1982 PLP 880 (PLC(CS))

Respondent in person. Date of hearing: 11th February, 1982. The record and proceedings in the complaint case filed by Mian Karam Elahi against respondents Zafar Associates and

1. A. Zafar under section 55 read with section 54 (a) and (b) and section 62, I.R.O., was called for in the exercise of the suo motu powers of revision of this; Tribunal for the purposes of examining the propriety, legality and correctness of proceedings taken upon they said complaint by the learned Fourth Labour Court and the orders passed by it, in view of the decision of this Tribunal in the case of Abdul Hadi Fareed v. Muhammad Irshad (1980 P L C 113),

2. The facts leading to the complaint filed by Mian Karam Elahi against respondent War Associates and I. A. Zafar, shortly stated, are that Mian Karam Elahi, who was employed by Zafar Associates as a Driver, was dismissed from service with effect from 7th October, 1974. He challenged the orders of his dismissal before the learned Fourth Junior Labour Court, which set aside the orders of his dismissal and directed that he be re-instated in service, but at the same time gave an option to Zafar Associates to hold fresh enquiry against workman, Mian Karam Elahi, in accordance with the provisions of Standing Order 15(4). Zafar Associates challenged the decision of the learned Junior Labour Court in a Constitutional Petition filed before the High Court but the said Constitutional Petition was dismissed for default on 20th August, 1978. It appears that no fresh enquiry was held against respondent Mian Karam Elahi and as his grievance was that he had neither been re-instated in service nor paid back benefits in accordance with the directions of the learned Junior Labour Court, he filed an application under section 25-A(8), I.R.O., before the learned First Labour Court against the Proprietor and General Manager of Zafar Associates. By its decision, dated 27th April, 1980, the learned First Labour Court convicted both the accused under section 25-A(8), I.R.O., and sentenced each of them to pay a fine of Rs.

500. Qn appeal, this Tribunal, by its judgment given on 17th September, 1980, set aside the conviction and sentence of the aforesaid two accused on the grounds, firstly, that the trial of accused I. A. Zafar was invalid since the proceedings were held behind his back, in contravention of law, and secondly, that since section 36-B, I.R.O., had been repealed by Ordinance XXVI of 1975, and all that was saved by the said Ordinance were appeals against decisions of the Junior Labour Courts pending -with the Labour Courts, both the accused, i.e. the Proprietor as well as the General Manager of Zafar Associates, could not be convicted under section 36-E; I.R.O. Notwithstanding this judgment, the respondent, Mian Karam Elahi, filed yet another complaint, this time under section 55 read with section 54(a) and (b) and section 62, I.R.O_ against Zafar Associates and I. A. Zafar: The learned Fifth Labour Court, b: fore which the complaint was filed, ordered P.E. to be held after recording the statement of respondent, Mien Karam Elahi the complainant in this case. It appears that there after the case was transferred alongwith some other cases to the learned Fourth Labour Court. No further proceedings in the P.E. appear to have been taken or any further evidence recorded by the learned Fourth Labour Court. However, by its order, dated 12th November, 1981, the learned Fourth Labour Court took cognizance of the case and issued processes against the respondents, Zafar Associates. and I. A. Zafar.

3. I have heard Mr. A. Hafiz, Advocate, who appeared for respon dents Zafar Associates and I. A. Zafar, and Mian Karam Elahi, who was unrepresented and appeared in person.

4. In the appeal against the conviction of

1. A. Zafar and the General Manager, Zafar Associates, upon the earlier complaint of respondent Karam Elahi, this Tribunal, while holding that after the repeal of section 36-E, I.R.O., by Ordinance XXVI of 1975 no conviction could be had under the said section, observed as follows:- It was finally contended by Mr. A. Hafeez that the appellants could not have been convicted under subsection (8)-of section 25-A. I.R.O. inasmuch as said subsection contemplates no-n-compliance with the original orders of the learned Labour Court or the appellate orders of this Tribunal but not infringement of orders of a Junior Labour Court or the appellate orders of the learned Labour Court, which were made punishable under section 36-E, I.R.O. Elaborating his arguments, the learned counsel submitted that since section 36-E, I.R.O., was repealed by Ordinance XXVI of 1975, and as all that was saved by the said Ordinance, were appeals against decisions of the Junior Labour Courts pending with the Labour Courts, the appellants could not have been convicted even under section 36-E, I.R.O., since the penal liability under that section was not saved by the repealing Ordinance nor could it be deemed to have been saved under section 6 of the 'i` General Clauses Act, 1897. This point has been elaborately dis cussed by this Tribunal in the case of Abdul Hadi Fareed v. Muhammad Irshad (1980 P L C 1.13) and it was pointed out in that case that what was saved by the repealing Ordinance No. XXVI of 1975, were only proceedings pending before the Junior Labour Courts and not the liabilities under section 36-E, I.R.0. in respect of which no proceedings had yet been taken. In the instant case, admittedly proceedings against the appellants were taken much after the repeal of section 36-E."

5. Respondent Mian Karam Elahi appears to have attempted to get over the above decision by filing his complaint under sections 54, 55 and 62,

1. R. O. These sections were on the statute book from the very commencement of the

1. R. O. However, when the provision for Junior Labour Courts was made in the I. R. O., section 36-E was specifically added to the I. R. O., by Ordinance XLVIII of 1972 which was replaced by Act XIX of 1973 providing for a penalty for failing to give effect or to comply with the decision of the Junior Labour Courts. The addition of section 36-E to the

1. R. O. seems to indicate that a new offence was being created for which a separate penalty was being provided under the law. The intention of the Legislature, thus, appears to be that either the infringe ment of or non-compliance with the decisions of Junior Labour Courts was not covered by the penalties provided in sections 54, 55 and 62 and other sections of the

1. R. O., or that it considered that a separate provi sion in this behalf be made as it was not considered expedient that they should be dealt with under the existing provisions, even if they could possibly be stretched to cover cases of non-compliance with the orders of the Junior Labour Courts. This being the position, the repeal of section 36-E,

1. R. O., by Ordinance XXVI of 1975 did not entitle respondent Mian Karam Elahi to invoke the provisions of sections 54, 55 and 62, I. R. O., as section 6 of the General Clauses Act specifically provides that the repeal of an enactment or part of an enactment would not revive anything which was in force at the time of the repeal.

6. There is, however, another ground for holding that the trial of respondent Zafar Associates and

1. A. Zafar is contrary to law and thus, invalid. Section 403, Cr. P. C., bars not only a second trial for the same offence but also a second trial on the same facts for any other offence. In the instant case, the respondents were admittedly tried on the' same facts for an offence under section 25-A (8), I. R. O., and were, acquitted by this Tribunal. They could not, therefore, be tried on the same facts for a different offence. It was pointed out by a Division Bench of the Karachi High Court (bf -which I was a member) in the case of Hoot Khan and six others v. N. I. R. C., Islamabad (P L D 1977 Kar. 145) that subsection (1) of section 403, Cr. P. C. not only bars subsequent trial of a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for the same offence, but further bars his trial on the same facts for any other offence for which a different charge from the one made against him might have been framed under section 236, or for which he might have been convicted under section 237.

7. On either view of the matter, I am of the view that the pro ceedings taken by the learned Fourth Labour Court against the respon dents, Zafar Associates and I. A. Zafar, suffer from illegality and there fore, are without jurisdiction. 1 would, accordingly, quash the said decision in the exercise of the suo motu powers of revision vested in this B Tribunal. It will, of course, be open to respondent Mian Karam Elahi to initiate proceedings under section 51, I. R. O., or even to approach the Payment of Wages authority in respect of any claim for wages which he might have against Zafar Associates.