and denied substan tially all the allegations made by the petitioner. It is the case of the second party that the letter of Conciliation Officer was received by the company after the letter of termination of service had been issued on the first party. The second party so in order to be in the safe side and keep him free from any charge of violation of section 30 of the Industrial Disputes Ordinance, vacated the order of termination of service by a letter, dated 4th June 1962, and when on 4th June 1962, the second party wrote the letter to the first party, it was made clear that the second party was making an application to the Industrial Court for permission to terminate the service of the first party, and it was also stated in that letter that be was at the same time being put under suspension with immediate effect, i.e. immediately with effect from the date of the said application to the Court pending the Court's decision thereon. The application accordingly being sent to the Industrial Court on 5th June 1962, as per provision of section 30 (2) of the Industrial Disputes (Amendment) Ordinance, 1961 the suspen sion of the first party has been made effective on and from 6th June 1962, and the first party has been allowed his full pay up to and including 5th June 1962. The suspension of the first party from service having been made effective on and from 6th June 1962, after the application had been made to the Industrial Court on 5th June 1962, for permission to terminate his service and an intimation having been given to the Court through the application that in the meantime the first party was being put under suspension is quite legal and such action of the second party can under no circumstance, be termed as an infringement of section 30 of the Ordinance."

9. The petitioner has challenged the decision of the Indus trial Court on the grounds that the Industrial Court having not followed the procedure as laid down in the Code of Criminal Procedure for trial of the opposite‑party for an offence under section 28 of the Ordinance and also having not followed the summons procedure, committed illegality which has vitiated its order dated 12th of March 1963. Further it has been contended that the Industrial Court erred in law in issuing notice to the opposite‑party to file written statement and then trying the case in accordance with the provisions of the Code of Civil Procedure.

10. Next it has been contended that the Industrial Court, East Pakistan, did not apply its judicial mind to the facts and circumstances of the case and thereby fell into an error both in fact and in law. It has also been contended that the interpreta tion of the Industrial Court given to the letter of the opposite- party in regard to the meaning of the words "with immediate effect" is wrong in the context of the letter itself and this wrong interpretation has brought about a wrong decision in the case.

11. Mr. Asrarul Hossain, the learned Advocate for the opposite‑party contended that no revision lies against the decision of the Industrial Court as according to subsection (4) of section 12 of the Ordinance any decision of the Court other than an award shall be final and shall not be questioned in any manner by or before any judicial authority and also because the Indus trial Court is not a criminal Court but is a persona designata. His contention has also been that the procedure followed by the Industrial Court in the present case which seems to be a procedure adopted by it under subsection (2) of section I1 of the Ordinance is the correct procedure. He submits that although prior to the amendment of subsection (3) of section 11 of the Ordinance the Industrial Court was deemed to be a Court of the Magistrate, First Class ; it is not so after the amendment.

12. The penalty proposed under section 28 of the Ordinance for violations of provisions of section 30 thereof, is imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees or with both. Secondly, if there be no penalty provided by or under the Ordinance for such contravention, the penalty that may be imposed is a fine which may extend to one thousand rupees.

13. Procedure and powers of the Court, that is, of the Industrial Court has been laid down in section 11 of the Ordi nance which runs thus :‑----

"11 Procedure and powers of the Court.‑(1) The Court shall subject to the provisions of this Ordinance follow such procedure as may be prescribed.

(2) The Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Cod of Civil Procedure, 1908 (V of 1908), in cluding the powers of‑

(a) enforcing the attendance of any person and examining him on oath.

(b) compelling the production of documents and material objects ; and

(c) issuing commission for the examination of witnesses.

(3) The Court shall for the purpose of trying an offence under section 26 or section 28, have the same powers as that of a Court of the Magistrate of the First Class under the Code of Criminal Procedure, 1898 (Act V of 1898), and shall, for the purpose of appeal from a sentence passed by it, be deemed to be a Court of Sessions under that Code.

(4) No Court‑fee shall be payable for filing, exhibiting, recording or obtaining of any document of any kind in or from the Court."

Subsection (1) of section 11 of the Ordinance speaks of "a pro cedure to be followed by the Court as may be prescribed ; as may be prescribed" necessarily means as may be prescribed by Rules.

14. I am given to understand that certain Rules have been framed laying down the procedure to be adopted by the Industrial Court in the matters of adjudication and determination in indus trial disputes and of giving award but no procedure has been laid down for a trial under sections 26 and 28 of the Ordinance.

15. It will be seen from subsection (2) of section 11 of the Ordinance that the procedure that the Legislature wants the Court to follow in matters of industrial disputes is the procedure as laid down in Code of Civil Procedure. This procedure, in my opinion, does not apply to a case under section 28 or 26 of the Ordinance.

16. From a reading of the provisions of subsection (3) of section 11 of the Ordinance and also the provisions of penalty as laid down in section 28 of the Ordinance, that is, penalty of substantive sentence and fine, I find it extremely difficult to agree with Mr. Asrarul Hossain that the Industrial Court fort the purposes of trial under sections 26 and 28 of the Ordinance is not a criminal Court but is a persona designata. My reading of subsection (3) of section 11 of the Ordinance is that the Industrial Court while trying a case under section 26 or 28 shall do so as a Court of the Magistrate, First Class but in regard to appeals from orders of sentence passed by it, it shall be deemed to be a Court of Sessions under the Code of Criminal Procedure or in other words although the trial will be held by the Industrial Court as a Court of the Magistrate, First Class, the appeal from its orders shall not lie to the Court where an appeal from a First Class Magistrate, order normally goes under the provisions of the Code of Criminal Procedure. It will lie to a Court where shall lie the appeal under the Code of Criminal Procedure from a decision of Court of Sessions. Nothing, in my view, has been said in this section with regard to the non‑applicability of the provisions of the Code of Criminal Procedure in respect of a trial held by an In dustrial Court under section 26 or 28 of the Ordinance. No separate procedure either has been laid down for the Industrial Court to be followed while trying a case under section 26 or 28 of the Ordinance. In the absence of any special provision made in the Ordinance for the procedure to be adopted in a trial by the Industrial Court under section 26 or 28 of the Ordinance, I am of opinion that the provisions of the Code of Criminal Pro cedure shall apply to such a trial by the Industrial Court. In view of section 5 (2) of the Criminal Procedure Code the Indus trial Court so far as its power to hold a trial under section 26 or 28 of the Ordinance is concerned, is a Court Subordinate to the High Court and as such is subject to the revisional jurisdiction of this Court. 1, therefore, repel the contention of Mr. Asrarul Hossain, the learned Advocate for the opposite party, that, no revision against the decision of the Industrial Court lies to this Court in a matter like this.

17. Since it is found from the provisions of section 28 of the Ordinance that the violation of any of the provisions of section 30 of the Ordinance by a person is punishable with substantive sentence as well as fine ; it is a proceeding purely of a criminal nature and as such should be conducted in accordance with the relevant provisions of the Code of Criminal Procedure: as applicable to a summons case. 1n the present case, my view is that the Court should have examined the complainant under section 200 of the Code of Criminal Procedure and then issue sum mons to the opposite‑party, if found necessary and thereafter follow all the necessary procedures that ought to be followed in a summons case. In the present case the Court, as is apparent from the records followed the procedure as laid down in sub section (2) of section 11 of the Ordinance which is obviously wrong. The Industrial Court has treated the matter as an ordinary industrial dispute case which is more of a civil nature than the criminal. But in fact it is not so. It was a complaint for trying the opposite‑party under section 28 of the Ordinance for violation of provisions of section 30 thereof for which, as 1 have already stated, penalty of substantive sentence and fine has been provided for.

18. With regard to the contention of Mr. Asrarul Hossain that the decisions of the Industrial Court is final in terms of section 12 (4) of the Ordinance my view is that this subsection (4) of section 12 of the Ordinance does not or cannot take away the jurisdiction of superior Courts in respect of a decision of an Industrial Court trying a case under section 26 or 28 of the Ordinance cannot thereby supersede or control the remedies that are available to the parties under the Code of Criminal Procedure which is the law that governs the rights of appeal and revision in a criminal proceeding. The "decision" mentioned in sub section (4) of section 12 of the Ordinance does not, in my opinion, include a decision (in the generic sense), in a case under section 26 or 28 of the Ordinance, but means and refers to a "decision" other than awards (which have been made appealable) in industrial dispute case. No doubt the present proceeding is but an offshoot of an industrial dispute, but, it is not of the nature of an industrial dispute which is understood by the ordi nary meaning of the phrase "industrial dispute". It is a matter, although arising out of industrial dispute; of a completely different nature. It is a matter of violation of the provision of an Ordinance which has been made punishable specifically under a separate section of the Ordinance. The powers of the Industrial Court and the procedure that are to be adopted by it in a trial under section 26 or 28 of the Ordinance has been separately provided for and has, therefore, in my opinion, nothing to do with the decision in an industrial dispute as is understood by the said phrase.

19. Mr. Asrarul Hossain in support of his contention that the Industrial Court for the purpose of a trial under section 26 or 28 of the Ordinance is a persona designata, referred me to a decision of the Division Bench of this Court in the case of Azizul Huq v. S. M. Hanif Ltd., Dacca and others ((1955) 7 D L R 287). In that case this Court held that the Rent Controller is a persona designata no doubt that the District Judge who hears the appeal of the Rent Controller is not so because he has been designated as a District Judge. In my opinion, this decision instead of helping Mr. Hossain goes a long way to support the view that I am taking in the matter. The other cases that Mr. Hossain has referred me to in 48 Criminal Law Journal 206, 285 and 857 are the cases of L. Hari Kishan Das v. Emperor; Lala Ram Ratan Gupta v. P. H. F. Dodd and another. All these cases relate to the position or status of the Rent Controller under the House Control Act. That officer has been termed as "persona designata" by the Courts. No one controverts the correctness of the propositions laid down in those cases but I do not think that those are applicable to the case under my consideration.

20. Mr. Hossain has also submitted that the petitioner did not object to the procedure adopted by the Industrial Court during the pendency of the matter before the said Court. If there has been any defect in the procedure, it is curable under section 537 of the Code of Criminal Procedure.

21. The procedure, as I have already stated, adopted by the Industrial Court was the procedure as laid down in sub‑ D section (2) of section 11 of the Ordinance and is not at all applicable to a criminal case. As such I do not think that this contention of Mr. Hossain is tenable. Had there been an inadvertent omission of a particular procedure by the Industrial Court while holding the trial under the provisions of the Code of Criminal Procedure, then and then alone the provisions of section 537, Criminal Procedure Code would have come into play. But where the Code of Criminal Procedure was not at all followed and the procedure as laid down in the Code of Civil Procedure in a criminal case was followed, it cannot be said that such a wrong procedure can be cured by the provisions of section 537 of the Code of Criminal Procedure. In that view of the matter, the opposite‑party cannot now say that the petitioner is not entitled to agitate the question of procedure before me although he may not have raised it before the Industrial Court. The provisions of section 537, Criminal Procedure Code are also not available in a case where mandatory provisions of law have been violated.

22. Mr. Muzammel Huq, the learned Advocate for the peti tioner has referred me to a decision of the Calcutta High Court in the case of Ishan Chandra Sarkar v. Manmatha Nath Datta (37 C L J 298). In that case the President of the Calcutta Improvement Tribunal refused to hold an enquiry under section 20 of the Calcutta Rent Act on the grounds that the enquiry being of a criminal nature and there being no procedure laid down in the Calcutta Improvement Act, he could not hold the enquiry. The High Court held that in view of the provisions of section 29 read with section 5 (2) of the Code of Criminal Procedure the Courts which have not been mentioned in the Code of Criminal Procedure in matters like this, shall follow the procedure as laid down in the Code of Criminal Procedure the same effect is the decision in the case of Sishir Kumar Mitter v. Corporation of Calcutta (30 C W N 598). Mr. Muzammel Huq in support of his contention, that the provisions of the Code of Criminal Procedure are applicable in a case like this, has also relied on the decisions of the Bombay and Madras High Courts in the cases of Emperor v. Devappa Ramappa Naik (I L R 43 Bom. 607) ; Emperor v. Kaitan Duming Fernad (A I R 1931 Mad. 769) and (Muddi) Sudarsanam v. Emperor (A I R 1931 Mad. 769).

23. Now coming to the merits of the case and the last two submissions of the learned Advocate for the petitioner, I find substance in them as well. It has been alleged that the opposite -party violated the provisions of subsection (2) of section 30 of the Ordinance in suspending the petitioner with immediate effect from the 4th June 1962, when no application for permission to terminate his services by the opposite‑party was pending before the Industrial Court.

24. There is no controversy on the issue that the petitioner was suspended on and from the 4th of June 1962. It is also not controverted that the application whether it was in form or not by the opposite‑party to the Chairman of the Industrial Court is dated 5th of June 1962, in which he sought permission of the Court to terminate the services of the petitioner. I have already quoted the letter of the opposite‑party addressed to the petitioner dated 4th of June 1962 ; I would now like to quote the relevant paragraph of the letter dated 5th of June 1962, addressed to the Chairman Industrial Court by the opposite‑party, a photostat copy of which has been placed on record.

"Since Mr. Chowdhury is the Secretary of the Octavius Steel Employees' Association and as the Union's Charter of Demands has been accepted for conciliation on the 7th June 1962, as per letter No. 1070 DEC dated 31‑5‑62 from the Deputy Director of Labour, Chittagong, we hereby apply for your permission to terminate Mr. Chowdhury's services, as recommended by Investigating Officer. In the meantime we have suspended the services of Mr. B. A. Chowdhury, on the understanding that this is the correct procedure, but would request you to advise us promptly if this is not in order."

I find no endorsement on this letter of the opposite‑party addressed to the Chairman, Industrial Court either by him or by his office although this is a photostat copy of the original. As it appears from the records, the statement of the petitioner in paragraph IC of his petition, that this case of the opposite‑parts‑seeking permission was registered with the Industrial Court on 23rd of July 1962, goes uncontroverted. This letter is said to have been received in the office of the Industrial Court on the 7th of June 1962. It is found that no application for permission to terminate the services of the petitioner was pending before the Industrial Court on the 4th of June 1962, the day on Which the petitioner was put under suspension with immediate effect. It is, therefor; clear that the finding of the Industrial Court and the reasonings given therefor by way of interpretation of the 4 order "with immediate effect" are incorrect. The Industrial Dispute Court has said that "with immediate effect" means with effect from the 6th. I confess that it is difficult for me to understand the inter pretation given by the Industrial Court to the meaning of the words "with immediate effect". Such an interpretation as has been given by the Industrial Court to the language of the letter Exh. 3 could not be given without doing violence to the English language. There is no evidence on record also to show that the petitioner was paid his salary upto the 5th June, except the evidence that later on the opposite‑party and/or the company sent by money‑order the salary of the petitioner for the 4th and 5th of June 1962. It is submitted by the learned Advocate for the petitioner did not accept the salary for those two dates which was sent to him by money‑order on the 20th of July 1962, which is long after the filing of his complaint under section 28 of the Ordinance for action against the opposite‑party. The petitioner challenges also the finding of the Industrial Court with regard to the payment of salary to him for the 4th and 5th of June 1962, by the opposite‑party to avoid punishment for violation of the provisions of subsection (2) of section 30 of the Ordinance. His case is that this salary was sent to him on the 20th of July 1962, by money‑order which he did not accept. Whatever it is, I shall not enter into the merits of the case in view of the order that I propose to make in this case.

25. In conclusion, therefore, in the view of the law that I take upon the interpretation of subsection (3) of section 11 of the Ordinance and other relevant sections of the Ordinance, and also the submissions of the learned Advocates for the parties, I am of opinion that the Industrial Court has committed illegality in not following the procedure laid down in the Code of Criminal Procedure, applicable to a summons case, in dealing with complaint of the petitioner under section 28 of the Ordinance against the opposite‑party. The failure to observe the legal procedure has vitiated its order amounting to an illegality and I, therefore, set aside (the decision) the order of the Industrial Court in Industrial Dispute Case No. 72 of 1962 (to designate this com plaint case as an industrial dispute case, in my view, is also not correct) dated 12th of March 1963, and remand the case back to the Industrial Court for its disposal in accordance with law, that is, in accordance with the provisions of the Code of Criminal Procedure and in the light of the observations made above.

The Rule is accordingly made absolute and the order reject ing the application of the petitioner by the Industrial Court is set aside.

S. Q.

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