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Writ Petition No. 677 of 1975, decided on 1st September 1975.

Industrial Relations Ordinance (XXIII of 1969)---

-- Ss. 53 & 15(1)(i) read with National Industrial Relations Commis sion (Procedure and Functions) Regulation, 1973, Regulations 23 & 28-Invoking penal law for , punishment of an offender-Element of mens rea in act complained of must be shown-Chairman, National Industrial Relations Commission may have powers to take suo motu cognizance of industrial offences but once he has acted upon a com plaint he has to follow procedure laid down in National Industrial Relations Commission (Procedure and Functions) Regulation, 1973 Complaint, characteristic of-Complainant should set out ingredient of offence and pray for punishment of offender-Object of a person in filing application not that particular offence should be punished but rather to mention particular facts with a view to seek some relief Chairman, in such circumstances, issuing process to a person for show ing why he should not be punished under S. 15(1)(i) read with S. 53 of Industrial Relations Ordinance, 1969-Action, held, without lawful authority and of no legal effect-Criminal Procedure Code (V of 1898), S. 4 (1)(h).-[Complaint].

The Chairman, National Industrial Relations Commission may have powers to take suo motu cognizance of industrial offences but once he has taken upon himself to act upon a complaint filed before him, be has to follow the procedure laid down in the National Industrial Relation: Commissions (Procedure and Functions) Regulations, 1973.

The necessary characteristic of a complaint is that the complainant should ask the authority concerned to punish the delinquent. In the application filed by the President of the Union it had been indicated that there was no intention to enter into litigation with the management and the Chairman had been approached on the assumption that he may have some powers to order the payment of the salaries to the labourers. It was also indicated that the Provincial Government was holding out promises to the labourers that they will run the mill themselves but this promise had not been fulfilled. The emphasis of the application, therefore, was on the payment of the salaries to the labourers and not for awarding any punishment to the management for any offence that they might have committed.

"The law is now established that the complainant should set out the ingredients of the offence and move the machinery of law for the punishment of the offender. The alleged complaint in this case, on the other hand, disavowed any intention on the part of the President of the Union to have the petitioners punished under the law, if there was any. On the other hand, it appears that the complainant was not very sure whether the Chairman had any powers for redressing his grievance and his petition was an attempt to invoke the powers of the Chairman, if he had any, for ordering payment of salaries.

It is clear from the record that the Chairman had treated Annexure 'A' as a complaint and the order passed on 25th of February 1975, clearly shows that the Chairman was proceeding against the petitioners on the basis of the complaint filed by the President of the Union who never appeared before the Chairman and did not make any statement before him.

The order dated 25th of February 1975, passed by the Chairman issuing process to the petitioners for showing cause as to why they should not be punished under section 15(1)(1) read with section 53 of the Industrial Relations Ordinance is therefore held to have been passed without lawful authority and is declared to be of no legal effect. The proceedings against the petitioners cannot proceed.

South British Insurance Employees' Union v. The Sind Labour Court No. 4 and others 1975 S C M R 49 ; Jagobundhoo Karmakar v. Emperor I L R 30 Cal. 415 ; Phulel v. Emperor I L R 35 All. 102 ; Bharat Kishore Lal Singh Deo v. Judhistir Modak A I R 1929 Pat. 473 and Muhammad Husain Munir and others v. Sikandar and others P L D 1974 S C 139 ref.

M. B. Zaman for Petitioner.

Zia Mahmood Mirza, Standing Counsel of the Central Government for Respondent No. 1.

Rashid Masud Gangohi for Respondent No. 2.

Dates of hearing : 4th, 5th and 18th June 1975.

The petitioners, Mian Muhammad Khalid Saigol and Qureshi Muhammad Hafeez are respectively the Chairman and Resident Director of Baluchistan Textile Mills Ltd., which has its Head Office on 15-B, Davis Road, Lahore. The mill stopped functioning sometime in the middle of October, 1974, and a loan was arranged through the intervention of the Government of Baluchistan on the hypothecation of the property of the mill for payment of wages to the labourers for the months of October and November, 1974.

2. An application (Copy Annexure A') vas moved on 21st of January, 1975, before the Chairman of the National Industrial Relations Commis sion (hereinafter called the Chairman) by the President of the Baluchistan Textile Mills Union stating that the labourers had not been paid for two months and the mill had stopped functioning. It was indicated in the application that the Government was holding out promises that they will themselves run the mill but the mill had not functioned and no emoluments were paid to the labourers. It was further stated that because of lack of funds the Union did not want to enter into litigation with the management and since their problem required immediate solution, they wanted to know whether the Chairman could afford them any relief in this connection.

3. Respondent No. 1 sent for the comments of the Director, Labour Welfare, Baluchistan, and after recording his statement on 25th of February, 1975, came to the conclusion that prima facie the closing of the mill without obtaining the prior permission of the Labour Court appeared to be in contravention of section 15(1)(1) of the Industrial Relations Ordinance of 1969. Notices were ordered to be issued telegraphically and through the Zonal Director, Labour Welfare, Lahore, to the petitioners to appear before the Chair. man on 1st of March, 1975, at Chamba House, Lahore, to rebut the allegations.

4. A telegram (Copy Annexure C') jointly issued to the two petitioners, the original whereof was also placed on the record later on, was sent to the petitioners with their address as "Behind Regal Cinema, Lahore." It is not disputed that at the time this telegram was issued the office of the Company was at 15-B, Davis Road, Lahore, and not behind the Regal Cinema, Lahore.

5. Qureshi Muhammad Hafeez, petitioner No. 2, appeared before the Commission on 1st of March, 1975, and stated that Mr. Khalid Saigol was at Islamabad and could not reach Lahore to appear before the Chairman. The Chairman passed an order observing that the telegram was issued on 25th of February, 1975, and there was no earthly reason as to why Khalid Saigol could not reach Lahore on the date of hearing. He also observed that he had directed the Zonal Director of the Labour Welfare to inform the parties. Qureshi Muhammad Hafeez had been apprised of the order of the Chairman by the Zonal Director. The Chairman considered that the absence of Khalid Saigol was contumacious. He issued non-bailable warrants of arrest against him. He also called upon him to show cause as to why pro ceedings under section 22-C of the Industrial Relations Ordinance, 1969, be not issued against him for having disobeyed the orders of the Chairman. The case was fixed for 14th of March, 1975, at Chamba House, Lahore.

6. It appears that Khalid Saigol got an order of bail from the High Court and appeared before the Chairman on 14th of March, 1975. On that date, the petitioners presented a written statement (Annexure'E') submit ting that there was no closure of the mill within the meanings of Standing Order 11-A of the West Pakistan (Standing Orders) Ordinance, 1968, added by the West Pakistan Industrial 'and Commercial Employment (Standing Orders) (Amendment) Ordinance, 1972, and that the mill had stopped func tioning because of the financial crisis which the management was facing and shortage of electricity which was never fully restored. It was also indicated that the management of the mill was in communication with the Provincial Government as well as Mr. Feroze Qaiser, Special Assistant (Economic Affairs) to the Prime Minister and had pointed out their difficulties to the Central and Provincial Governments. It was also stated in Para. 5 of the reply that the Chairman of the mill had been visiting Quetta and meeting the officers of the Provincial Government for the solution of the problems which the management was facing. It was inter alia asserted that the application of the President of the Union was not a complaint in the legal sense of the word and even the statement of the complainant had also not been recorded.

7. The Chairman, however, proceeded to frame the charge against the petitioners wherein it was stated that the mill had been closed down in contravention of clause 11-A of the West Pakistan (Standing Orders) Ordi nance, 1968. and the petitioners had, therefore, committed an offence which fell within the purview of section 15(1)(1) of the Industrial Relations Ordinance, 1969, and was punishable under section 53 of the said Ordinance.

8. The present writ petition was then filed with a prayer to quash the order dated 1st of March, 1975, whereby Khalid Saigol was issued a notice to show cause why he should not be punished under section 22-C and the order dated 14th of March, 1975, whereby a charge was framed against the petitioners under section 15(1)(1) of the Ordinance.

9. It appears from the documents placed on the record that the manage ment of the mill was faced with difficulties in matters of finance and supply of electricity. Reference may be made in this connection to Annexure K' dated 4th of November, 1974, which is a letter addressed to Mr. Feroze Qaiser by petitioner No. 1 in which the difficulties of the management of the Baluchistan Textile Mills including the lack of supply of power have been catalogued in detail for the consideration of the Central Government. Annexure 'L' is a letter dated 20th of May, 1974, by Mr. Ikram Qureshi, Spinning Master of the Baluchistan Textile Mills addressed to the Sub-- Divisional Officer, WAPDA, pointing out to him the frequent break-down of electricity in the months of April and May, 1974 for days together extending from 2 to 151 hours daily. Letter dated 20th of June, 1974 (Annexure 'M') from the office of the Sub-Divisional Officer, Electricity, Quetta, lends support to the grievance of the Management of the mill that there were frequent breaks-down of electricity and it was further intimated that from 15th of June, 1974, the supply will be stopped from 8 hours to 16 hours a day. According to Annexure 'N', which is a letter addressed by the Management of the mill to Mr. A.H. Piracha, Assistant Vice-President of the United Bank that there had been breaks-down of electricity from January, 1974, till July, 1974, for hundreds of hours. Again, the letter dated 28th of June, 1974, addressed by the Management of the mill to the Chief Minister of the Government of Baluchistan catalogued their difficulties including the lack of supply of power.

10. It was urged by the learned counsel for the petitioners that there was no factual or legal foundation for both the impugned orders. It was submitted that the Chairman had wrongly treated the application of respondent No. 2 as a complaint and the jurisdictional pre-requisites as laid down in clause (h) of subsection (1) of section 4 of the Criminal Procedure Code and Regulation 23 of the National Industrial Relations Commissions (Procedure and Functions) Regulations of 1973, framed under section 22-F of the Industrial Relations Ordinance, 1969, were absent. The learned counsel pointed out that at no stage did the alleged complainant appear before the Chairman and the Chairman, therefore, acted in contravention of Regulation 28 of National Industrial Relations Commissions (Procedure and Functions) Regulations, 1973, which says that if the complainant does not appear the Chairman may discharge the accused or proceed with the case. The Chairman in this case did proceed with the case notwithstanding the absence of the complainant but it does not appear from the record that the provisions of Regulation 28, referred to above, were ever present to his mind or he applied his mind to the question whether or not in these circumstances the accused were entitled to a discharge. The learned counsel pointed out that this Regulation gave a valuable right to the accused and that the omission on the part of the Chairman to take notice of the absence of the complainant was fatal to the proceedings.

11. Mr. M. B. Zaman also tried to create a distinction between stoppage of work and closure of work in view of the language used in Standing Orders l 1 and 1 t-A of the West Pakistan (Standing Orders) Ordinance, 1968. Para. (1) of Standing Order I1 reads as under ;-

"The employer may, at any time, in the event of fire, catastrophe, break-down of machinery or stoppage of power supply, epidemics, civil commotion or other cause beyond his control, stop any section or sections of the establishment, wholly or partially for any period or periods without notice."

Para. (3) says that for the first fourteen days of the stoppage of the work the labourers have to be paid half of their salaries and if the period is to extend beyond the above-mentioned fourteen days, their services may be terminated after giving them due notice or pay in lieu thereof.

Standing Order 11-A was introduced on 15th of November, 1972, by West Pakistan Industrial and Commercial Employment (Standing Orders) (Amendment) Ordinance, 1972. It says that notwithstanding anything con tained in Standing Order 11, no employer shall close down the whole of the establishment without prior permission of the Labour Court in this behalf except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion.

12. Mr. M. B. Zaman submitted on the basis of the above provisions of law that the stoppage of work by the Management and their failure to pay the salaries for reasons, among others, of financial stringency and lack of electricity did not amount to an industrial offence within the meaning of clause (1) of subsection (1) of section 15 of the Industrial Relations Ordinance of 1969. He submitted that there was another piece of legislation, namely, Payment of Wages Act of 1936, which deals with non-payment of emoluments to the labourers. It was also argued that before the provisions of penal law are invoked for the punishment of an offender it should be shown that there was an element of mens rea in the act complained of and the stoppage of work was a manoeuvre. The learned counsel further submitted that there was no closure in the legal sense and in any case application to the Labour Court for closure need not be the first step as the Chairman had assumed. Reliance in this connection was placed on South British Insurance Employees' Union v. The Sind Labour Court No. 4 and others 1975 S C M R 49 . It was stated at the bar that during the pendency of the impugned proceedings a further loan had been raised to pay off the labourers till 31st of March, 1975, and the competent Labour Court had granted permission for ultimate close down of the business.

13. The submission of the learned counsel that the application Annexure 'A' was not a complaint, is backed by authority. The necessary characteristic of a complaint is that the complainant should ask the authority concerned to punish the delinquent. In the application filed by respondent No. 2 it had been indicated that there was no intention to enter into litigation with the Management and the Chairman had been approached on the assumption that he may have some powers to order the payment of the salaries to the labourers. It was also indicated that the Provincial Government was holding out promises to the labourers that they will run the mill themselves but this promise had not been fulfilled. The emphasis of the application, therefore, was on the payment of the salaries to the labourers and not for awarding any punishment to the management for any offence that they might have committed.

14. The law is now established that the complainant should set out the ingredients of the offence and move the machinery of law for the punish ment of the offender. The alleged complaint in this case, on the other hand, disavowed any intention on the part of respondent No. 2 to have the petitioners punished under the law, if there was any. On the other hand, it appears that the complainant was not very sure whether the Chairman had any powers for redressing his grievance and his petition was an attempt to invoke the powers of the Chairman, if he had any, for ordering payment of salaries. In Jagobundhoo Karmukar v. Emperor L R 30 Cal. 41 , a petition was presented to the Collector against a subordinate officer of the Court of Wards to redress the grievance of the petitioner but the Collector treating the petition as a complaint dismissed the same and ordered the prosecution of the complainant under section 211 of the Penal Code. It was held that the Collector was not justified in arbitrarily treating the petition as a criminal complaint. To the same effect is the case of Phulel v. amperor I L R 35 All. 102. In this latter case, the petitioner appeared before the District Magistrate and complained against the highbandedness of a certain police officer stating that he did not wish to make a formal complaint but wished the District Magistrate to make an enquiry into the matter to prevent the police officer from behaving tyrannically towards him. The District Magistrate recorded the statement of the petitioner on oath and later on found the charge as groundless and ordered the prosecution of the petitioner under sections 182 and 193 of the Penal Code. The High Court held that the District Magistrate had not been moved as a Magistrate but as a District Head of Police and since the petitioner had expressly declined to institute criminal proceedings it was perhaps unlawful for the District Magistrate to treat the petition as a complaint. The statement of law on this point was expounded by the Full Bench of the Patna High Court in Bharat Kishore Lal Singh Deo v. Judhistir Modak A I R 1929 Pat. 473 in the following words :-

"The mere fact that a document in writing contains an allegation that a specific offence has been committed does not necessarily constitute that document a complaint. The allegation of the specific offence must be with a view to action being taken under the Code, i.e, for the prosecution of the offender for having committed the specific offence."

Their Lordships finally concluded;

"Where, therefore, a petition clearly shows that the object of the petition is not that the particular offence should be punished, but rather the mention of the particular offence is put in with a view to illustrate the kind of conduct which the accused person is supposed to be following and against which the petitioner is seeking protection, such a petition is not a complaint."

15. Mr. Zia Mahmood Mirza in the first instance submitted that there being an alternative remedy of appeal under section 22-D, the present writ petition could not proceed. He further submitted that notwithstanding the failure of the Chairman to observe the procedure contained in Regulations 23 and 28, referred to above, he had under proviso (a) of subsection (9) of section 22-A of the Industrial Relations Ordinance, 1969, jurisdiction to move suo motu with regard to any matter relating to its functions. The learned counsel submitted that where jurisdiction was discoverable from any provision of law it was not competent for the High Court to strike down an act of a competent Tribunal merely because of violation of procedure. He in this connection relied on Muhammad Husain Munir and others v. Sikandar and others P L D 1974 S C 139. It was observed by their Lordships in the precedent case that the words "without lawful authority and of no legal effect" were expres sions of art and referred to jurisdictional defects as distinguished from a mere erroneous decision. It was further observed that where a Court or a Tribunal has the jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. Mr. Zia Mahmood Mirza also stressed the point that the facts had yet to be gone into by the Chairman and that the writ petition was, therefore, premature.

16. Section 22-D deals with inter-commission appeals against awards, decisions or sentences. The impugned orders in this writ petition are neither awards nor decisions nor sentences. The impugned orders in this case were passed by the Chairman himself and it is doubtful if section 22-D is applicable to the facts of this case.

The first question that arises for determination is whether under the circumstances narrated above, any industrial offence can be said to have been committed. Reference has been made in the earlier part of this judgment to the language of Regulation 11 which deals with stoppage of work for an indefinite period and to the language or Regulation 11-A, which further purports to restrict the scope of the closure of a business by the management and makes it imcumbent for the management to take prior permission of the Labour Court concerned for closing down the business, except in the event of fire, catastrophe, stoppage of power supply, epidemics or civil commotion. It would, therefore, appear that the conditions laid down in Regulation 11-A with regard to the prior approval of a Labour Court for the closure of the business will not apply to a case where the work has been stopped due to lack of power supply. According to Regulation 11, which is headed "Stoppage of work", the work can be stopped for any other cause beyond the control of the management.

17. We have seen above that the management had entered into communi cation with various authorities with regard to their financial difficulties and the lack of supply of electricity as far back as April, 1974. The stoppage of work was, therefore, occasioned because of the reasons detailed in Standing Order No. 11. The management, of course, had the option to close the mill after fourteen days by paying the labourers but in view of the fact that there were some parleys going on between the management and the Pro vincial Government, they did not choose to do so and in the hope that some relief will be afforded to them, they continued to keep the labourers on their rolls, with the result that they had to pay to the labourers till 31st of March, 1975. There was, therefore, no factual foundation for saying that the petitioners bad committed an industrial offence. If this be the case the proceedings before the Chairman cannot be permitted to go on because they would be then suffering from lack of initial jurisdiction.

18. I need not examine the arguments of Mr. Zia Mahmood Mirza regarding the suo motu powers of the Chairman to take cognizance of the industrial offences because that would have been necessary if prima facie case of commission of industrial offence had been made out. It is, however, clear from the record that the Chairman bad treated Annexure 'A' as a com plaint and the order passed on 25th of February, 1975, clearly shows that the Chairman was proceeding against the petitioners on the basis of the complaint) filed by the President of the Baluchistan Textile Mills Workers' Union, who never appeared before the Chairman and did not make any statement before him. The Chairman may have powers to take suo motu cognizance of industrial offences but once he has taken upon himself to act upon a com plaint filed before him, he has to follow the procedure laid down in the Regulations. I find that there was no proper complaint before the Chairman. The alleged complainant I.e., respondent No. 2 did not appear before the Chairman. He did not appear in the High Court either at the earlier hearings but later on put in appearance through a counsel who said that he had not filed any complaint and had no intention to move the Chairman to proceed against the petitioners on the criminal side. It is, therefore, not a question of an omission or error in the procedure as Mr. Zia Mahmeod Mirza would have us believe. In cases where an order in the nature pf certiorari is to issue, the High Court will not permit the proceedings to go on if it finds that the particular Tribunal has acted without jurisdiction or in excess of jurisdiction.

19. The above discussion would show that the stoppage of work by the petitioners was not a closure in the legal sense of the word at the time when the Chairman took the cognizance of the alleged offence and it has not been shown that non-payment of salaries in the circumstances of the case amounted to an industrial offence. In any case, as held by the Supreme Court in South British Insurance Employees' Union v. The Sind Labour Court etc. P L D 1975 S C 139 . Standing Order 11-A does not spell out any sequence of various steps to be taken in closure of establishment. The order dated 25th of February, 1975, passed by respondent No. 1 issuing process to the petitioners for showing cause as to why they should not be punished under section 15(1)(i) read with section 53 of the Industrial Relations Ordinance is, hereby, held to have been passed without lawful authority and is declared to be of no legal effect. The proceedings against the petitioners cannot proceed.

20. Coming now to the notice issued to Khalid Saigol to show cause why he should not be punished under section 22-C of the Industrial Relations Ordinance, it is clear that the joint telegram was issued on the wrong address, and there is no indication that it was ever served on Khalid Saigol before 1st of March, 1975. Qureshi Muhammad Hafeez, respondent No. 2 said that he received the telegram at his office on Davis Road on the morning of 1st of March, 1975, and there is no rebuttal of this assertion. Even during the present proceedings it was not shown that the Labour Welfare Officer had ever intimated to Khalid Saigol that he was required to be present before the Chairman on 1st of March, 1975. The law has given ample powers to the Chairman to enforce the presence of a recalcitrant party but at the same time it has ensured that citizens are not unnecessarily harassed. Under Regulation 22 of the National Industrial Relations Commissions (Procedure and Functions) Regulations, 1973, the Chairman may issue a warrant for the appearance of a person after recording his reasons in writing if he has reasons to believe that the person concerned had absconded or will not obey the summons or if the summons is proved to have been duly served in time and no reasonable excuse is offered for such failure. The Chairman proceeded on a wrong factual assumption that since the telegram was issued on 25th of February, 1975, Khalid Saigol must have been apprised of the date of bearing. He further assumed that the Labour Welfare Officer must have also contacted Khalid Saigol and informed him of the date of hearing. Both the assumptions were factually incorrect. There is complete absence of evidence to the effect that Khalid Saigol ever came to know about the telegram or was ever informed by the Labour Welfare Officer of the date of hearing. The pre-condition laid down by law in such circumstances is that the summons should be proved to have been duly served in time and that there should be no reasonable excuse for the failure of the person concerned to appear. Since there is no evidence whatsoever that Khalid Saigol was served in this case for 1st of March, 1975, the notice issued to him to show cause as to why he should not be punished under section 22-C of the Ordinance is factually and legally untenable. The order is set aside as having been passed without lawful authority and is declared to be of no legal effect. The result is that the writ petition is allowed in its entirety. The parties are, however, left to bear their Owen cost.

Petition accepted.

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