ALI BAHADUR Versus CHAIRMAN, PAKISTAN RAILWAY BOARD, LAHORE

By this common judgment I intend to dispose of the following Labour Appeals:-

1. Labour Appeal No. 5 of 1990.

2. Labour Appeal No. 6 of 1990.

3. Labour Appeal No. 7 of 1990.

4. Labour Appeal No. 8 of 1990.

5. Labour Appeal No. 9 of 1990.

All the aforesaid appeals are directed against the impugned order dated 9th December, 1989 passed by Presiding Officer, 1st Labour Court Balochistan, Quetta whereby complaints filed by appellants under section 25-A(9) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "1.R.0.") were dismissed for want of jurisdiction.

2. Facts briefly stated are that the appellants filed application under section 25-A(10) of I.R.O. seeking confirmation as A.C.C. and Assistant A.C.C. Attendants from the date of their appointments as such attendants. On refusal of the concerned Railway Authorities the appellants moved an application before the Labour Court which was allowed vide order dated 29-9-1983 and the appellants were ordered to be confirmed as such. The respondents did not prefer an appeal against the aforesaid order which attained finality.

3. Since then appellants have been making every effort to the respondents for implementation of aforementioned orders, but the respondents have been avoiding to implement the said orders by adopting dilatory tactics. Different and lengthy correspondence in this respect has been ;laced on record.

4. Being constrained, the appellants moved an application to the Labour Court for taking action according to law against the respondents. The said complaints were contested by the respondents on the plea that Labour Court had no jurisdiction to take cognizance of the complaints filed by appellants and the learned Labour Court vide impugned order dismissed the complaints as such. Hence these appeals.,

5. Heard Mr. W.N.Kohli for the appellants and Mr. Shakil Ahmad, Advocate for the respondents.

6. It was contended by Mr. W. N. Kohli that the lower Court acted illegally in the exercise of its jurisdiction by not entertaining the complaints filed by the appellants. Rather it has failed to exercise its jurisdiction in accordance with the provisions of I.R.O.. by returning the complaints to the appellants to be filed in proper Criminal Court. In furtherance of said arguments learned counsel canvassed that since the order passed by Labour Court dated 29-9-1983 was final and no appeal was filed before the Appellate Tribunal, hence the respondents were under bounden duty to have implemented the same.

7. Mr. Shakil, however, while relying on the following authorities stated that the order passed by Labour Court is unexceptionable :-

1. 1988 PLC pages 545, 668,1005;

2. 1988 PLC pages 545.

3. PLJ 1986 Tribunal Cases Labour 226;

4. 1981 PLC page 663;

It was contended that the Labour Court has no jurisdiction to directly entertain a complaint filed by workman for non-compliance of the decision of the Labour Court if no period is specified for implementation of its orders.

8. Non-compliance of order given or passed by the Labour Court or decision made by the Tribunal if not given effect to constitutes an offence where the defaulter shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to 1000/- rupees. This is, so laid down in section 25-A(8) of the I.R.O. But for the purpose of settlement of controversies in present appeals, the question is as to which body or person is competent to file complaint or set the law into motion in such cases. We can find the answer in subsection (9) of section 25-A of the I.R.O. which reads as under :-

"25A. Redress of individual grievances: -

(1). ......................

(2). ......................

(3). ......................

(4). ......................

(5). .

(6). ......................

(8) . ......................

(9) No person shall be prosecuted under subsection (8) except on a complaint in writing :-

(a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or

(b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with."

(10). ......................

9. There is a chain of authorities on the point in issue where it has been held that the real intention of the legislature appears to be that the period within which an order or decision of the Labour Court or the Tribunal is to be complied with. is not specified in the order itself it should not be left open to the complainant to initiate proceedings against the defaulter but the proceedings should be initiated only on the complaint of the Tribunal or the Court itself. But of course scope of clause (b) of subsection (9) of section 25-A of I.R.O. is not restricted to such cases only, for there may be cases where there has been non-compliance with the order of the Labour Court although the period for complying with the order is specified in the order itself. The first reliance in this respect is placed on the case of Saleem Aziz Siddiqui and ! another v. Labour Court No. VI and another (1981 P.L.C. 663). Subsequent to I this the following authorities have supported the same view:-

1982 PLC 897, 1983 PLC 1088, PIJ 1986 Tribunal Cases Labour 226, 1988 PLC 545, and 1988 PLC 364, 545 and 668;

10. I have had the honour of going through the aforesaid reports. The basic authority appears to be 1981 PLC 663. The reasonings to reach the aforesaid conclusions were given in para. 6 of the judgment which is reproduced below:-

"6. Before examining the import of these two subsections, it may be pointed out that they alongwith subsection (10) were added by Act XI of 1976. A bare reading of the above two subsections makes it clear that whereas clause (a) is applicable to cases where the period for the compliance of the order of the learned Labour Court or the Tribunal is specified in the order itself clause (b) applies to cases where an order or decision of the Labour Court or the Tribunal is not complied with at all. The difference in the phraseology of the two clauses is significant and cannot be ignored. No doubt, it is provided in subsection (8) of section 25-A, that if a decision or order is of a Labour Court or Tribunal, which does not specify the period within which it is to be given effect to or complied with is not complied with within a week, the defaulter is liable to be punished, but the said sub-section merely states the ingredients of or the acts which constitute the offence, but it cannot be read as indicating that there a decision or order of the Tribunal or a Labour Court does not specify the period for its compliance, the period is to be considered as 7 days, and that further the said period is to be presumed to be specified in the order itself. If such had in fact been the intention of the Legislature, not only the wording of the 2 clauses would have been different but possibly clause (b) would become largely redundant. In fact, the real intention of the legislature appears to be that where the period within which an order or decision of the Labour Court or the Tribunal is to be complied with is not specified in the order itself, it should not be left reopen to the complainant to initiate criminal proceedings against the defaulter, but the proceedings should be initiated solely on the complaint of the Tribunal or the Court itself. Of course the scope of clause (b) of subsection (9) of section 25-A is not restricted to such cases only, for there may be cases where there has been non-compliance with the order of the Labour Court, although the period for complying with the order is specified in the order itself. In such cases, presumably, if the Court considers it appropriate, it could file a complaint, against the defaulter under the provisions of clause (b) of sub-section (9) though the complainant may not have filed any complaint."

From perusal of the aforesaid observations it appears to me that the learned Judge while interpreting clauses (a) and (b) of subsection (9) of section 25-A of I.R.O. concluded that a complaint in writing can be made by a workman only if the order or decision in his favour is not implemented within the period specified therein , (underlining is mine) as mentioned in clause (a) of subsection (9) of section 25-A of I.R.O. It was, however, concluded that if there is no period specified in the order itself for its implementation then the complaint cannot be made by the workman but the Labour Court or the Tribunal itself. For reaching such conclusion the learned Judge thought that if this interpretation is not adopted, then clause (b) of subsection (9) of section 25-A of I.R.O. would become largely redundant. He, therefore tried to find out the real intention of the legislature which according to his conclusions was that if an offence is committed within the meaning of subsection (8) of section 25-A of the I.R.O. and no period is specified for its implementation, then the Labour Court or the Tribunal should file complaint and not the workman.

11. With utmost respect I do not associate myself with the said reasonings nor with the conclusions so drawn. I am mindful of the fact that subsequent to said judgment, the Labour Appellate Tribunals of Punjab have also followed the same view in a number of cases.

12. As stated in the preceding paras that non-compliance of any decision made by Labour Court or the Tribunal constitutes an offence and the Labour Court is empowered under section 35(3)(c) of the I.R.O. to try offences under the Ordinance. Similarly it is competent to exercise all the powers as are vested in the Court of Magistrate of 1st Class specially empowered under section 30 of the Code of Criminal Procedure as envisaged under section 36(3) of the I.R.O. Thus it is settled that it is the Labour Court which is competent to try offences under section 25-A(8) of the I.R.O. and not the Magistrate First Class as argued by Mr. Shakil Ahmad, learned counsel for respondents. Hence the argument that the Labour Court should file a complaint under section 25-A(9)(b) of the I.R.O. in the Court of Magistrate First Class for trying offenders/defaulters under section 25-A (8) of the I.R.O. is devoid of any force; because it is clearly laid down in the I.R.O. that it is the Labour Court which is competent to try such defaulter.

13. However, still the moot question which requires consideration remains whether such proceedings can be initiated on the complaint in writing by the workman-even if the order which has not been implemented does not specify any period for its implementation? In my humble view if a final order passed by the Labour Court or the Appellate Tribunal and which was to be implemented by an authority but not so implemented then the workman in whose favour such decision was made or order passed is competent within the meaning of subsection (9) of section 25-A of I.R.O. to file a complaint in 13 writing before the Labour court irrespective of the fact whether any period was specified for implementation of such order or not. While examining subsection (9) of section 25-A of I.R.O. and import of its two sub-clauses I have come to the conclusion that specifying certain period for implementation of an order passed by the Labour Court or Tribunal has no direct relevancy or nexus with legal competency of workman to file a complaint. To my mind the insertion of the words in subsection (9)(a) with the effect "period specified therein" have been so inserted to enable the authorities to execute the orders of the Labour Court or the tribunal within such period but in case they failed to implement the order so passed by the Labour Court or Tribunal then workman can initiate proceedings by filing a complaint in writing under this subsection, after the period so specified comes to an end and not before it. Thus after the lapse of period specified in the order to be implemented, the workman is competent to file a complaint in writing and there is no express bar upon him under subsection (9)(a) and (b) that he cannot file such a complaint. In fact clause (b) of subsection (9) is not repugnant to clause (a) but is an addition to the same; meaning thereby tuft the Labour Court or tribunal can also take cognizance of the offence suo moto if it comes to their knowledge that their orders have not been complied with, although workman had filed no such complaint.

14. To my estimation if an order passed by Labour Court or Tribunal is not implemented and there is no specified period for its implementation in the p order itself, even then the workman can file a complaint in writing to the Labour Court for taking action under section 25-A(8) of the I.R.O. The reason being that the legislature has not expressed in clear words that in such event the workman cannot file any complaint but it would be only the Labour Court or the Tribunal who shall be competent to file complaint. The natural corollary of said discussion would be that sub-clause (b) in fact authorises simultaneously the workman, the Labour Court and the Tribunal to file complaints for non-implementation of the orders passed by Labour Court or the Tribunal. There might arise occasion where order of the Labour Court dismissing the application is reversed by tribunal who orders, for instance, reinstatement of some workman. In such event the Labour Court shall not know whether such order has been complied with or not. Thus it will be the workman who shall bring to the notice of the Labour Court or the Tribunal to take cognizance. The observation that filing of complaint by a workman in cases where no specified period is mentioned in the order would render subclause (b) as redundant cannot be accepted or adhered to because in sub clause (b) the Labour Court and the Tribunal have also been given additional power to take cognizance suo motu. Thus clause (b) is in consonance with and in addition to sub-clause (a) and it is in no way derogatory to clause (a).

15. It is a well settled principle of interpretation of statutes that the Courts should try and make every attempt while interpreting different sections of a statute or different subsections/sub-clauses in a manner so as to make them E harmonious or compatible, instead of attaching to them meanings, which would render them derogatory or conflicting with each other. But clauses (a) and (b) of I.R.O. ex-facie are not derogatory nor literal meaning of each makes the other redundant.

16. I now advert to attend this issue from another angle. In criminal jurisprudence any person having knowledge of Commission of an offence may report the matter even though he is not an injured person or an aggrieved person unless there is a prohibition from taking cognizance other than on a complaint by a specified authority. In absence of any such provision, anN person may bring to the notice of the competent authority regarding commission of an offence and the competent forum under law shall proceed to take action. In section 13(b) of the I.R.O. it is Registrar of the Trade Unions who is competent to lodge or authorise any person to lodge complaints with Labour Court or Commission for action including prosecution against trade unions, employers, workers or any other person for any alleged offence or for any unfair labour practice or for violation of any provisions of this Ordinance etc. But still if the Registrar does not lodge any such complaint or authorise any person to lodge such complaint, it would not mean that a workman cannot file such a complaint. In case of Muhammad Akram and another v. Second Sindh Labour Court and another (1987 SCMR 31) the Hon'ble Supreme Court of Pakistan ruled that in absence of any complaint Labour Court is competent to take cognizance of a complaint lodged by a private party. The observations of the Hon'ble Supreme Court are very relevant for determination of controversy in hand, therefore, for the sake of expediency and convenience the relevant observations are reproduced:--

"9. Now the general rule under the Criminal jurisdiction is that any person having knowledge of the commission of an offence may set the law in motion by a complaint even though he is not a person injured by the commission of the offence. However, in many enactments an exception to this general rule has been provided so that in regard to certain offences the power of cognizance on a complaint has been restricted to complaints by specified persons. For instance sections 195, 196, 196-A, 198 and 199 of the Criminal Procedure Code. These sections relate to prosecution for contempt of lawful authority of public servants, offences against public justice, offences relating to documents given in evidence, offences against the State, certain classes of criminal conspiracy, breach of contract, defamation and offences against marriage and offences of adultery and enticing a married woman. In all these cases no Court can taken cognizance of such offences except upon complaint made by the specified person or authority. The object underlying these provisions is to prevent improper or reckless prosecution by private persons for offences in connection with administration of public justice, contempt of lawful authority of public servants, and offences of personal nature affecting individual aggrieved persons. These provisions of law are aimed at giving protection to parties and witnesses, against vexatious or frivolous prosecutions for their resorting to Court and giving evidence therein and such protection is afforded by prescribing the necessity of a complaint by the public authority or the individual affected. It is well-settled that provisions of this nature are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein, unless there is complaint in writing as required by the said sections. In all such provisions the prohibition from taking cognizance otherwise than on a complaint by the specified authority or person, is couched in negative terms, like `no Court shall take cognizance'. Similarly the provisions of the previous enactments referred to by the learned counsel are also couched in negative terms prescribing an absolute bar on the power of the Court to take cognizance of such offences except on a complaint made by or under the authority of the Government".

The import of the aforesaid observations is that in absence of any clear or positive bar the Labour Court can take cognizance of any offence under the I.R.O. In the instant case in subsection 9 (a) the workman has been specifically E empowered to file a complaint. To say that such complaint can be filed only where a period is specified in the order and not otherwise, in my considered view would tantamount to deprive the workman from filing a complaint which otherwise he is competent to file under section 9 (a) of section 25-A of the I.R.O.

17. For all such reasons I am inclined to hold that the workman is competent to file a complaint in writing to the Labour Court for proceeding against the defaulters who had not implemented the order of the Labour Court G irrespective of fact whether any period has been specified for implementation of such order or not.

18. It is worth to point out that after arguments were concluded and judgment was reserved learned counsel of respondents moved an application that no such cadre is available in the Electrical Branch of Railways Establishment to which they belong. Some extracts of personnel manual were also filed alongwith said application. Suffice is to mention that in the order dated 29-9-1983 the same stand has been discussed but rejected by the Labour Court in the following terms:-

"In view of the above discussion I hold that there does exist ACC and AACC attendants Cadre. That the applicants are working as ACC and AACC attendants and they are entitled to confirmation having already completed for more than three years of service".

This argument, therefore, is devoid of any force because the respondent did not challenge these observations of the Labour Court in due course of time before competent forum.

For all what has been stated hereinabove, I am inclined to accept these appeals. As a result the order dated 9-12-1989 passed by 1st Labour Court Balochistan, Quetta is set aside. Since the 1st Labour Court has failed to exercise jurisdiction vested in it, the cases are remanded to it for proceeding in accordance with law on the complaints filed by the workmen. The respondents have to bear the costs throughout.

H.B.T. 31 Sr.B Appeals accepted.