Syed HAROON BOKHARI Versus ABDUL JALIL AND OTHERS

On 1st December 1973, Syed Haroon Bokhari, General Manager, Khybar Tobacco Company Limited, Mardan lodged a complaint with the Commission under section 16 read with sections 53 and 54 of the Industrial Relations Ordinance, 1969 against 20 employees of the Company. The facts of the case as mentioned in the complaint may briefly be stated as follows

2. The Khyber Tobacco Company Ltd. is engaged in manufacturing pf cigarettes and operates a Factory at Mardan since 1962. The workers employed therein are repre3ented by "Khyber Tobacco Company Labour Union which is the CBA (hereinafter referred to as the Union ). On 8th January 1973 the Union and the Management signed a Memorandum of Settlement (Exh P. A.) which was operative for 1 year and 10 months with further stipulation that it will continue to be binding on the parties until the expiry of two months from the date on which a notice in writing of an intention to terminate this agreement is given by one of the parties hereto to the other party. According to clause 8(b) of the agreement (Exh. P. A.), the Union undertook not to raise any demand involving financial commitment during the currency of the said agreement. Despite that the Union submitted a Charter of Demands (Exh. N. B) on 1st June 1973 which was received by the Management on 13th June 1973 whereby they asked for house rent. This was rejected by the Management (Exh. P. C.) on the ground that the previous agreement did not authorise raising of 'fresh demands involving financial implications. The Union again raised the same demands of quarter allowance vide (Exh. P. D.) The Management, however, reiterated that the demand was legally untenable (Exh. P. E.). This was resented by the Union as' a result of which they started coercing and pressurizing the Management.,

3. On 22nd November 1973 the Annual General Meeting of the Board of Directors and shareholders was scheduled to be held the premises of the Company. The Union leaders displayed banners at the entrance gate of the Factory with inscription there on Give Quarter Allowance . Apart from this, the workers wore black arm bands. At about 9-45 a.m. the Chairman, Directors aria Shareholders arrived to participate in the meeting. Eventually, the Chairman and the Directors had a meeting among themselves in the General Manager's office. After the Annual General Meeting, the Directors' meeting commenced in the General Manager s office situate at the first floor. During the course of the said meeting, Abdul Rehman (accused No. 1), Abdul Jalil (accused No. 2), Muhammad Aslam (accused No. 3) and Sher Dad (accused No. 4) broke into the General Meeting's office at about 11-55 a.m. and asked for an appointment to discuss with the Chairman and the Directors their demand about the "Quarter Allowance". The Chairman advised them to come at 18-30 p.m. At about 12-40 p.m. Abdul Rehman (accused No. 1) who was accompanied by other workers walked into the General Manager's office while a number of workers occupied the corridor balcony. They asked the Board that their demand of quarter allowance must be accepted there and then failing which they threatened that they would not allow anyone of them to leave the Factory premises. Briefly stated, the Chairman refused to accept their demand and thereafter he and other Directors tried to go down-stair. In the meanwhile, at about 12-45 p m the work-force gathered in front oil the porch and gheraoed the vehicles of the Members of the Board and did not allow the Chairman, Directors and others to leave the Factory premises. Ibrar Khan (accused No. 6) assisted by 4 colleagues took possession of the entrance gate of the Factory thereby not allowing any one to leave. He also disconnected the telephone connection with outside. Since the work-force was furious and to avoid physical injury, the Chairman and the Director thought it advisable to leave the porch and go up-stair in the General Managers office, the workers blocked their way. Amongst those workers, Muhammad Aslam (accused No. 3) and Ahdul Jalil (accused No. 2) etc. obstructed the movement of the Chairman and the Directors. However, after much efforts, they managed to reach the General Manager's office. In the meanwhile. Major-General Sherin Dil Khan Niazi and Brig. Mahboob Khan arrived. The office bearers of the Union also broke into the General Manager's office. Amongst the more aggressive were Abdul Jalil (accused No. 2), Muhammad Aslam (accused No. 3) Sher Dad (accused No. 4) and Sher Hassan (accused No. 5) etc. and forced the Chairman to accept demand forthwith. Later, the police was requisitioned as a result of which the E. A. C. alongwith Mr. Said Akhtar Zaidi City Police Inspector arrived but none could prevail on the workers to lift the gheroo . Eventually, the Assistant Commissioner, Mardan arrived at 3-00 p.m. and addressed the workers down-stair. At intercession the gherao was lifted as a result of which the Chairman and others were able to leave the Factory at 4-40 p.m. The workers who had struck work at 12-45 p.m. resumed their duties at 3-45 p.m.

4. The preliminary statement of the complainant (Syed Haroon Bokhari) was recorded on 12th December 1973. Thereafter, notices were issued to the following 6 office bearers of the Union who appeared to have acted as ring-leaders:-(1) Abdul Rehman, President. (2) Abdul Jalil, General Secretary. (3) Muhammad Aslam, Chairman. (4) Sher Dad, Assistant Organizing Secretary (5) Sher Hassan, Cashier (6) Itbar Khan, Publicity Secretary.

At the trial, the case of the prosecution as detailed above was fully supported by Syed Haroon Bokhari, General Manager, Abdul Rahim Khan Director Khyber Tobacco Company, Major-General (Retired) Sherin Dil Khan Niazi, Mr. Mahmood Khan Assistant Commissioner, Mardan, Said Akhtar Zaidi City Inspector Police, Mardan and Humayun Khan, Gate Sergeant, Khyber Tobacco Company as P. W. 1, P. W, 2, P. W. 3, P. W. 4 P. W. 5 and P. W. 6 respectively. All of them corroborated the version advanced by the prosecution qua gherao .

5. Syed Haroon Bokhari (P. W. 1) is an eye-witness of the occurrence. He has categorically stated that at about 12-30 p.m. on 22nd November 1973 all the 6 accused entered the room where the meeting was being held by the Board of Directors including the Chairman and demanded Quarter Allowance and held out the threat that unless their demand was accepted, the Chairman and the Directors would not be allowed to leave the room. Thereupon, the Chairman told them that they should submit their demand in a proper way and that within 14 days he would pass an appropriate order thereon. This reply did not pacify them and they (accused) reiterated that they would not allow any one of them to leave the Factory premixes. Later, when the Chairman and others reached the porch, they were surrounded by about 150 workers who blocked their way. The Police could only be contacted through the direct telephone line which had not been disconnected. Accordingly, the General Manager informed the Police as a result of which Mr. Murtaza Khan, EAC reached the rile at about 2-00 p.m. alongwith the police. They, however, failed to get the gherao lifted. Later, at about 2-30 p.m. the Assistant Commissioner reached the spot and he succeeded in persuading the workers to allow the Chairman and others to leave the Factory. This was done at about 3-45 p.m. In short, the Chairman and others were able to leave the Factory at 3-45 p.m. During the cross-examination, the witness repudiated the suggestion that he had asked the workers to assemble in front of the porch to welcome the Chairman who would also address them. At a Court question, he submitted that Itbar Khan (accused No. 6) had blocked the main gate of the Factory which is situate at the distance of about 150 yards from the porch.

6. Abdul Rahim Khan, Director (P. W. 2) deposed at the trial that he had seen posters and placards at the main gate hearing the inscription "Give Quarter Allowance". He further stated that he noticed the workers wearing black badges on their arms. He also stated that during the course of the meeting a team of the workers rushed in and asked them (Chairman and Directors) to accept their demand of "Quarter Allowance". At a Court question he pointed out towards Abdul Jalil (accused No. 2) and Abdul Rehman (accused No. 1) who had rushed in. Lastly, he stated that lie himself saw that the Chairman and others had been surrounded by the workers quite a few hundred of them were making the demand of Quarter Allowance and that they folio Need them when they (Chairman etc.) %ere or, their way to the General Manager's office and made it known to them that they would not allow any one of them to leave the room unless their demand of quarter Allowance was accepted. He further stated that it was at about 3-30 p.m. that they were escorted by the Assistant Commissioner and thereby they were able to leave the Factory.

7. Major-General (Retired) Sherin Dil Khan Niazi (P. W. 3) deposed that he reached the Factory at the time when Major-General Muhammad Nawaz Malik, Chairman and others were standing slightly away from the porch and were trying to climb upstair. He found the main entrance blocked as a result of which none of them could go out or enter in the office. He unequivocally stated that the Chairman and others were pushed in by the workers arid as Major-General Muhammad Nawaz Malik was going upstair, his way was blocked. He further made the following statement

The workers also made it clear to me that since the Chairman and Directors were there they were trying to get their demand accepted. They added that they will let them go in the office when their demand is accepted. All that I can say is, that the scene was gashtly The workers were misbehaving with the Chairman and the Directors. They tried to pull their shirts etc. to prevent them from proceeding towards the office.

This witness identified Abdul Rehman (accused No. 1), Abdul Jalil (accused No. 2), Muhammad Aslam (accused No. 3), Sher Hassan (accused No. 5) and Itbar Khan (accused No. 6). About the latter, he stated that he was at the main gate. He added that after the entire episode was over i.e. pushing etc. he saw Abdul Rehman (accused No. 1) and Abdul Jalil (accused No. 2) sitting with Major-General Muhammad Nawaz Malik etc. trying to coerce them to their demand there and then. While making the statement, the witness deposed that considering the unpleasant situation, other Directors were advising the Chairman in his presence to sign the Memorandum of Settlement as desired by the workers under duress but he (Chairman) did not agree to their advice. Later, this witness telephoned the Deputy Commissioner to send police force in large number. He also contacted the Deputy Commissioner in his office. Itbar Khan (accused No. 6) tried to stop him at the gate but when he told him that the was a guest, he was allowed to go out. The Deputy Commissioner accordingly sent the Assistant Commissioner to the spot. He reached the Factory at about 3-00 p.m. Earlier, he had deputed a Magistrate namely Mr. Murtaza Khan to visit the Factory alongwith police force. On reaching there, he was told by the workers that they were demanding "Quarter Allowance." At this, he (Mr. Mahmood Khan) assured the workers that he would talk to the Chairman and would inform them of the result. Accordingly, he went upstair and found the Chairman and the Directors in a room in a very upset mood because they had been detained by the workers. They informed him that the telephone had been cut and that the workers had placed them in that situation because they wanted to get their unreasonable demand of Quarter Allowance accepted. Thereafter, the Assistant Com missioner told the workers that they should approach him in this capacity as the Presiding Officer, Junior Labour Court and that he would redress their grievance. At his assurance, the workers dispersed and resumed their duties at 3-45 p.m. During the cross-examination he made it clear that Major-General Muhammad Nawaz Malik had been allowed to go out by the workers.

8. Mr. Said Akhtar Zaidi, City Inspector of Police (P. W. 5) deposed that he had reached the Factory on being informed that there was some disturbance. He added that he was asked by the Magistrate to get to the workers but they refused to listen to him.

9. P. W. 6 (Humayun) is the Gate Sergeant of the Tobacco Company. He stated that the workers had hosted banners with inscription thereon Give us Quarter Allowance . He added that at about 12-45 p.m. there was a cry raised by the workers in front of the main gate to the effect Give us Quarter Allowance . Lastly, he stated that Mbar Khan (accused No. 6) reached there and asked him to band over the key of the main gate but he refused. Despite the refusel, Itbar Khan (accused No. 6) closed the gate and bolted it from inside. However, the gate was opened when the EAC and the Assistant Commissioner arrived.

10. The statement of the above prosecution witnesses were recorded on 19th December 1973 at Mardan. After the close of the prosecution case, the accused denied allegations of the prosecution.

11. It is pertinent to note at this stage that the accused filed a writ petition challenging the jurisdiction of the Commission to take cognizance of the complaint whereby the Division Bench of the Peshawar High Court by its order dated 24-1-1974 directed the Commission to stay further proceed ings. This stay order was eventually vacated on 5th December 1974. As such inevitable delay in the disposal of this case has occurred.

12. Since Major-General Muhammad Nawaz Malik, was the material witness in this case I summoned him as Court Witness. He, accordingly, appeared before the Commission on 4th February 1975. Briefly stated, he deposed that on 22nd November 1973 a meeting of the shareholders commenced at about 10-00 a.m. and concluded at about 12-00 noon. Thereafter, Board of Directors' meeting commenced in the General Manager's office situate on the 1st floor of the same building. As soon as the meeting started, a number of workers entered the room without obtaining any permission. They were led by Abdul Rehman (accused No 1) and Abdul Jalil (accused No. 2). They demanded Quarter Allowance whereupon he (C. W.) told them that it could not be acceded to during the currency of the previous agreement. He, however, told them that they could see him after the meeting was over. The workers insisted that the matter should be decided there and then to which the witness did not agree. At this threats were held out that none of them would be allowed to leave the office. He categorically stated that they threatened to "gehrao" all of them He reiterated that their spokesmen were Abdul Rehman (accused No. 1) and Abdul Jalil (accused No. 2) although they were being accompanied by others. Since there was pandemonium, the witness decided to leave and went down-stair from the first floor to the ground floor where his car was parked. The workers, however, did not allow him to enter the car. Some of the workers were directed by Abdul Rehman (accused No. 1) and Abdul Jalil accused No. 2) to stand in front of the car so as to block its way. All the workers surrounded his car and insisted for immediate acceptance of their demand of Quarter Allowance He unequivocally stated that he and other 4 Directors were "gheraoed" and as such were not in a position to leave the Factory. Meanwhile, Major-General (Retired) Sherin Dil Khan Niazi arrived there who had been invited for lunch. Seeing the situation, he thought it advisable do go upstair and wait in the office. However, a number, of workers stopped him from going onward. Sher Dad (accused No. 4) and Sher Hassan (accused No. 5) were amongst those who had pulled at his coat. Itbar Khan (accused No. 6) went to close the main gate. However, he managed to climb up with great difficulty. Later, at the arrival of the Assistant Commissioner, the "gherao" was lifted and he was allowed to leave the Factory. He added that the 6 accused who were present before the Commission were present there.

13. After the close of the evidence of the C. W. the accused reiterated that they had not "gheraoed" the Chairman and Directors etc. 7 hey produced 4 witnesses in defence namely Hukmat Khan, Tajuddin, Sher Afzal and Jabbar Khan as D. W. 1, D. W. 2, D. W. 3 and D. W. 4 respectively. Hukmat Khan (D. W. 1) admitted that there was a dispute with the Manage ment qua certain demands which the Union had raised. He also admitted that the workers had worn black badges on their arms and they had displayed banners with inscription thereon Give us Quarter Allowance . He had the hardihood to admit that the EAC, Police and the Assistant Commissioner reached there and that the Chairman and others left the Factory at about 3-30 p.m. Earlier, in examination-in-chief he admitted that the General Secretary of the Union had made a demand for "Quarter Allowance." He also conceded that he alongwith Abdul Rehman (accused No. 1), Abdul Jalil (accused No. 2), Muhammad Aslam (accused No. 3) and Seer Dad (accused No. 4) etc. had gone to see the Chairman at 12-30 p.m. in his office where the General Secretary and the President of the Union made a demand of Quarter Allowance . He added that the Chairman bad told them that he did not know anything and that he would apprise them after he had studied the matter. He categorically stated that all the 12 workers, however, insisted that some decision must be made there and then D. W. 2 (Tajuddin also admitted that 10-12 workers had gone to see the Chairman on 22nd November 1973 and that he had told them that be (Chairman) would consider the matter. Lastly, be stated that the Chairman came down stair and the workers raised the slogan "Chairman Zindabad" and demanded Quarter Allowance . Thereafter, the Chairman and others went up0air. He admitted that they remained upstair from 12-30 p.m. to 3-00 p m. In cross-examination he stated that the Assistant Commissioner had advised the workers to resume their duties adding that he was also acting as Presiding Officer, Junior Labour Court and that he would redress their grievance.

14. D. W. 3 (Sher Afzal) stated that no embargo had been placed on the entry or exit of any person. During the cross-examination he added that between 12-30 p.m. to 3.00 p m. the Police, EAC and the Assistant Commissioner arrived there. He added that the Chairman left at about 3-30 p.m. D. W. 5 (Jabbar Khan) simply stated that he left the Factory at 1-30 p.m. and as such did not know what happened thereafter.

15. Discussion,-As noted above, the case of the prosecution has been supported by all the prosecution witnesses Needless to recapitulate that the case of the prosecution was that on 22nd November 1973 the accused and at their instigation and incitement other workers "gheraoed" Major-General. Muhammad Nawaz Malik, Chairman and Directors to intimidate and coerce them to accept their demand with regard to the Quarter Allowance. The most important witness in this case is Major General Muhammad Nawaz Malik (C. W.) who has fully corroborated the statements of other prosecution witnesses. He has given a straight-forward account of the incident. There is nothing on record to justify that the prosecution witnesses or C. W. are biased or inimically disposed towards the accused. Apart from this, their evidence has not been smashed in cross -examination. Mr. Mahmood Khan (P. W. 4) who is Assistant Commissioner Mardan was able to prevail on the workers when he told them that they should bring their grievance before him in his capacity as Presiding Officer, Junior Labour Court and that he would try to redress it. It was at his assurance that the workers dispersed at 3-45 p.m

16. The occurrence as narrated by the prosecution witnesses finds support from the statement of D. W. 1 (Hukmat Khan) who clearly stated that when the Chairman told them that he would apprise them after be had studied the matter, all the 12 workers insisted that some decision must be made there and then. He also admitted that the workers had put black badges on their arms and had displayed banners with inscription thereon "Give us Quarter Allowance". Similarly, the statement of D. W. 2 (Tajuddin) also indicates that the workers only dispersed when the Assistant Commissioner advised them to resume their duties. D. W. 3 Sher Afzal) also admitted in the cross-examination that the Police, EAC and the Assistant Commissioner arrived on that day (22-11-1973) and that the Chairman was able to leave the Factory at 3-00, 4-00 p.m. Jabbar Khan (D. W. 4) did not say anything material.

17. The learned counsel for the accused could not point out any flaw or lacuna in the prosecution case. He did not refer to the defence evidence presumably because it was worthless and stereotyped. His main contention was that no specific part has been assigned to Itbar Khan (accused No. 6) by the complainant either in the complaint or in his preliminary statement recorded by the Commission on 12th December 1973, It is correct that the complainant failed to assign any specific part to Itbar Khan (accused No. 6) in the complaint or and in the preliminary statement. However, it is a matter of common knowledge that the complaint is not a detailed document. Similarly, it is not necessary to assign specific part to any of the accused All that is necessary is to indicate the participation and complicity of an individual in the offence. I accordingly brush aside the contention of the learned counsel for the accused from consideration. Needless to add that the presence of Itbar Khan (accused No. 6) has been established by unassailable evidence. Major-General Sherin Dil Khan Niazi (P. W. 3) has stated that he was stopped at the gate by Itbar Khan. Apart from this, Humayun Khan (P. W. 6) Gate Sergeant had deposed that one hour after 11-45 a.m. Itbar Khan (accused No. 6) asked him to hand over the key of the main gate and on his refusal he (Itbar Khan) closed the gate and bolted it from inside thereby placing embargo on entry or exit. The prosecution evidence conclusively shows the presence of all the accused to the "gherao". I have no reason to disbelieve the prosecution version which is reliable and aboveboard. As such I have no hesitation in holding that the prosecution has succeeded in bringing home the guilt to all accused. I, therefore, hold them guilty under section 53 of the Industrial Relation Ordinance, 1969 for having contravened the provisions of section 16(1)(d) of the said Ordinance and convict them accordingly. The question of sentence, however, requires some determination. It is clear from the evidence of the prosecution witnesses particularly of Major-General. Sherin Dil Khan Niazi (P. W. 3) that the main role was played by Abdur Rehman (accused No. 1) and Abdul Jalil (accused No. 2). The other accused have simply been following their behest. I, therefore, sentence them (Abdul Rehman accused No. 1) and (Abdul Jalil accused No. 2) to one year's R. I. together with a fine of Rs. 500 (Rs five hundred only) each; in default of payment of fine, further R. I. for three month each. The other 4 accused namely Muhammad Aslam (accused No. 3), Sher Dad (accused No. 4), Sher Hassan (accused No. 5) and Itbar Khan (accused No. 6) are sentenced to one day's imprisonment till the rising of Court together with a fine of Rs. 500 (Rs. five hundred only each; in default of payment of fine of Rs 500, R. I. for three months each.

18. Since all the 6 accused are office-bearers of the Union, I direct that they shall cease to hold the office of the Trade Union and are disqualified from holding any office in any Trade Union during the term immediately following the term in which they so cease; to hold office.

N. B.-A copy of the judgment has been made over to the convicts. They may, if no advised, file appeal against this judgment within 30 days.