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Labour Revision Nos.l and 17 of 1884, decided on 15th March, 1985...

‑‑‑S. 36‑‑Criminal Procedure Code (V of 1898), S.200‑‑Cognizance of offence‑‑Meaning‑‑Such cognizance, would depend upon facts and circumstances of each case‑‑Cognizance would imply application of mind by Magistrate for purposes of proceeding under S.200, and under Chap. XVI or S.204 of Criminal Procedure Code, 1898.‑‑Failure to follow provisions of 5.200 of Criminal Procedure Code in respect of examination of complainant, held, would not invalid proceedings.

P L D 1966 S C 178 ref.

‑‑‑S. 61‑‑Documents‑‑Procuring of‑‑Serious allegations, requiring adjudication through documentary evidence, held, would justify Labour Court in procuring same especially where some of them were in possession of accused.

‑‑‑‑Ss. 35, 36 & 37‑‑Powers of Labour Court‑‑Labour Court for purpose of trying an offence under Industrial Relations Ordinance, held, would have same powers as are vested in Court of Magistrate specially empowered under S.30 of Code of Criminal Procedure, 1898‑‑Scheme of Ss.35, 36 & 37 of Industrial Relations Ordinance, 1969, not by implication but specifically would bar appeal, review or revision against order of taking cognizance of offence.

M. Maroof v. Muhammad Akram and 2 others 1983 P L C 411 rel.

‑‑‑S. 61‑‑Complaint‑‑Procuring of documents by Labour Court‑‑Plea of setting aside proceedings, before Labour Court‑‑Orders passed by Labour Court taking cognizance of offence under S.61, Industrial Relations Ordinance, 1969 and subsequently procuring document in proof thereof, being of interim nature and passed with view to facilitate interest of justice, held, would not justify interference in exercise of revisional jurisdiction‑‑Revision petitions would not be maintainable against interim orders passed by Labour Court.

Iftikhar Muhammad and K. N. Kohli for Petitioner.

Muhammad Riaz Ahmad for Respondents.

Date of hearing: 7th and 23rd February, 1985.

This judgment shall dispose of the Labour Revision Nos.l and 17 of 1984 filed on behalf of Marker Employees Union and others. By these petitions it has been prayed that the proceedings and the orders, dated 5‑12‑1984 and 5‑9‑1984 passed by the Presiding Officer, Labour Court Quetta be set aside. The proceedings and the impugned orders arose out of a complaint initiated under section 61 of the Industrial Relations Ordinance, 1969 against the petitioners on 21‑6‑1984 by Respondent Ghulam Qadir.

2. It is alleged by the complainant that he is a workman being an employee of the Marker Alkaloids Ltd. and the said management has paid a sum 'of Rs.126797 to the Marker Employees Union (Petitioner No.l herein.) which was deposited with the United Bank Limited at its Hudda Branch, Quetta and this amount represents the workmen's subscriptions deducted from their wages and is to be utilized for welfare of the workmen working under the management but Abdul Salam, the respondent No.2 who happens to be the General Secretary of the Union, being in league with other' office‑bearers is allowed to misappropriate the funds. In the complaint the instances have been cited and it has been alleged that Abdul Salam was removed from service by the management on the ground of misconduct of very serious nature and in spite of the fact the litigation initiated by this accused is his personal dispute with the management he has been allowed to utilize the funds of the Union lavishly and has arbitrarily incurred a huge amount in his private journeys to places outside Quetta and a sum of Rs.96,149 has been unauthorisedly incurred without rendering proper account therefore. It has been prayed that the opponents Nos.2 and 3 (General Secretary and the President of the Union) and other office‑bearers be dealt with in accordance with provisions of law as contemplated under section 61 of the Industrial Relations Ordinance and suitably punished. The complainant submitted his personal affidavit and also those of another in support of the facts alleged in the complaint whereupon the Presiding Officer issued summons to the accused persons for appearance but all the persons named in the complaint have avoided appearance and only few of them have appeared so far. (It is not necessary to give further details of the proceedings at this stage). On 31‑7‑1984 an application was moved by the complainant and it was brought to the notice of the Labour Court that the accused persons are withdrawing the amount from the Bank in such way that the entire Union funds is likely to be exhausted. It was accordingly prayed that they may be stopped to operate the account and the prohibitory order in that behalf be issued to the Bank concerned. The Presiding Officer of the Labour Court or. 31‑7‑1984 therefore, ordered the Hudda Branch of the U. B. L. to "freeze the above said account and not to permit any withdrawals therefrom. The amount can be deposited and not withdrawn until further orders. An application/ rejoinder on behalf of the accused/ petitioners was filed wherein the allegations contained in the application, dated 31‑7‑1984 were denied and some counter‑allegations against the complainant Ghulam Qadir were made and it was prayed that "application under reply may please be dismissed and the order of freezing of account may be vacated." The case was fixed on different dates and ultimately, 0vide orders, dated 5‑9‑1984, the Presiding Officer declined to vacate the earlier order passed by him on 31‑7‑1984. These two orders have been impugned in Revision No. 17 of 1984.

3. The complainant was required to lead evidence and he filed a list of witnesses on 22‑10‑1984 and prayed that the witnesses be summoned through process issued by the Court for which the diet money was paid. An application was also made on 4‑11‑1984 wherein it was prayed that "annual returns and records pertaining to from F & J (Part I and LV) as contemplated under Rule 4, Sub Rule 4 read with Rule 10 of the Industrial Relations (Baluchistan) Rules, 1973 and the statement of account maintained by the Respondent No.l (Union) in the National Bank of Pakistan (concerned branch) and the U.B.L. Hudda Branch be summoned from. the Director Labour Baluchistan, Quetta. It was also prayed that on the production of the required record it be sealed so the Respondents may not tamper with the record pending the proceedings in the Court in the interest of justice". Another application was filed on 8‑12‑1984 wherein the documents mentioned in para 3 thereof which were in possession or'' the accused were required to be taken into possession so that the contents of the said documents may not be changed, altered or removed, thus the purpose of the complaint may not be frustrated. The representative of the Labour Department produced the record but the accused /petitioners resisted the application. The Labour Court trying the complaint on 5‑12‑1984 passed the orders. The relevant part thereof reads: ‑

"The record of the Union as mentioned in the application is seized and the Registrar Trade Union is directed to take into possession of the record, and produce it in the Court to facilitate adjudication of the case."

This order is impugned in Revision No.l of 1984 filed on 22‑12‑1984 in this Court and it has been prayed that "the record of the case may be called for and after examining its legality and improprieties the order, dated 5‑12‑1984 may be set aside and the proceedings may be quashed."

4. Mr. Iftikhar Muhammad, Advocate appeared for the petitioners in Revision No.17 of 1984 while Mr. Kailash Nath Kohli, Advocate in Revision No.l of 1984. Both have been heard and they have raised the following contentions: ‑

(a) That the complainant Abdul Qadir has no locus standi to file the complaint (i) as he was not an aggrieved person as he himself is an office‑bearer of a rival Union, (ii) he has not been authorised by the Registrar;

(b) The Labour Court has not followed the procedure laid down in the Cr. P. C. in that he had to examine the complainant under section 200 Cr. P. C. which he has not done.

(c) That the Labour Court is not competent to grant an injunction by way of attachment of accounts as has been done by him.

5. As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is not possible to attempt to define what is meant by taken cognizance. It is only when a Magistrate applies his mind for the purposes of proceeding under section 200 Cr. P. C. and subsequent Chapter XVI of the Code or under section 204 of Chapter XVII of the Code that it can be possibly stated that he has applied his mind. There is no provision in the Code to the effect that a failure to follow the provisions of section 200 Cr. P. C. in respect of examination of complaint entails invalidation of proceedings taken (See P L D 1966 S C 178). The objection of the learned counsel for the petitioners that the trial Court has not examined the complainant on oath as required under section 200 Cr.P.C. is therefore, of no consequence.

6. There are very serious allegations, which cannot be decided without evidence and the documents are necessary for adjudication and some of them are in possession of the accused. The Labour Court therefore, does not appear to have committed any illegality in procuring these documents.

7. An objection about the maintainability of the revision before this Court has been taken by Mr. Talmiz Burney, Advocate appearing for the Respondent herein and it has been contended by him that only a final order can be challenged and that too if the accused are convicted of the charge and since so far no evidence is recorded which is successfully avoided by the petitioners by filing the petitions in this Court the petitions are premature. Admittedly, the complaint has not been allowed to be proceeded with and so far only cognizance of the complaint has been taken by the Labour Court. A Labour Court shall for the purpose of trying an offence under the I.R.O. have the same powers as are vested in the Court of a Magistrate of the first Class specially empowered under section 30 of the Code of Criminal Procedure of 1898 (section 36 of the I.R.O.). The Scheme of sections 35, 36 and 37 of the I.R.O. not only by implication but even specifically bars, an In appeal review or revision against an order of taking cognizance. A Division Branch of the Karachi High Court in M. Maroof v. Muhammad Akram and 2 others, 1983 P L C 411 has held that the decision of the Labour Court for taking cognizance is not open to appeal, review or revision. At page 414 of the report the learned judge who has rendered the judgment on behalf of the Bench has observed: ‑

"In the present case, the proceedings by way of constitutional petition arose out of an order of the Labour Court taking cognizance of a complaint against the two accused at the instance of the complainant. A Labour Court has the power to try an offence under the I.R.O. or any other offences the jurisdiction to try, which may have been conferred upon or assigned to a Labour Court by order under the I.R.O. or any other law. Such power vests in a Labour Court by virtue of clause (c) of sub‑section (5) of section 35 of I.R.O. under sub‑section (3) of section 36 of I.R.O. a Labour Court shall for the purposes of trying an offence have the same powers as, are vested in a First Class Magistrate specially empowered under section 30 of the Criminal Procedure Code. This provision also provides that for the purpose of appeal from a sentence passed by a Labour Court the said Court shall be deemed to be a Court of Sessions under the Criminal Procedure Code so that an appeal would lie before the High Court in case an accused is convicted or acquitted. Again sub‑section (4) of section 37 of I.R.O. provides that all decisions of a Labour Court, other than awards, and sentences referred to in sub‑section (3) of section 36 of I.R.O. shall be final and shall not be called in question in any manner by or before any Court or other authority. On a plain reading of these provisions it would be clear that the only remedy provided by the I.R.O. in cases arising out of prosecutions before a Labour Court is by way of an appeal in a case where a sentence is passed by a Labour Court and no more."

8. The contention raised by the counsel of the petitioners as mentioned in para 4 (A) has also been answered by their Lordships in Karachi case referred above in the following words: ‑

"Mr. Noor Muhammad, the learned Advocate for the respondents has contended before us that in cases where law makes express mention in regard to the functionaries for the fulfilment of an object or the statute, exclusion of every one else is implied. This doctrine cannot be considered to be of universal application and is not destructive of the fundamental principle that at least an aggrieved person has a right to invoke the jurisdiction under statute if he affected by it."

I am in respectful agreement with the above view and accordingly am of the view that the present petitions are not maintainable.

9. As a matter of fact the orders passed by the learned Presiding Officer Labour Court are of interim nature and passed with a view to facilitate the interest of justice by procuring the evidence found necessary for the adjudication.

For the above reasons, I am of the considered view that this is not a fit case to be interfered with. The petitions therefore, fail and are accordingly dismissed with no order as to costs as the parties are workmen. The record shall be remitted to the Labour Court for proceedings with the matter in accordance with law.

A.A.

Petitions dismissed.

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