1990 PLP 609 (PLC)

Date of hearing: 16th May, 1989. These 50 revision applications are directed against the orders of the learned Presiding Officer, Sind Labour Court No. VI at Hyderabad, dated 1‑2‑1989, whereby he dismissed for non‑prosecution 50 complaints filed by the applicant against the same respondent by separate orders on each complaint on the ground that the complainant had remained absent without intimation.

2. I have heard the applicant/complainant Mr. Abdul Sattar Daudpota, Assistant Director Labour and Mr. Abdul Ghani Khan counsel for the respondent.

3. The facts appear to be that the respondent owns a factory wherein he employs several workmen. He is alleged to have committed violation of Standing Order 2‑A in respect of the workmen, therefore, the complainant tiled separate complaints against the respondent in respect of 50 workmen under section 7(2) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. the learned Presiding Officer issued process against the respondent and after framing charge, the cases proceeded against the respondent. The complainant had been examined in all the cases and the cases were fixed for evidence of the remaining 2 witnesses. On the date of hearing viz. 1‑2‑1989, neither the complainant appeared nor the witnesses appeared. Consequently the learned‑Presiding Officer passed the impugned orders in each of the 50 cases. As points involved in all the cases are similar and parties are same, all the revision applications will be disposed of by this single decision.

4. The impugned orders have been passed by the learned trial Court in exercise of powers under section 247, Cr.P.C. which reads as under:‑‑ "If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reasons he thinks, proper to adjourn the hearing of the case to some other day: Provided that, where the complainant is a public servant and his personal attendance, is not required, the Magistrate may dispense with his attendance, and proceed with the case. Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non -compoundable:"

5. It would be seen that under the second proviso, the learned trial Court could not exercise the powers of dismissal of complaints if offence was not compoundable. It may be pointed that in the IInd Schedule to the Criminal Procedure Code all the offences against other Laws are shown to be non- compoundable. The offence in question was not under Penal Code but would be covered under the category of the offences against other laws and would; therefore, be non‑compoundable unless under some other law it is made compoundable.

6. Mr. Abdul Ghani Khan, has contended that under section 36(5) of the Industrial Relations Ordinance, 1969, if the parties to a case at any time before a final order is passed by the Labour Court, satisfy the Labour Court that the matter has been resolved by them amicably and that there are sufficient grounds for withdrawing the case, it may allow such withdrawal.

7. Word `resolve' is defined in Cassell's English Dictionary amongst others to mean‑‑"to convert a discord into concord; to make up one's mind, to decide, to determine upon, to pass a resolution etc." In other words under this subsection (5) if the parties compromise or resolve the differences, they can move the trial Court before the final order is passed for withdrawing the case and the Court may allow the withdrawal. The powers of the trial of the criminal offence are vested in the Labour Court under section 36(3) of the I.R.O. 1969, and under the same section under subsection (5) the provision with regard to withdrawal, in case the parties resolve the differences, is provided. This being Special Law it would override the provision of general law viz., the Criminal Procedure Code and the offence under the Standing Orders Ordinance, 1968 which is triable under the Industrial Relations Ordinance, 1969, would be compoundable irrespective of the fact that under IInd Schedule to the Criminal Procedure Code it is shown to be non‑compoundable. In view of the above second proviso to section 247, Cr. P.C. would also not bar the trial Court from exercising this power, under section 247 Cr.P.C. if it considers it fit to exercise such power.

8. On enquiry from the complainant it appears that the complaints were submitted in May, 1987 and the evidence of the complainant was recorded on 4‑5‑1988. The remaining 2 witnesses were also the officers of the Labour, Department posted at Hyderabad. The cases were dismissed on 1‑2‑1989 viz., after more than 1‑1/2 years after institution of the cases. The summons cases are to be expeditiously disposed of. Whatever may be the reasons the prosecution can also not be considered to be free from contributing to this delay. It would have been more proper, if the learned trial Judge had proceeded to dispose of the cases on merits by closing the side of the complainant because of his failure to produce the witnesses as the complainant had been examined. However, legally speaking his order does not suffer from any illegality or infirmity to call for any interference by this Tribunal in the exercise of its revisional jurisdiction under section 38(3‑a), of I.R.O. 1969. It would also serve as an eye opener for the Department to be more vigilant in future to proceed with their cases expeditiously. The respondent had already undergone sufficient punishment by being dragged to the Court for more than 1‑1/2 years. With these observations, these 50 revisional applications are dismissed. A.E./1444/Lb. S Revisions dismissed.