1987 PLP 230 (PLC)

REASONS:

1. Complainant has examined Niaz Muhammad who is the General Secretary of Firdous Textile Mills and also produced the order of the Court, accused Asrar Hussain was examined in the Court and explained the circumstances appearing against him under section 342 of the Criminal Procedure Code. He gave the statement admitting the allegation that he was the notified Manager under the Factory Act. It is correct that Mill was closed on 4-12-1985 and 7-12-1985 and the Management did not deposit the legal dues, in other words he admitted the charge and gave the following explanation which is recorded as follows: When the application was moved in this Court for the closure I told the management that I am against the closure of the Mill. They forced me to seek the permission for the closure of the Mills. I told Mr. Ehsan Ellahi and Sohail Ellahi, Managing Director and Deputy Director to deposit the dues in the Court and follow the decision of the Court. It was the consent order. The management told me that they are not in a position to deposit the dues and make the payment due to financial crisis. I, thereafter, left the mills under protest. They closed the mills on 4-12-1985. Mr. Asrar Hussain also has examined in his defence two witnesses Muhammad Sarwar and Khalil Khan. Muhammad Sarwar has stated that: He was working as a Cashier in Firdous Textile Mills. He knew Asrar Ahmad. He was General Manager. When the Court had given the decision, Asrar Ahmad had told Ehsan Ellahi and Sohail Ellahi to make the payment of wages in accordance with the Court's decision. They did not follow the Court's decision and expressed financial difficulty. Thereafter, Asrar Ahmad left the job under protest. Another witness was Khalil Khan who has stated that: He was canteen contractor of Firdous Textile Mills. Asrar Ahmad was General Manager. Management had filed an application under section 11-A of the Standing Orders Ordinance for the closure of the establishment. Asrar Ahmad had told the employer to pay the wages immediately; when the wages were not paid he will leave the job. According to Muhammad Sarwar Asrar Hussain had left the job in the month of October 1985 as a protest.

2. Following are the points for determination. (1) Whether Asrar Hussain committed contravention of section 54 of the I.R.O?

3. So far as the position of Asrar Hussain is concerned, he has admitted himself that he was the notified Manager under the Factory Act.

4. Section 2 of the I.R.O. also defines the employer. Employer as defined in relation to an establishment, any person or body of persons were incorporated or' not heir which employs a workman in the establishment under contract of employment and include heir successor or assign of such persons or body as aforesaid. Employer is further defined means any person responsible for the management, supervision and control of the establishment. Employer as defined in the Standing Orders Ordinance means the owner of an Industrial or Commercial Establishment to which this Ordinance for the time being applies and includes in a factory, any person named under clause (a) of subsection (1) of section 9 of the Factory Act as manager of the factory.

5. So there remains, no doubt, that Asrar Hussain who was the notified Manager also came within the definition of the employer being A the notified Manager in connection with the affairs of the factory. Standing Order 20 further defines that employer of the Industrial and the Commercial Establishment shall personally be responsible for the proper and faithful observance of the Standing Orders wheth6r or not the workman of such establishment are employed through contractors.

6. In other words the responsibility of the employer may be personally for the faithful observance of the Standing Orders, but at the same time the liability of the Manager and the employer under the I.R.O. is common in relation to any act done of which the Court has given the decision for its implementation.

7. Mr. Asrar Ahmad has admitted very frankly before this Court that he was the Manager under the Factory Act. He had never disobeyed the Court's order but told the employer of Firdous Textile Mills to make the payment in accordance with the Court's decision. The Court has also seen the order passed in the application under Standing Order 11-A where the Advocate had given the consent to the terms of the order that the same shall be binding on the management. Court has also discussed this aspect in its order of 28-1-1986 because the contention of one party was that it was a conditional order and, therefore, he was not bound. The Court disposed of this objection that it was a consent order. The Labour Directorate has also confirmed about the closing of the mill which was also contrary to the version of the management that mill is still working.

8. Apart from the working of the mill or the mill was closed the question arises in this Court is whether for the purpose of criminal liability in the Court had decided the matter in the presence of the parties to which other party consented, whether it bound the management or its officials to carry out the Court's decision. Section 54 is a proviso for enforcing the criminal liability where it has provided that whoever commit breach of a decision or award or settlement under this Ordinance, shall be punished for the first offence with imprisonment for a term which may extend to one year or with fine which may extend to 500 rupees or both.

9. Mr. Asrar Hussain has contended in his course of arguments being unrepresented that so for the liability of criminal nature is concerned he was not liable. It was the actual employer who had to make the payment in the Court. He has also further pleaded his case that on his own part he had shown the bona fide intention by telling the management to follow the Court's decision. Mr. Asrar Hussain has not produced any stay order against the Order of li-A of the Standing Orders Ordinance 1968 nor the management has produced any witness in defence on behalf of Asrar Hussain to show that there was stay.

10. Mr. Asrar Hussain has also raised the contention of legal nature that this was conditional order under Standing Order 11-A and, therefore, no criminal liability shall be conceived. The Court had also discussed this aspect in the application of Firdous Textile Mills Limited v. Firdous Textile Union which was contested. The order was passed on 16-3-1986 and the objection was disposed of as being distinguishable from unreported decision which was produced on the point.

11. Once the decision was given it has great sanctity. The accused or his employer who had consented to the application under Standing Order 11-A cannot subvert the course of justice by disobeying the Court's decision. In view of the evidence, therefore, if Mr. Asrar Hussain has admitted the contraventation of section 54 of the Industrial Relations Ordinance, his criminal liability is the same as that of the employer because he is the notified Manager under the Factory Act. Employer is not only defined the, owner but also includes the person named as the Manager of the Factory under section 9 of the Factory Act, but also, a person responsible to the owner for the supervision and control of such establishment. I hold Mr. Asrar Hussain guilty of the contravention of section 54 of the Industrial Relations Ordinance and award him conviction. So far as the punishment is concerned, the Court has taken lenient view for the reason that Mr. Asrar Hussain has assured the Court that he informed the employers to implement the decision by depositing the amount in the Court. But his criminal liability being the same as that of employer and in full knowledge of the Court decision, he is awarded sentence or the fine of Rs.500 which is maximum, which otherwise can be awarded fine and imprisonment. If this is his first offence, the awarding of fine in the circumstances explained will meet the ends of justice, but this is a continuing offence till the amount is deposited in the Court. He will deposit Rs.500 fine in the Court and in default, if fine is not paid, he shall serve the simple imprisonment of 5 days. The fact that he has left the job, cannot exonerate his criminal liability of the relevant time. A.A./850/Lb Order accordingly.