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Constitutional Petitions Nos. 1468, 1537, 1583 of 1974, and 237, 361, 443, 1253, 1271, 1276, 1357 and 1358 of 1975, decided on 1st November 1976.
‑‑ Ss. 13 & 36‑F‑Cognizance of case‑Order in favour of worker not implemented within specified period‑Such workman, held, not estopped from prosecuting his employer.
Muhammad Akram and another v. Second Sind Labour Court, Karachi and another 1976 P L C 719 not applicable.
--S.35(5)(c) read with Criminal Procedure Code (V of 1898), Ss. 12, 39 & 530‑Jurisdiction of Labour Court‑Name of Presiding Officer need not be disclosed in notification for purposes of special empowerment.‑[Jurisdiction].
Mahomad Kasim and another v. Emperor A I R 1915 Mad. 1159 ; The State v. Judhabir Chetri A I R 1953 Assam 35 and State v. Muhammad Yusuf P L D 1974 S C 46 ref.
--Liability for offence‑Company can, in suitable cases, be indicted for certain offences.
Tesco Supermarket Ltd.'s case 1972 Law Rep. A C 153 and State of Maharashtra v. Messrs Syndicate Transport Co. (Pvt.) Lid. and others A I R 1964 Bom. 195 ref.
--S. 63‑Offences by Corporations‑Word "guilty" in S. 63‑ Meaning‑Contention that trial could proceed "against" Managing Director only after finding company guilty of an offence‑Held, without substance.‑[Words and phrases].
‑ ‑ S. 35 read with Criminal Procedure Code (V of 1898), Ss. 200 & 253(1)‑Presiding Officer examining complainant before issuance of process. dispensing with attendance of some petitioners and considering application for dismissing application for discharge of accused‑Error in approach‑Not a question of absence of jurisdiction but an error in approach of law, hence, not mala fide.
Muhammad Ibrahim Haji Moula Bakhsh v. T. C. H. Naughton and others .A I R 1941 Sind 148 ; W. J. Watson v. P. H. Metcalfe 25 Cr. L J 696 and The Federation of Pakistan v. Saeed Ahmad Khan and others P L D 1974 S C 151 ref.
Art. 199‑Writ‑Appeal against impugned order coram non Judice- Examination as to whether Review was competent amounting to exercise in futility‑No occasion, held, arises for quashment of proceedings under writ jurisdiction.‑[Writ].
Zia Qureshi for Petitioner (in C. Ps. Nos. 1468, 1537 of 1974 and 237 of 1975).
Shahenshah Hussain for Respondents Nos. 1 and 2 (in C. P. No. 237 of ;11975).
Mohsin Tayebally for Petitioners (in C. P. No. 1583 of 1974).
Khalil‑ur‑Rehman for Respondents Nos. 2, 3 and 4 (in C. P. No. 1583 of 1974) and for Respondent No. 2 (in C. P. No. 361 of 1975).
Mir Muhammad Shaikh for Petitioners (in C. P. No. 361 of 1975). Talmiz Burney for Petitioner (in C. P. No. 443 of 1975).
S. Sarfaraz Ahmad for Respondents Nos. 2 and 3 (in C. P. No. 443 of 1975).
Khalid Jamil for Petitioners (in C. Ps. Nos. 1253 and 1272 of 1975 and C. Ps. Nos. 1357 and 1358 of 1975).
Hameed M. Siddiqi for Respondents Nos. 2 to 19 (in C. P. No. 1253 of 1975).
Shamsuz Zaman Raja for Respondent No. 2 (in C. P. No. 1272 of 1975).
Abdul Majeed Khan for Petitioners (in C. P. No. 1276 of 1975).
Ali Amjad for Respondent No. I (in C. P. No. 1276 of 1975).
Dates of hearing : 23rd and 24th February 1976.
The circumstances in which these petitions have been filed are as follows:‑
2. Complaints had been filed against the petitioners before the labour Courts for offences under sections 53, 54 and 55 of the Industrial Relations Ordinance, 1969 (hereinafter called the said Ordinance). In some cases, charges had been framed against the petitioners therein ; in some others, some evidence had been led, and thereafter applications had been made for the discharge of the petitioners under section 253 (2) of the Code of Criminal Procedure which came to be dismissed, while, in the rest, only process had been issued, when these petitions came to be filed here. Some of the petitions had been heard earlier, but it was given out that there were some others, in which common points of law were involved, and these came to be heard later on. All of these will be disposed of by this common judgment.
3. The first contention raised is that these complaints filed against the petitioners are not maintainable, because the same had been filed by the so‑called aggrieved workers, and not by the Registrar. The argument was propped on the basis of section 13, which defines the powers and the func tions of the Registrar, and which reads as under :‑
"13. Powers and Functions of Registrar.‑The following shall be the powers .and functions of the Registrar‑
(a) the registration of Trade Unions under this Ordinance and the main tenance of a register for this purpose ;
(b) to lodge (or authorise any person to lodge), complaints with the Labour Courts for action against Trade Unions for any alleged offence or any unfair labour practice or violation of any provisions of this Ordinance;
(c) the determination of the question as to which one of the Trade Unions fn an establishment or an industry is entitled to be certified as the Collective Bargaining Agent in relation to that establishment or indus try ; and
(d) such other powers and functions as may be prescribed."
Support was also sought from the case of Muhammad Akram and another v. Second Sind Labour Court, Karachi and another (1976 P L C 719). This section as can well be seen enumerates the various powers, which have been given to the Regis trar, one of them being to lodge, or, authorise any person to prefer complaints with the Labour Courts. With all respects to tire view, which found favour with my learned brother, it appears that his Lordship's attention was not drawn to section 36‑P of the said Ordinance, which reads as under :‑
"36‑F. Cognizance of cases.‑No person shall be prosecuted under section 36‑E except on a complaint in writing‑
(a) by the workman if the order in his favour is not implemented within tie period specified in section 36‑E; or
(b).by the Junior Labour Court, if a direction given by it under sec tion 36‑B is not complied with ; or
(c) by the Labour Court, if a decision or a direction in appeal under section 36‑B is not complied with."
In the face of this express provision, it cannot be said that a workman is estopped from prosecuting his employer, if an order in his favour was no .f implemented, and that too within the specified period. The power has been given to the Registrar to move into the matter, if he considered it expedient in the interest of justice. But it is not to be expected that he would be seized of all the matters, or, that he would be willing to pursue the same, as, in his view, the affair might be only technical in nature, or, not meriting intervention. I am, therefore, of the opinion that this contention is devoid of any force, and stands repelled.
4. The next contention was that the proceedings before the Labour Court were vitiated, because there was no notification issued by the Govern ment, "specially" empowering these Presiding Officers by name, or, in virtue of their office, to try these offences, as required under section 39 of the Criminal Procedure Code. According to sub‑clause (c) of section 35 (5), the Presiding Officer of a Labour Court, the qualification for which appointment is, that he is qualified to be a Judge, or, an Additional Judge of the High Court, or, is a District Judge, or, an Additional District Judge, is called upon to try offences under the Ordinance, and, by, the words added by Ordinance XIX of 19'10, he bas been empowered to try such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf. Looking to the phraseology of the clause, the special empowerment has been made mandatory only in regard to such other offences under any other law as the Provincial Government may, in the notification, specify. The Presiding Officers will, therefore, so far s the offences under the Ordinance are concerned, be functioning under the Ordi nance; and exercising powers conferred under the said Ordinance. Even, In these cases, where these Courts proceed with other offences under any other law, a notification by name would not be necessary. True that, at one stage, the view was, that it has to be so, as is to be found in Mahomad Kasim and another v. Emperor (A I R 1915 Mad. 1159) where it was held that, when a class of officials was invested with powers to try certain offences, it would appear that they were "generally empowered," and the word "generally" was is contrast to the word "specially'", which is used in speaking of individuals, and therefore the general authorization would be ultra vires of the Pict in question. However, in the case of The State v. Judhabir Chetri (A I R 1953 Assam 35) it was observed that the First Class Magistrates did not constitute a class of officials, but were persons holding an office. The use of the words "a Magistrate," or, "a Court of the First Class Magistrate," therefore connoted an office, and not an official, sad therefor it was not necessary that, for the purpose of special empowerment within the meaning of section 39 of the Criminal Procedure Code, the names of the persons must be disclosed, even though they hold an office. The same is the approach of their Lordships of the Supreme Court in State v. Muhammad Yousuf (PLD 1974 S C 46). Since the cases have proceeded before a Court, none other than the one constituted under the Ordinance, there is no question of the proceed ings being void under section 530 of the Criminal Procedure Code.
5. In one of the petitions, one of the grounds raised was, that the case did not fall within the territorial jurisdiction of the learned Presiding Officer‑
However, no attempt was made to show as to what was the territorial jurisdic tion of that particular Court, and which other Court had the jurisdiction to proceed with the same. Even under section 12 of the Criminal Procedure Code, the jurisdiction of a Magistrate extends throughout the district. The mere definition of the areas of jurisdiction, or, the appointment of a Magis trate to a certain sub‑division would not exclude his jurisdiction in the rest of the district in the absence of some provision expressly, or, by necessary implication, excluding such jurisdiction. As would have been seen earlier, the minimum qualification of an incumbent of this office is, that he is of the rank of an Additional District and Sessions Judge. There is, therefore, no force in this contention.
6. In one of the petitions, it was argued that the learned Presiding Officer had no jurisdiction to proceed with the case, because, in the Gazette notification of his appointment to the post, he was described as the Chairman of the Labour Court. It has not been said for definite that this objection had been brought to the notice of the learned Presiding Officer. There is nobody appearing on behalf of the Labour Courts here, and therefore there is no counter‑affidavit filed, specially meeting this point. However, it is an admitted position that the incumbents of these offices formerly were styled as the Chairmen of the Labour Courts. Assuming that such a notification was issued, and there was no correction made thereafter, it will only mean that somebody, responsible for the issuance of the Gazette notification, was caught napping.
7. It was next contended that the complaints should have been first filed against the Companies and Corporations‑and some of the petitioners are such artificial entries and, after the Companies, or, Corporations had been found guilty, then and then alone the complaints could be filed against the Managing Director, Directors and other Office‑holders thereof. The wider question can await examination. The first question to see would be the liability of a corporate body for indictment on a criminal charge. In the cage of Tesco ,Supermarket Ltd's. case (1972 L R (A C) 153), the nature of the persona lity, which, by a fiction of law, is attributed to a Corporation, came under consideration which was a case under the Trade Description Act, 1968. Section 20 thereof provided that where an offence under the Act, which had been committed by a body corporate, was proved to have been committed with the consent and connivance, or, to be attribut able to any neglect on the part of any director. manager secretary or other similar officer of the body corporate, or any person, who was purporting to act in such capacity, he as well as the body corporate shall be guilty of that offence. Lord Reid in the course of his Report, as to be found on page 170, observed as follows :‑
"A living person has a mind which can have knowledge or intention or be negligent, and he has hands to carry out his intentions. A corpora tion has none of these : it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodi ment of the company or, one could say, he hears and speaks through the person of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability."
8. There is also the case of State of Maharashtra v. Messrs Syndicate Transport Co. (Pvt.) Ltd. and others (A I R 1964 Bom. 195) This was a case, in which the Managing Director and a shareholder were proceeded against on a complaint under, sections 420, 403 and 406 of the Penal Code. The trial Magistrate had passed a separate order, discharing the Directors, and framed charge under section 420, I. P. C. against the Company, its Managing Director, one Director and a shareholder. The Company went up in Revision to the Sessions Court for the quashment of the proceedings, and the Additional Sessions Judge, Nagpur, reported the case to the High Court with a recommendation for the quash ment of the charge framed by the trial Magistrate. In this case, all the material cases from Indian jurisdiction came to be considered, and it was found therein that there were several offences, which could be committed only by an individual human being, for instance, murder; treason, bigamy, rape perjury, etc. Similarly, a Company, or, Corporation could not be punishable with imprisonment, or, corporal punishment. It went on to say, "Barring these exceptions, a corporate body ought to be indictable for criminal acts or omissions of its directors, or authorised agents or servants, whether they involvements red or not, provided they have acted or have purported to act under authority of the corporate body or in pursuance of the aims or objects of the corpora‑a body. The question whether a corporate body should or should not be liable for criminal action resulting from the acts of some indivi dual must depend on the nature of the offence disclosed by the allegations in the complaints or In the charge‑sheet, the relative position of the officer or agent via‑a‑via the corporate body and the other relevant facts and circum stances which could show that the corporate body, as such meant or intended to commit that act. Each case will have necessarily to depend on its own facts which will have to be considered by the Magistrate or Judge before deciding whether to proceed against a corporate body or not." I am is respectful agreement with the views expressed therein that, in suitable cases. C a company can be indicted for certain offences. However, Mr. Mohsiri Tayebally, who had raised this argument, and was joined by the other counsel, appearing for the various petitioners, failed to examine the case from another angle. Suppose, there is a case in which ten offenders are involved, but the complainant chooses to proceed only against five. The complaint would not be thrown out by the Magistrate only on the ground that some other persons, who could be proceeded against, have not been made party to the same. True enough, that the Magistrate is seized of the offence, and not of the offender, and can act, under certain circumstances, under section 351 of the Criminal Procedure Code by taking cognizance against some other persons, who, from the evidence, might appear to have committed the offence. But the non‑prosecution of certain offenders will. under no circumstances, vitiate the enquiry, or, the trial as it may be. The further contention, that there should have been a trial of the Company, or, Corporation, and it was only when the Company was found guilty that the trial should have proceeded against the Managing Director and other office‑folders of the Corporation, is wide off the mark. Section 63 of the Ordinance reads as under:‑
"63. Offences by Corporations.‑‑Where the person guilty of any offence under this Ordinance is a company or other body corporate, every Director, Manager, Secretary or other officer or agent thereof shall, unless he proves that the offence was committed without his knowledge or consent or that be exercised all due diligence to prevent the com mission of the offence, be deemed to be guilty of such offence."
A bare reading of this section will hardly put any construction on the argument advanced. The word "guilty" twice used in the section only means that some accusation of guilt is preferred against them, and no more. I am, therefore, of the opinion that there is no substance in this contention either.
9. Another contention raised was that the Labour Courts were in error to have dismissed the application filed by some of the petitioners for their discharge under section 253 of the Criminal Procedure Code. It was, how ever, argued on behalf of some of the respondents that an application for discharge under section 253 (1) of the Criminal Procedure Code would be premature, unless all the witnesses, proposed by the complainant, bad been examined, as required under section 252 of the said Code, according to which, the Magistrate had to hear the complainant (if any), and take all such evidence as may be produced in support of the prosecution. However , it was held,. in Muhammad Ibrahim Haji Mould Baksh v. T C. H. Naughton and others (A I R 1941 Sind 198) that both sections 252 and 256 of the Criminal Procedure Code must be read with section 253 of the Code, and that section 253 could not be robbed of its proper purpose by reason of section 252, or, section 256 of the said Code. It was also observed "I take it, the word "groundless" in subsection (2) of section 253, Cr. P. C. means, when there are no good grounds for the charge. It is of course possible to say that the charge is not groundless, when there: are bad grounds in support of it ; that is not the meaning of the word used therein." Further, it was observed that the amount of evidence, which would enable a Magistrate to say, that a particular charge was groundless is so entirely dependent on circumstances, that no general rule or direction except that. he is required to arrive at his conclusion judicially, and not capriciously, is likely to be of any use. In this case, some witnesses had not been called, but the Magistrate had said that they could not improve upon the complainant's version, and it was found that the conclusion reached by the Magistrate could not be said to be unwarranted. The prepondent view of the various High Courts now is that subsection (2) of section 253 gives the Magistrate ample jurisdiction, at any stage of the case, previous to the stage referred to is clause (1) of section 253, to discharge the accused. (See W. 1. Watson o. P. H. Metcalfe (25 Cr. L J 696) and the case of Muhammad Ibrahim Haji Mould Baksh referred to earlier). However, looking to the nature of the evidence led is support of the complaints, it can hardly be said that prima facie the in gredients of the offence could not be spelled out, or, that, in cases in which charge bad been framed, there was no case, which, if unrebutted, would not warrant the conviction of the petitioners. The orders, therefore, passed therein were in the exercise of lawful authority.
10. Mr. Mohsin Tayebally in the petition filed by him, being No. 1583/ 1974, urged that the proceedings before the Labour Court were vitiated on ground of mala fide. These came to be specified as issuance of process without taking into consideration the evidence on record. failure to exercise the power vested in the Court by refusing to pass orders in regard to the applications on behalf of some of the petitioners under section 205 of the Criminal Procedure Code. dismissing the application under section 253, and taking cognizance without taking note of the requirements of clauses (a) or (b) of section 90 of the Criminal Procedure Code. It is an admitted position that the learned Presiding Officer had examined the complainant before the issu ance of the process, as required under section 200 of the Code of Criminal Procedure ; had also dispensed with the attendance of some of the petitioners from the Court, and he had also considered the application for dismissing the application for the discharge of the accused under section 253 (1) of the Criminal Procedure Code. Assuming that there was any error in approach, ft will not be a question of absence of jurisdiction. but an error in approach .of law. That is not the same thing as mala fide. "Mala fide" came for consideration in the case of The Federation of Pakistan v. Saeed Ahmad Khan and others (P L D 1974 S C 151). The following observations, as to be found on page 170 from the leading Judgment of Hamoodur Rahman, C. J. (as he then was) might as well be reproduced : Mala fides" literally means "in bad faith" Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers. that is to say, for collateral purpose not authorised by law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, there fore, for a person alleging that an action has been taken mala fide to show ‑that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, ,, . . . . " Nothing will, therefore, turn on that.
11. It was further argued by Mr. Mohsin Tayebally that there will be no offence against the petitioners in the petition filed by him, as once the order of the Appellate Tribunal had been clarified in Review, the aggrieved workers had been re‑instated in employment. It is well‑settled law by now that an appeal against a decision of the Labour Court, except in case of award, is not competent before the Labour Appellate Tribunal. The appeal itself was coram non judice, and therefore the examination of the further question, as to whether the Review was competent, would be an essay in futility. That might or might not be a mitigating circumstance at the proper forum, but would not furnish an occasion for quashment under the extraordinary writ jurisdiction.
12. It cannot therefore be said that the impugned orders are not in the lawful exercise of the authority of the Labour Courts. I will, therefore, dismiss the petition, but there will be no order as to costs.
S. Q. Petition dismissed
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