NASIR ALI Versus Ch. ZULIFQAR
JUSTICE (R) SAGHEER AHMED QADRI, (CHAIRMAN).---- The appellant Nasir Ali son of Aleem-ud-Din filed a complaint under section 63 read with 65 of Industrial Relations Ordinance, 2002 mentioning the facts that the workers of Chaudhry Brothers Factory Khanpur Bagga Sher Muzaffargarh on 30.11.2008 constituted a Union by the name and style of Mazdoor Union Chaudhry Brothers Factory Khanpur Bagga Sher Muzaffargarh and the appellant Nasir Ali was elected as its president; that the office bearers of the union preferred a petition before the learned Presiding Officer, Punjab Labour Court No.9, Multan on 04.12.2008 against the respondents for alleged committing of unfair labour practice and the court on 05.12.2008 issued an injunction restraining the respondents from involving in any such like activities and also summoned them for 12.02.2009; that under the direction of Registrar of Trade Union, labour officer factories-II asked the appellant and his union to appear on 18.12.2008 in an inquiry and the said union was registered by the Registrar of trade union on 26.12.2008 and the appellant filed an application for declaring the union as Collective Bargaining Agent (CBA); that respondents on 28.12.2008 summoned the appellant in his office and pressurized him not to involve in trade union activities, otherwise to face dire-consequences; that the appellant refused to accept the said demand and he was thrown out of the gate of the mills forcibly; that he was not allowed to enter the gate without issuing any written order; that respondents got registered a fake case vide FIR No. 08/2009 under section 381, P.P.C. dated 10.01.2009 at Police Station Saddar Muzaffargarh through one Mastri Sultan Mahmood an alleged relative of the appellant/complainant; that the alleged above mentioned action on part of the respondents fell within the definition of unfair labour practice, hence prayed that respondents Chaudhry Zulifqar, Chaudhry Muhammad Anwar and Muhammad Idrees be summoned to face the trial.
2. The learned trial court vide order dated 14.01.2009 after recording the statement of the appellant/complainant at preliminary stage summoned the respondent. The learned trial court after appearance of the respondents got submitted the written reply on behalf of the respondents Nos.1 and 3 and thereafter without framing any charge recorded the statement of the appellant Nasir Ali as P.W.1 who submitted his affidavit Ex.P.1 and tendered in evidence documentary evidence Ex.P.2 to Ex.P.7 (Photo-stat copies of the documents under objection). The appellant was cross-examined by the learned counsel for the respondents but on 04.05.2012 closed the oral evidence while on 24.09.2012 got exhibited documents Ex.P.8 and Ex.P.9. Thereafter, the learned trial court did not record any defence evidence or statement of the respondents and ultimately vide order dated 17.01.2014 after hearing the parties decided the said complaint perhaps under section 249-A, Cr.P.C. and dismissed the same. Feeling aggrieved the appellant has preferred this appeal which was admitted for regular hearing by my learned Predecessor vide order dated 31.03.2014.
3. Learned counsel for the appellant contends that the impugned judgment passed by the learned trial court was illegal; that the appellant appeared as witness and he produced his affidavit Ex.P.1 and other documents Ex.P.2 to Ex.P.9 and those documents proved on the record; that learned trial court did not consider the documentary evidence available on record and dismissed the complaint by the appellant. Prayed that this appeal be allowed.
4. On the other hand learned counsel for the respondents opposed the arguments advanced by the learned counsel for the appellant on the ground that the learned trial court passed the order in accordance with law on the subject. Prayed that this appeal be dismissed.
5. 1 have heard learned counsel for the parties and perused the records.
6. If the complaint filed by the appellant is seen, its captioned reads:
If the above mentioned sections are seen, offence under Unfair labour practice is defined in Section 63 while its penalties provided under section 65(2) as imposition of fine of Rs.30000/-.
7. Section 74 of IRO, 2002 deals with the trial of offences under the ordinance which reads:
74. Trial of offences.-- Save as provided in this Ordinance, no Court other than a Labour Court or any other Court of competent jurisdiction shall try any offence punishable under this Ordinance.
Section 44 of the ordinance ibid provides the constitution of labour court and its power. Section 44 (4)(C) deals with the power of labour court for the trial of offences under said ordinance which reads as under:
44. Labour Court .---(1) A Provincial Government may, in consultation with the Chief Justice of the respective High Court, by notification in the official Gazette, establish as many Labour Courts as it shall specify in the notification the territorial limits within which or the industry or the classes of cases in respect of which, each one of them shall exercise jurisdiction under this Ordinance.
(2)
(3)
(4) A Labour Court shall---
(a)
(b)
(c) try offences under this Ordinance and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf; and
Under section 48 of the ordinance ibid appeal was provided against the judgment/ decision passed by a labour court including the decision in case of unfair labour practice/ offences committed.
8. Industrial Relations Ordinance, 2002 was repealed by the IRO, 2008 and vide section 87 repeal and savings clause was legislated. It is further necessary to mention that Labour Appellate Tribunal was constituted under IRO, 2008 and all the appeals etc pending in High Courts were transferred to concerned Tribunals accordingly.
9. It is further to be mentioned that Industrial Relations Act, 2008 was repealed after 18th amendment in constitution as labour laws become the provincial subjects. Initially Punjab Industrial Relations Ordinance, 2010 and later on Punjab Industrial Relations Act, 2010 were legislated. The provisions for constitution of labour courts and labour appellate tribunals, however, remained inact in both of the subsequent legislation as earlier were available under Industrial Relations Act, 2008.
10. It is in the above mentioned background that the instant private complaint initially filed under IRO, 2002 remained on pending in Punjab Labour Court No.09, Multan and ultimately it was decided vide impugned judgment 17.01.2014 when private complaint under section 63 read with 65 of IRO, 2002 was dismissed by the learned trial court. The appellant/ complainant as mentioned above preferred appeal before this Tribunal and it was admitted for regular hearing and the arguments were heard on behalf of both sides.
11. The appellant as earlier mentioned filed the instant complaint before the learned trial court for imposition of the penalty as allegedly offence under section 63 read with section 65 of Industrial Relations Ordinance, 2002 was committed. It was alleged that the respondents committed offence of unfair labour practice as well as violated an injunction issued by the learned trial court. The learned trial court according to the records after recording the preliminary statement of appellant/ complainant vide order dated 14.01.2009 summoned the respondents, however, said order is silent about the provision of law under which respondents were summoned either to face a criminal charge or some other proceedings under certain allegations or otherwise.
12. The respondents appeared before the learned trial court but unfortunately the learned trial court did not frame any charge rather got submitted the written reply on behalf of the respondents Nos.1 and 3 and later on recorded the statement of the appellant as PW-1 wherein he reiterated the stand mentioned in the complaint along with getting exhibited some documents. Learned counsel for the appellant closed the evidence and thereafter no further proceedings were conducted by the learned trial court either to record the statement of accused under section 342, Cr.P.C. or like provision or to allow them to lead their defence and only after hearing the arguments from both sides perhaps while relying the provision of section 249-A, Cr.P.C. dismissed the complaint.
13. As no charge was framed nor it was put to the respondents, hence in such circumstances offence cannot be tried or accused could be penalized or otherwise entitled for an acquittal. No-doubt learned trial court tried to apply section 249-A, Cr.P.C. but when no initial order was passed specifying any alleged offence committed by the respondents except mentioning section 63 read with 65 of IRO, 2002 in the complaint itself the whole of the procedure adopted by the learned trial court was illegal.
14. As right from the initial stage till conclusion the learned trial court did not specify if the proceedings were to be conducted for the imposing a penalty of offence if committed under section 63 read with 65 of Industrial Relations Ordinance, 2002 nor charge was ever framed and above all the respondents were not afforded opportunity to lead their defence, hence in these circumstances, the whole of the procedure adopted by the learned trial court was vague and seems unjustified.
15. Another question although was not raised by either of the parties to the appeal but it was raised by Tribunal itself but both of the learned counsel were unable to satisfy the court that if it was a simple appeal against the impugned judgment passed by the learned trial court or appeal against acquittal as respondents were not found guilty of commission of offence under section 63 read with 65 of Industrial Relations Ordinance, 2002. After going through all the previous and present legislation it was found that similar provisions of appeal i.e. under section 47 (3) of Industrial Relations Ordinance, 2002, section 55(3) of Industrial Relations Act, 2008, and section 47(3) of Punjab Industrial Relations Act, 2010 are available on all such legislation whereby labour appellate tribunals are granted the power to hear and decide the appeal against the orders passed by the labour courts subordinate to them within their jurisdiction. Under section 47(3) of Punjab Industrial Relations Act, 2010 it is hereby provided:
(3) The Tribunal may, on appeal, confirm, set aside, vary or modify the award, decision or sentence given or passed under section 33, section 42 or section 44 and shall exercise all the powers conferred by the Act to the Court, save as otherwise provided.
In view of the above mentioned provision of all the previous and present legislation it is hereby declared that impugned judgment dated 17.01.2014 was appealable before this Tribunal as no specific provision of appeal against acquittal are enacted under this special law.
14. In the light of above discussion as learned trial court neither framed the charge nor mentioned any section when summoning the respondents and thereafter only recorded the statement of the appellant and further no other procedure was followed, therefore, in these circumstances, the impugned order dated 17.01.2014 passed by the learned trial court is not sustainable in the eye of law, thus it is hereby set-aside and matter is remanded to the learned trial court with the direction to start with the proceedings from initial stage and after hearing both sides if feel it appropriate to frame the charge against the respondents proceed de-novo with the trial.
15. It is further clarified that the learned trial court is at liberty that after hearing the parties if any offence prima facie is made-out to frame the charge otherwise it may decide the complaint keeping in view the principles enshrined under section 249-A, Cr.P.C. The learned trial court is directed to conclude the proceedings of this complaint within one month of receipt of the file of the case.
16. The parties are directed to appear before the learned trial court on 19.04.2017. File be consigned to the records room after due completion. The trial court's records be sent back immediately.
MQ/7/PLT Appeal disposed of.