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Criminal Revision No. 240 of 1962, decided on 20th April 1964.

Words "inferior Criminal Court situate within the local limits of its jurisdiction" in S. 435‑Court exercising criminal jurisdiction under special statute with regard to offences created by such statute-Cannot be regarded as Inferior Criminal Court simply because under special statute such Court is "deemed to be a Court of Magistrate of the First Class under the Code of Criminal Procedure 1898--" Industrial Disputes Ordinance (LVI of 1959), S. 11 (3).

Kumar Singh Chhajor and others v. King Emperor 73 1 A 199 rel.

Banwari Gope and others v. Emperor A I R 1943 Pat. 1.8 ref.

Amendment not provision‑Retrospective in effect.

Apply to pending matters but not to matters past and closed.

‑Amendment of Sub‑S. (3) of S. 11 ‑ Gives right of appeal to High Court‑Provision cannot be interpreted so as to attract revisional powers of High Court ‑ Criminal Procedure Code (V of 1898), Ss. 435 & 439.

Kh. Gul Muhammad Butt for Petitioner.

Ch. Muhammad Siddiq for Respondents.

Rafiq Ahmad Bangash for the State.

Date of hearing : 20th April 1964.

This revision petition is directed against an order of acquittal dated the 21st of November 1960 passed by the Industrial Court of West Pakistan at Lahore in a case under section 28 read with section 30 of the Industrial Disputes Ordinance (LVI of 1959). The complainant before the Industrial Court was the present petitioner Sakhi Muhammad, a worker of the Abbasi Textile Mills, Rahimyar Khan, who alleged that he had been dismissed from service on the 7th of May 1960, during the pendency of conciliation proceedings between the workers and the Management of the Textile Mills. It was alleged by Sakhi Muhammad that a notice of strike had been given on the 6th of May 1960 with the result that conciliation proceedings were to be deemed to have commenced on that date, i.e., one day before the order of his dismissal was passed. The Industrial Court came to the conclusion that there was no evidence on the record to show as to when the notice of strike was received by the Conciliation Officer, and there was thus no proof that Sakhi Muhammad was dismissed from service during the pendency of the proceedings before the Conciliation Officer. On this view of the matter, the accused persons, namely, the Directors and the General Manager of the Mills, were acquitted.

2. The main contention raised on behalf of the petitioner is that the finding of the Industrial Court that the notice of strike was not served on the 6th of May 1960 is in utter disregard of the material which had already been brought on the record during the course of the main proceedings before the Industrial Court.

3. On behalf of the respondents a preliminary objection has been raised regarding the maintainability of this revision petition on the ground that the Industrial Court is not an inferior Criminal Court and, therefore, the revisional powers of the High Court under sections 435 and 439 of the Code of Criminal Procedure are not attracted.

4. In order to appreciate the contention raised on behalf of the respondents it is necessary to refer to the relevant provisions of the Industrial Disputes Ordinance, 1959, as amended from time to time. Section 11 of the 1959 Ordinance is to the following effect :‑

"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 Code of Civil Procedure, 1908 (V of 1908), including 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 commissions for the examination of witnesses.

(3) The Court shall, for the purpose of trying an offence under sections 26 and 28 be deemed a Court of the Magistrate of the First Class under the Code of Criminal Procedure, 1898 (Act V of 1898).

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

5. Another provision which is relevant in the present context is subsection (4) of section 12 of the Ordinance, namely, "subject to the provisions of subsection (3), any decision or award of the Court shall be final and shall not be questioned in any manner by or before any judicial or other authority including the High Court and the Supreme Court.

6. Certain amendments were introduced by the amending Ordinance XVI of 1961 (promulgated on the 10th of May 1961) called the Industrial Disputes (Amendment) Ordinance, 1961. By section 4 of the amending Ordinance, subsection (3) of section 11 of the 1959 Ordinance was substituted as follows :‑‑

"The Court shall, for the purpose of trying an offence under sections 26 and 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 session under that Code."

7. Certain further amendments were introduced in 1963 by Ordinance LXXIX of 1962 (promulgated on the 29th of October 1962). A new subsection (5) was added to section 12 of 1959 Ordinance, for giving powers of appeal to the High Court in the case of awards given by the Industrial Court, but that provision does not appear to be directly relevant in the present context.

8. Now, it will be seen that powers of a Criminal Court are conferred on the Industrial Court by a special statute, namely the Ordinance, and only for dealing with offences specified in the Ordinance itself. For purposes of procedure, the 1959 Ordinance contemplated, in subsection (3) of section 11, that the Court shall be deemed a Court of the Magistrate of the First Class under the Code of Criminal Procedure, 1898. Subsection (4) of section 12 of the 1959 Ordinance made it clear that "any decision or award of an Industrial Court shall be final and shall not be questioned in any manner by or before any judicial or other authority including the High Court and the Supreme Court". The present order under revision was passed before the amending Ordinance of 1961 was promulgated and, therefore, apart from the effect of the amending Ordinance which I shall consider presently, it would appear that this order was intended to be final under the provisions just mentioned The revisional powers of the High Court under sections 435 and 439 of the Code of Criminal Procedure come into play in respect of proceedings before any "inferior. Criminal Court situate within the local limits of its jurisdiction". The question is whether a Court exercising criminal jurisdiction under a special statute with regard to offences created under that statute can be regarded as an inferior Criminal Court, simply for the reason that it is to be deemed to be a Court of a Magistrate of the First Class for purposes of procedure. This question was considered by a Full Bench of the Patna High Court in Banwari Gope and others v. Emperor (A I R 1943 Pat. 18) with reference to the Courts of Special Magistrates crated under the Special Criminal Courts Ordinance (II of 1942), and their Lordships observed as follows :‑

"The High Court cannot revise the order of conviction or sentence passed by the Special Magistrates concerned under sections 435 and 439, Criminal Procedure Code, because this power of revision can be exercised only as against orders passed by Magistrates exercising jurisdiction under the Code of Criminal Procedure. As the Special Magistrates derive their jurisdiction from the Ordinance, they cannot be properly described as inferior Criminal Court' and the High Court cannot revise their orders . . . . ."

9. Again, the same question came up for consideration before their Lordships of the Privy Council in Kumar Singh Chhajor and others v. King Emperor (73 I A 199). On page 205 of the Report, the following observations appear :‑‑

"In their Lordships' opinion, the suggestion that the High Court possessed inherent jurisdiction to interfere with the order of the Special Magistrate is quite untenable. At the date when the order of the High Court was made, the Special Magistrate had been held to have bad no jurisdiction. He was not a Court inferior to the High Court, and, indeed, was not a Court at all, his order was a mere nullity and no question of revising it could arise. And apart from this, section 26 of the former Ordinance took away all powers of revision by the High Court, and no Court can claim inherent jurisdiction to exercise powers expressly taken away by legisla tion. In their Lordships' view, if the High Court possessed any power of revision in the present case, such power must be found in the Ordinance of 1943."

10. It would be seen that the view taken by judicial' authorities is that the revisional powers of the High Court can be exercised only with regard to inferior Criminal Courts which are functioning under the Code of Criminal Procedure and not in respect of proceedings before Criminal Courts which may be created by special statutes, although acting in accordance with the procedure prescribed in that Code. On this view of the matter it appears to me that the Industrial Court, while acting as a Criminal Court in the matter of offences created by the 1959 Ordinance, cannot be said to be an inferior Criminal Court and for that reason its orders are not open to revision by the High Court, especially in view of the provision contained in the Ordinance itself conferring finality on the decisions of the Industrial Court.

11. This position is not altered by the amendment introduced in 1961. In the first place, as already observed, the impugned order was passed on the 21st of November 1960 whereas the amending Ordinance was promulgated on the 10th of May 1961. Any new provision made with regard to the order of the Industrial Court by the amending Ordinance of 1961 cannot, without necessary legislative intendment, be said to have retrospective effect so as to govern orders passed before the amend ment was introduced. There is no doubt that amendments of a procedural nature have been consistently held to be retrospective in character, but that only means that the altered procedure will apply to pending matters, and not that matters which are closed and completed shall be re‑opened so as to be governed by the new procedure. If the proceedings initiated by the present petitioner bad been pending before the Industrial Court when the amending Ordinance of 1961 was introduced, it could be said that the right of appeal granted by the amended subsection (3) of section 11 would be available to the accused persons if they had been convicted by the Industrial Court. But in the present case, the proceedings had been concluded before the Industrial Court long before the amending Ordinance of 1961 was introduced and, therefore, the amendments cannot be said to have any application to the present case.

12. Even if we assume, for the sake of argument, that the amendments introduced in 1961 operate retrospectively so as to apply to transactions past and closed, the amendment relied upon by Mr. Gul Muhammad Butt, the learned counsel for the petitioner, is of no avail. The amended subsection (3) of section 11 of the Ordinance only provides that of the purpose of appeal from a sentence passed by it, the Industrial Court shall be deemed to be a Court of Session under the Code of Criminal Procedure Viewed in the context of finality which has otherwise been conferred by the statute on the decisions of the Industrial Court, it is clear that the amendment only confers a right of appeal on a person convicted and on whom a sentence is imposed by the Industrial Court, and in order to determine the form for such appeal it is laid down that the Industrial Court shall be deemed to be a Court of Session ; or in other words, an appeal shall lie to the High Court. But this amendment cannot be widely interpreted so as to mean that the Industrial Court has either been specifically declared to be or can by necessary implication be deemed, an inferior Criminal Court so as to attract the revisional powers of the High Court. This view is in accord with the view taken by their Lordships of the Judicial Committee of the Privy Council in the case already cited, namely, that whatever powers are enjoyed by the High Court must be derived from the statute concerned, once it is held that the Criminal Court in question is nut an inferior Criminal Court within the meaning of sections 435 and 439, Cr. P. C. It would follow, therefore, that in the case of acquittal or discharge the com plainant would have no right of revision even under the amended subsection (3) of section 11 of the Ordinance.

13. For the reasons given above, the preliminary objection raised on behalf of the respondents prevails and the present revision petition is dismissed as being incompetent.

K.B.A.

Petition dismissed.

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