1985 PLP 257 (SCMR)

8. The learned counsel for the appellant attempted mainly to meet this objection and to show that the Labour Court was, in fact, inferior and subordinate to the High Court and, as such, power under section 561-A, Cr.P.C. be exercised to quash the proceedings pending could before it. He referred to section 35 of the Industrial Relations Ordinance, to submit that the Labour Court was. empowered to try offences, inter alia, under the Standing Orders Ordinance. The relevant portion of this section, i.e. section 35(5) reads as follows:- 35(5) (c) 35. (1) .. (2) ............... (3) ............... (4) ............... (5) 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." He then read out the following portions of section 36 of the I.R.O. to urge that the Presiding Officer of the Labour Court had been constituted as a Section 30 Magistrate and was to try criminal cases as such:- S.36(1) and (3) "

36. Procedure and powers of Labour Court.- (1)Subject to the provisions of this Ordinance, while trying an offence, a Labour Court shall follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898. (2)............................. (3) A Labour Court shall, for the purpose of trying an offence under this Ordinance, or the West Pakistan Indus trial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P. Ordinance VI of 1968), has the same powers as are vested in the Court of a Magistrate of the first class specially empowered under section 30 of the Code of Criminal Procedure, 1898 (Act V of 1898)." He referred to section 6 of the Criminal Procedure Code to show that there shall be the following classes of subordinate criminal Courts in Pakistan:- (i) Court of Sessions; (ii) Magistrate of the first class; (iii) Magistrate of the 2nd class; and (iv) Magistrate of the 3rd class." He then pointed out that section 14 of the Cr.P.C., authorises the Provincial Government to appoint Special Magistrate in respect of particular class of cases and urged that the Presiding Officer of the Labour Court was, in fact, a Special Magistrate under the Code of Criminal Procedure appointed to try a special class of cases referred to in section 35 of the I.R.O. After laying this foundation he argued that it was evident that: (i) a Labour Court exercising the powers under subsection (3) of section 36 of the I.R.O. is a Magistrate with powers under section 30, Cr.P.C ..; (ii) that Labour Court, while acting as a Magistrate must be deemed to be a Special Magistrate appointed under section 14 read with section 6, Cr. P. C . , and (iii) that, therefore, while acting as a Magistrate the Presiding Officer of a Labour Court is, in fact, a criminal Court subordinate to the High Court.

9. The learned Additional-Advocate General, appearing for the State, confined himself to reiterating the reasons recorded by the High Court in the impugned judgment for arriving at its conclusion. '

10. We have given our careful consideration to the question involved in this case. We notice that the High Court has based its decision on the question issue on the concept 'subordinations' i.e. on the assumption that the High Court can interfere in exercise of its jurisdiction under section 561-A , Cr. P . C . , only in such criminal proceedings as are pending before a criminal Court inferior or subordinate to it. With utmost respect, this was not the correct approach to the question.

11. The matter, in our view, is not to be adjudged on the basis as to whether or- not a Labour Court is subordinate to the High Court or whether an appeal from its decision lies to the High Court or some other forum. What is to be determined is whether the provisions of section 561-A, Cr.P.C. apply to criminal proceedings pending before the Presiding Officer of a Labour Court. If section 561-A, Cr.P.C. applies then the High Court can. certainly exercise its jurisdiction under the said section. It may be mentioned that although section 36 of the I.R.O. provides that for the purpose of trying offences under the Standing Orders Ordinance, a Labour Court has the same powers of Magistrate 1st Class specially empowered under section 30, Cr.P.C., yet there is nothing to indicate that he is appointed as a 'Special Magistrate' under section 14 of the Criminal Procedure Code. It cannot, therefore, be said that he was functioning as a 'Magistrate' envisaged by section 6 of the Cr.P.C. and was thus subordinate to the High Court. In our opinion the relevant provision for the purpose of this case is subsection of section 5 of the Cr.P.C. For facility of reference the whole oft section 5 may be reproduced-here:- Section 5, Cr.P.C. "Trial of offences under Penal Code:-- (1)AII offences under ,the Pakistan .Penal ode shall-; be investigated, inquired into,' tried, and otherwise dealt, with according to the provisions hereinafter contained. (2) Trial of offences against other laws, tried, arid otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquired into, trying or otherwise dealing with such offences." This section enumerates the (criminal) cases to which the provisions of the Code of Criminal Procedure shall apply Section 5(1) lays down that these shall apply to all offences under the Pakistan Penal Code which shall be investigated, inquired into, tried, and. otherwise dealt' with according to the provisions thereof. Subsection (2) of the said section relates to application of the provisions of the Code of Criminal 1'roce.d.ure, to offences against other laws, which would include offences created by .the provisions of section 2 of the Schedule made under- section.2(g) of West Pakistan Standing Orders Ordinance, 1968. It lays down that subject to any enactment to the contrary), all offences under any other law shall be investigated; inquired into, tried or otherwise dealt, with, according to-the provisions of the Cr.P.C. It lays down that. To the extent it is specifically excluded by the special enactment, cases. under 'other laws' shall also be investi gated, tried or otherwise dealt with, in the manner provided by the provisions of the Cr.P.C.

12. According to the provisions of subsection (1) of section 36 of the I.R.O. the mode of trial of cases triable by the Labour Court shall be as nearly as possible the same as prescribed in the `code of Criminal Procedure. Therefore, notwithstanding the fact that the case before it is such which would ordinarily be tried by the procedure provide, for example, in Chapter XXII-A of the Cr.P.C. the Labour Court shall try it only according to the summary, procedure prescribed in Chapter XX of the Cr.P.C. But' it will be noticed that there is mention in the I.R.O. as to the manner in which-cases triable by a Labour Court, shall be investigated, inquired into or "otherwise dealt with" In other words; the provisions of the Cr.P.C. with be applicable for these purposes.

13. The question as to whether or not any proceedings,- pending trial before a Court should be quashed (under section

561A,' Cr.P.C.) neither relates to investigation nor 'inquiry into' or 'trial' of that" case, but would be covered by the expression "otherwise dealt' with". Therefore, the provisions of section 561-A, Cr.P.C. would be applicable to a criminal case being tried by a Labour Court under section, 35/38 of the I.R.O., notwithstanding the fact that the said Court: is not subordinate to the High Court and that an appeal from its., decision does not lie to the High Court but to -the Labour- Appellate: Tribunal under section 37 of the I.R.O.

14. The next question to be considered is: whether or not the High Court should have refrained from exercising its power, under section 561-A, Cr.P.C. in view of the provisions of section 24-A. The last mentioned section empowers the trial Magistrate to acquit the accused at any stage of the case, after hearing the prosecutor and the accused, if it considers that no case is made out against the accused or that there is no probability of the accused being convicted under the offence alleged against him. This power is, indeed, very similar to the power conferred on the High Court by section 561-A, Cr.P.C. inter alia "to prevent the abuse of the process of any Court". While considering the nature of the powers of the trial Courts under section 249-A, Cr.P.C. It was observed by Mr. Justice Rustam S. Sidhwa, in the case of Din Muhammad v. Muhammad Sharif 1979 P Cr. L J 59 that a special Court, whether civil or criminal, in the absence of any provisions of the procedural law is deemed to possess inherent power by the very fact of its being a Court of law and section 249-A, Cr. P. C ., is "merely declaratory of the said principle". We are respectfully inclined to agree with this view. It follows that the provisions of section 249-A, Cr.P.C. do not interfere with the inherent jurisdiction of the High Court, but on the other hand, as held in Butani Papo Udharam v. State P L D 1980 Kar. 49, the powers of the High Court and the Special Court, are co-extensive and concurrent in this respect. No doubt, ordinarily, the trial Court should be approached in the first instance, as was done in the present case. ,

15. It may be mentioned that there are some decisions of the High Court wherein it has been held, on the basis of Khushi Muhammad and others v. State 1979 S C M R 94 that the High Court can no longer interfere under section 561-A, Cr.P.C to quash criminal proceedings pending trial, because similar powers have now been conferred on trial Court, by sections 249-A, Cr.P.C. and 265-K, Cr.P.C. This view is, however, based on a misinterpretation of the above-noted judgment of this Court. Although in that case this Court dismissed the petition for leave to appeal against the refusal by the High Court to exercise its jurisdiction under section 561-A , Cr. P. C . , but as observed by this Court in Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 S C M R 775 the main reason for dismissing the petition was that on the facts as the stood at the time when the matter was heard by it, the High Court was justified in re using to quash the proceedings. This is evident from the following observation in the cage of Mushi Muhammad:" "We further observe that the order of the High Court was passed on 26-8-1978 and on the material then available on the record no objection could legitimately be taken to the order of the High Court dismissing the quashment petition. It is only on the 20th September, 1978, after the statement of Abdul Ghani (P.W.5) was recorded, that the. argument that there is no likelihood of the petitioners being convicted and their continuing prosecution would be an abuse of the process of the Court has become available. The order of the High Court cannot, therefore, be said to be erroneous and liable to be set aside in the present proceedings."

16. As a result of the above discussion we hold; that provisions of section 561-A, Cr.P.C. apply to the proceedings pending before any Court, whether subordinate to the High Court or not, unless the offence 1 being tried is an offence under any law other than the Pakistan Penal Code and the power has been specifically taken away by any enactment relating to the said (special) law; and that the powers 'of the trial Court under sections 249-A , Cr.P.C. and 265-K, Cr.P.C. are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C., and both can be resorted to. It would, of course, be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining, in appropriate cases, an application under section 561-A, C r. P . C . , directly.

17. The legal questions having been resolved, we now proceed to decide the case in hand on merits. As already observed in the narration of facts, the appellant (Mian Munir Ahmad) is the Managing Director of the Factory in question. He lives in Karachi and works at his head office situated on Wallace Road, Off I.I. Chundrigar Road, Karachi, while the Factory where the product is manufactured, is situated at Kotri in District Dadu. The affairs of the Factory are looked after by the Factory Manager and are under his direct supervision and control. Mr. Nadir Khan, Assistant Director of the Labour Department, at Hyderabad, visited and inspected the Factory at Kotri on 25-9-1980. Thereafter, on 4-10-1980 he issued a show-cause notice (attached at page 335 of the Paper Book) stating various contraventions of the Labour Laws committed by the appellant The relevant contravention, mentioned in para. 4 of the said show-cause notice is in the following words:- "that the workers of the contractor have not been provided with attendance ticket, as required under section 2(g) of the Standing Orders Ordinance, 1968." (Note:- The underlining is ours). It may be mentioned that according to section 2 of the Schedule under section 2(g) of the West Pakistan Standing Orders Ordinance, 1968, a factory owner is required to issue an attendance ticket to every worker, employed by it and an omission to do is punishable. The Company, of course denied these allegations, whereupon Nadir Khan filed 13 separate complaints, each relating to one labourer, against the appellant by name, in his capacity as "employer". Being a short one it might be useful to reproduce one of the complaints (all 13 of which are identical), in extenso, for facility of reference:- "Case No.2/81. In the Court of Presiding Officer, Labour Court No. VI Hyderabad. PROSECUTION UNDER THE W.P.S. ORDERS ORDINANCE, 1968 Complainant: Nadir Khan Yousafzai, Assistant Director, Labour (Inspection), Hyderabad. Accused: Mian Munir Ahmad Occupier. It is submitted as under:- That the accused is the Employer of the factory known as Fazal and Sons Limited S.I.T.E. Kotri, District Dadu duly covered by the above Act. That the Factory mentioned above was inspected by the undersigned on 25-9-1980 and the following serious breaches of the Act and Rules were discovered:- The worker named Ghulam Bux son of Roshan Din working as Loader on Contract was not given any ticket under Standing Order. That the accused named above have thereby committed an offence under section 2 of Schedule 2(g) of the W.P. S.O Ordinance, 1968 punishable under section 7(2) and (3) of the said Ordinance. It is, therefore, prayed that accused may please be deal with according to law. Witness: Sd/- Dr. Mohan Lal Dhirwahi (Nadir Khan Yousafzai; Medical Inspector Inspector of Factories of Factories, and Assistant Director; Hyderabad. Labour, Hyderabad. " The appellant took up the position that the contract of loading and unloading during the "current season" had been given to a contractor who employed his own labour.

17. It would be noticed that in paragraph 3 of the complaint the worker in question is described as working as "Loader on Contract", Now, this is a very ingenious alteration in the wording. It would be recalled that according to paragraph 4 of the show-cause notice issued by Nadir Khan, after inspecting the Factory, the contravention alleged was that "the workers of the contractor" had not been issued attendance ticket . . . The appellant took up the position that during the relevant season the contract of the work of loading and unloading had beer given by the Company to one Abdul Hamid Contractor, who had employed his own labour for that purpose and that the workers mentioned in the notices/complaints had neither been employed by the Factory nor were they on the pay roll of the Factory. The management of the Factory was not even aware of the number of the workers employed by the contractor or about the terms and conditions of their appointment or service. As such the Factory Management was not required to issue them any attendance tickets under the relevant law, i.e. section 2 o1 Schedule 2(g) of the W.P. Standing Orders Ordinance. Having realized this flaw in the show-cause notice. Nadir Khan, Assistant Director, who appears to have been bent upon harassing the appellant, made a slight alteration in the wording of the allegation, resulting in a significant change in its meaning and filed the complaints. He probably thought that this change in the wording would be sufficient to camouflage the actual position and that by using the word "contract" in the complaint he could easily explain away the expression "workers of the contractor" used by him in paragraph 4 of the show-cause notice. He has, however, not been able to hoodwink anyone and it is quite clear that in the show-cause notice the only allegation with respect to non-issuance of the attendance tickets was that the same had not been issued by the Factory to the "workers of the contractor".

18. It is an admitted position that an employer is required to issue such tickets, only to the persons employed by him as workers. This stands to reason because a factory owner may need, for example, to erect an additional structure within the Factory premises and for this purpose he may employ a building contractor on the terms settled with him. Naturally the contractor would employ his own labour who would obviously not be the employees of the Factory. Nor would, in such a case, the Factory Management be responsible for them in any manner and would not be required to issue attendance tickets to such workers under section 2 of Schedule 2(g) of the Standing Orders Ordinance.

19. Non-issuance of Attendance Tickets to the 13 workers in question is the only charge being pressed against the appellant who is required to come all the way from Karachi and attend the Labour Court at Hyderabad on each date of hearing. It is, however, crystal clear that since the allegation in the show-cause notice, which is prior in time as compared to the complaint, relates to the workers of the contractor, i.e., the workers employed by the Contractor, the case against the appellant must, ultimately, fail. It is, therefore, regrettable that the said Nadir Khan should have been permitted to harass the' appellant on an allegation of this nature. It is well known that the Factory Inspectors have vast powers which some of them do not hesitate to misuse.

20. As a result of the above' discussion we allow all the 13 appeals and quash the criminal proceedings pending against the appellant before the Labour Court VI--at Hyderabad under section 2 of Schedule 2(g) of the Standing Orders Ordinance.

21. It will be open to the appellant to seek his remedy against Nadir Khan, Assistant Director before the appropriate criminal or civil Court, if so advised. M.Z.M. Proceedings quashed.