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Criminal Miscellaneous Application No. 78 of 1987, decided on 8th June, 1987.

---S.561-A--Pakistan Essential Services (Maintenance) Act (1,111 of 1952), Ss.5 & 7(3)--Pending proceedings, quashing of--Accused/ petitioners executives of Pakistan Petroleum Ltd and services of an employee of the company were terminated by them Employee loading complaint against accused and to Deputy Commissioner who filed complaint before a Magistrate--Proceedings before a Magistrate on complaint by Deputy Commissioner--Notification dated 13--6-1968 authorised Deputy Commissioner to file complaints in Courts for offences under Act LIII of 1952 against employees connected with production, refining of oil and natural gas and their distribution, marketing and transmission; Notification dated 25-9-1976 authorised Deputy Commissioners to make complaints in respect of offences under said Act and Notification dated 24-9-1978 issued in respect of Oil and Gas Organisation to same effect--Pakistan State Oil Company Limited exempted from operation of the Act by notification dated 7-8-1986 but the Pakistan Petroleum Limited under which accused were working not exempted by Notification--Proceedings against accused were thus maintainable under law and complaint could be filed against them- Notifications of 1978 and 1986 would not make accused immune from prosecution- -Quashment of proceedings refused in circumstances.

Stanely Young etc. v. D.C., Karachi 1975 P Cr.L J 1; Ayub Shah and another v. Terbella Joint Venture, Hazara 1976 P L C 938 and Karachi Electric Supply Corporation Limited v. National Industrial Relations Commission and another P L D 1982 S C 113 ref.

Talmiz Burney for Petitioners.

Naushad Shafqat for the Intervenor.

M.A.I.Qarni for the State.

Date of hearing- 4th May, 1987.

This is an application under section 561-A Cr.P.C. for quashment of proceedings pending against the petitioners under section 7(3) of Pakistan Essential Service (Maintenance) Act, 1952, before the A.C. and S.D.M., Civil Lines, Karachi.

The brief facts giving rise to the present application are that the petitioner No.l Masrur Ahmed is working as General Manager, petitioner No.2 Noorullah Kazim is working as Administrative and Public Relation Manager, petitioner No.3 Iftikhar Ahmed is working as Director Compression Project, while the petitioner No.4 S. M. Raza is working as Compression Manager in Pakistan Petroleum Limited, having its Office in P.I.D.C. House, Karachi. That one Nusrat Habib, intervenor was employed with Pakistan Petroleum Limited as Senior Planning and Progress Engineer since 30th December, 1985. According to the petitioners, the intervenor Nusrat Habib was appointed on probation for the first year of his service as mentioned in para. 2 of the said appointment letter, which is reproduced below: -

"2. For the first year of your service with the Company you will be on probation, this period can be extended. During this probationary period either party shall have the right to determine this employment as any time without assigning any reason on giving one month's notice in writing or one month's. salary inclusive of allowances, except for misconduct, when it will be lawful for the Company to terminate the employment without such notice or salary in lieu thereof:"

That Pakistan Petroleum Limited was declared as essential service under the Pakistan Essential Service (Maintenance) Act, 1952, by a notification dated 7th August, 1986, published in the Extra- ordinary Gazette of Pakistan dated 11th August, 1986. That the services of said Nusrat Habib were terminated vide letter dated 4th November, 1986. That on or about 8th December, 1986, the above intervenor Nusrat Habib moved an application before respondent No.2, the Deputy Commissioner, Karachi (South) under section 7(3) read A with section 5(1)(c)(i) of Pakistan Essential Services (Maintenance) tact, 1952 requesting him to lodge a complaint with the Magistrate having jurisdiction, being the authorised Officer against the termination of his service. That on the basis of the application, respondent No.2 filed a complaint against the petitioners on 10-2-1987 in the Court of Assistant Commissioner and S. D. M. Civil Lines, Karachi, under section 7(3) of Pakistan Essential Services (Maintenance) Act, 1952. That in receipt of the above complaint S.D.M. Civil Lines, Karachi, issued summons against the petitioners to appear before him in person or by a pleader. In pursuance of the said summons, the advocate duly authorised by the petitioners appeared before the S.D.M., Civil Lines, Karachi, on 19-2-1987, but he was on some other duty. The said complaint was accordingly placed before the Link Magistrate, who issued bailable warrants against the petitioners. However, on the application, moved on behalf cf the petitioners, on gist February, 1987, the S.l).M. seas pleased to vacate the said bailable warrants.

The petitioners have moved the present application for quashment of the above proceedings.

Mr.Talmiz Burney appearing for the petitioners has contended that: -

(1) That the proceedings against the petitioners were not maintainable.

(2) That the notification dated 24-9-1978 contemplates filing of complaints by Deputy Commissioner in i-respect of offences committed by the employees., and not by employer.

(3) That the complaint does not disclose any offence within the meaning of section 5(c)(i) of Essential Services (Maintenance) Act, 1952.

'(4) That otherwise terms of appointment are itself a reasonable excuse within the meaning of section 7(2) of Essential Services (Maintenance) Act, 1952.

(5) In any case, alternatively the petitioners exercised their powers with due diligence and bona fide belief that services of probationers could be terminated.

(6) That the Organisation (Pakistan Petroleum Limited) was exempted in view of notification dated 7-8-1986, copy sent to the petitioners by letter dated 12-2-1987.

In support of the above contention, Nir.Talmiz Burney he relied upon; Stanely Young etc. v. D.C. Karachi 1975 P Cr.LJ and Ayub Shah and another v. Tarbella Joint Venture Hazara 1976 '-' L C 938.

In reply it was contended by Mr. Naushad Shafqat that: -

(1) That the Organisation was not a party and the four petitioner; were accused who are themselves employees, and the proceedings were maintainable in, law.

(2) That section 7(2) of Essential Services (Maintenance) Act, 1952, and the notification dated 25th September, 1976, clause (b) authorises the Deputy Commissioners to make complaints to Courts, in respect of offences under the said Act. It does not make any distinction.

(3) That the complaint prima facie shows that the petitioners/accused have committed an offence under the Act.

(4) That once a person was appointed, his services could not be terminated without giving any cogent reason.

(5) That whether the applicants exercised their powers with due deligence and bona fide belief is a question of fact, and cannot be decided in these proceedings without leading evidence.

(6) That the Organisation exempted by notification dated 7th August, 1986 was "Pakistan State Oil Company Limited" and not "Pakistan Petroleum Limited" in which the petitioners were working.

Lastly it was contended that the case was at initial stage, the questions of fact were involved, and prima facie the complaint disclosed that the petitioners had committed the alleged offence, therefore, the present application was premature and not maintainable.

In support of his contention Mr. Naushad Shafqat has relied upon Karachi Electric Supply Corporation Limited v. National Industrial Relations Commission and another P L D 1982 S C 113.

Mr.M.A.I.Qarni, learned counsel appearing for the State has contended that the proceeding taken against the petitioners were not maintainable, and therefore, he supports the quashment application.

I have considered the contentions of the learned counsel, and have also gone through the notifications as well as the cases cited at the Bar.

In order to appreciate the points raised by the learned counsel appearing for the parties, it is necessary to have a look at section 5(1)(c)(i) and section 7 of the Act. Section 5 reads as under: -

"Any person engaged in any employment or class of employment to which this Act applies who: -

(a) ... ... ... ... ... (b) ... ... ... ... ... (c) ... ... ... ... ...

and any employer of a person engaged in any of employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies who without reasonable excuse:-

(i) discontinues the employment of such person or .

(ii) ... ... ... ...

is guilty of an offence under this Act."

Section 7 provides penalties and procedure and reads as under:

"7(1). Any person found guilty of an offence under this Act shall be punishable with imprisonment for a term which may extend to one year and shall also be liable to fine.

(2) Where the person accused of an offence Act is Company, or other body corporate, every Director Manager, Secretary or other Officers thereof, shall unless he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence, be liable to the punishment provided for the offence:

(3) No Court shall take cognizance of any offence under this Act except upon complaint in writing made by a servant of any Government in Pakistan authorised in this behalf, Central (Government)."

The first notification which was issued under subsection (3) of section 7 of Pakistan Essential Services (Maintenance) Act, 195 was the notification dated 13th June, 1968, according to which, Deputy Commissioners were authorised to make within their respective jurisdiction, complaint of offence under the said Act, against persons employed in connection with the production and refining of Oil and Natural Gas, and their distribution, marketing and transmission.

Second notification was issued on 25th September, 1976,' authorising the Deputy Commissioners to exercise the following powers within their respective jurisdiction namely:

(a) ..... .....

(i) ..... .....

(ii)..... .....

(b) To make complaints in Courts in respect of the offence under the said Act.

The 3rd notification was issued on 24-9-1978 by Federal Government by which all the Deputy Commissioners were athorised to exercise within their respective jurisdiction the ewers:

(a) To direct by general or special order any person employed under the Oil and Gas Organisation except the punishment to Attock Oil Company, Rawalpindi, not to depart om such area or areas as may be specified in such area; and

(b) To make complaints in Courts in respect of offences tinder the said Act committed by the employees of the said Organisation.

A notification was issued on 7th August, 1986, declaring all classes of employment under the Oil and Gas Organisation except employment under the "Pakistan State Oil Company Limited" to be employment to which the said Act applies. This notification was followed by another notification dated 10th February, 1987.

The bare reading of sections 5 and 7 of the said Act, and the notification dated 25th September, 1976 issued there under, dearly show that the proceedings against the petitioners were maintainable under the Law. When a question was put to Mr. Talmiz Gurney, whether notification dated 24th September, 1978, had repealed the previous notification dated 25th September, 1976, his answer was in negative.

So far notification dated 24-9-1978 is concerned, it does not apply to the facts of present case inasmuch as the authorisation is in respect of the persons employed under the "Oil and Gas Development Organisation" who could be directed not to depart from such area or areas as may be specified in such order, and to make complaints in Courts in respect of offences under the said Act committed by the employees of the said organisations.

Likewise notification dated 7-8-1986 also does not apply to the present case inasmuch as the exemption allowed was in respect of "employment under the Pakistan State Oil Company Ltd." and not the "Pakistan Patroleum Ltd." under which the petitioners are working.

The 1st decision in case of Stanely Young etc. v. D.C.Karachi, 1975 PCr.L J 1 relied upon by Mr.Talmiz Burney shows that a/s 7, of the Act, every Director or other Officer of company accused of an offence will be liable for the punishment provided for offence, but he can escape punishment only if he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent commission of offence.

However, the application was allowed and the proceedings were quashed mainly because the notification dated 13-6-1968 did not authorise the Deputy Commissioner to file complaint against the employer.

In view of the notification dated 25th September, 1976 which was issued later, and which still holds good, the above decision with utmost respect is distinguishable and does not apply to the facts of the present case.

The second decision Ayub Shah and others v. Tarbela Joint Venture, Hazara P L J 1976 Tribunal cases (N.I.R.C.) page-372 relied upon by Mr.Talmiz Burney was given on 16-8-1975, and the facts of that case were totally a different. The dispute was over providing transport facility to the workers, and the question was regarding interpretation of Rule 3(2)(b), framed under Pakistan Essential Services (Maintenance) Rules 1962, and has no direct bearing regarding the facts of the present case.

In the case of Karachi Electric Supply Corporation Limited v. National Industrial Relations Commission and another P L D 1982 SC page 113 was held that:

"Section 5, deals with the description of employer or the employee. It would thus include termination of service according to the terms and conditions, discharge, dismissal, absence or abandonment and retrenchment. The directions issued in terms of rule 3(2)(d) concerning the termination of employment will also be covered in view of the wide and all embrassing language of this section. Any discontinuous of employment has necessarily to be judged from the test laid down in the section,. namely, that it was 'without reasonable excuse'. Therefore, if the respondents felts aggrieved either by their termination of service or dismissal, they should have taken steps to institute the proceeding as provided by section 7, and in that event, it would have been open to the Court to determine as to whether the termination, according to the terms and conditions of service, or by way of dismissal or discharge, was without lawful excuse or not, as the expression 'without reasonable excuse' signifies as excuse which is not lawful."

In view of the above discussion, I am of the clear view that the proceedings against the petitioners were maintainable and the complaint could be filed against the petitioner.

The complaint filed in the Court prima facie make out the case against the applicants and the notifications of 1978 and 1986 as discussed above do not immune the applicants from prosecution.

So far as the factual aspect of the case is concerned regarding the question whether petitioners exercised their powers with due diligence and bona fide belief that services of probationer could be terminated, is a question which can be decided only- after the evidence is led by the parties.

From the above discussion, I am of the considered view that no case is made out for quashment of proceedings and, therefore, the Crl. Misc. Application No.78 of 1987 is hereby dismissed.

S.A./M-182/K Application dismissed.

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