1996 PLP 552 (PLC)

‑‑‑‑Ss, 53, 8‑A, 36 & 38‑‑‑‑Criminal Procedure Code (V of 1898), S. 30‑‑ Complaint against employer for his act of unfair labour practice on account of dismissal of employees of the establishment‑‑‑Employer's defence against such complaint that union of employees having not been registered and complaint having been filed on behalf of, office‑bearer and signed only by one of the complainants, was not a properly filed complaint, and thus was not warranted‑‑ Complaint means allegations made orally or in writing to Magistrate with a view to taking action under Criminal Procedure Code that some person whether known or unknown, had committed offence‑‑‑Complaint, thus, need not be in writing and signed by all those shown as complainants‑‑‑Complaint filed by one of the' complainants signed by him/her fulfilled requirements of complaint as defined. in Criminal Procedure Code, 1898, and could be made basis for prosecution‑‑‑Labour Court was not justified to throw out such complaint without any' proceedings‑‑‑Names of office‑bearers having been notified to Registrar, Trade Unions, provisions of Industrial Relations Ordinance, 1969 could be invoked by office-bearers when their application before Registrar was pending‑‑‑Complaint relating to unfair labour practice being competent should not have been thrown out by Labour Court‑‑‑Case was remanded to Labour Court for proceeding in the matter afresh in accordance with law; Syed Ghazi Shah for Petitioners. Bashir Ahmed for Respondent. This revision under section 38(3‑a) of the Industrial ‑ Relations Ordinance, 1969 henceforth referred as the Ordinance has been moved to impugn the legality of the order of the learned Labour Court dated 16‑2‑1992 whereby while accepting the preliminary objection raised by the respondent, the complaint filed by the petitioners under section 8‑A of the Ordinance was dismissed without recording the evidence. The factual background of the controversy between the parties is that the petitioners ‑complainants were employed as Assembly Workers in the establishment of the respondent which is a limited registered factory under the Factories Act, 1934. On 19‑2‑1992 the petitioners submitted the requisite documents for registration of the trade union which they had formed in the factory and the next day i.e. on 20‑2‑1992 the names of the office‑bearers were also intimated to the respondent. The respondent who was the Chairman of the establishment was averse to the trade union activities and as a retaliation he dismissed all the office‑bearers on 23‑2‑1992. The petitioners being the office bearers of the union filed a complaint under section 8‑A read with section 53 of the Ordinance before the Labour Court to punish the respondent being the Chairman of the Establishment for breach of the provisions of section 8‑A of the Ordinance. The respondent opposed the complaint and in his written statement took preliminary objection to the maintainability of the complaint. These objections in brief were that the complaint was filed by complainant No.3 Tohida Bashir on her own behalf and on behalf of four others ‑ as General Secretary, Workers' Union which could not be done under the labour law. Secondly, that the union had not so far been registered and, therefore, the office bearers had not assumed the status of the office‑bearers of the registered trade union. Thirdly, that the accused‑respondent was neither Director nor the Chairman of the factory. These objections prevailed with the learned Labour Court who passed the impugned order dismissing the complaint as not competent. The finding of the Labour Court that the complaint was filed by. Tohida Bashir and four others but since the other four had not signed it and as such it was not maintainable was not legally correct. It is to be noted that the complaint has not been defined in the Ordinance for section 53 of the Ordinance under which grievance regarding violation of the provision of section 8‑A of the Ordinance is to be brought to the notice of the Labour Court makes any mention of the complaint. Section 36 of the Ordinance read as a whole makes the provisions of Cr.. P.C. applicable and the Labour Court has been invested with powers of a Magistrate First Class exercising additional powers under section 30 of the Code of Criminal Procedure. The complaint has been defined in the Cr. P.C. as "complaint" means the allegations made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence but it does not include the report of a police officer". It is thus clear that it is not necessary that the complaint must always be in writing rather it can be oral as well. The main ingredient of the complaint is that the Magistrate is to be approached for taking action against the offender and there is no particular form prescribed for invoking such power of the Magistrate. In this case Tohida Bashir one of the complainants has signed the complaint and it could not be shown as under which law the complaint was required to be signed by all those shown as complainants therein. This complaint fulfils the necessary requirement of a complaint as defined in the Cr.P.C. and can be made basis for prosecution. Even if it is conceded for arguments sake that such a complaint cannot be lodged by the special attorney even then the prosecution on the basis of this complaint could not be stopped when it could competently be prosecuted by Tohida Bashir, complainant No. 3, who has also signed it. It is nowhere laid ‑down that all the complainants on every hearing must appear in Court and that in absence of any one of them the complaint could not proceed further. One of the complainants has signed the complaint and has also engaged a counsel to prosecute the complaint, therefore, there did not exist such a fatal defect to justify the Labour Court to throw out the complaint without any proceedings. The reason that the union had by then not been registered, therefore, the complaint could not be lodged by the office‑bearers of such a union is also fallacious. Section 8‑A of the IRO reads "Save with the prior permission of the Registrar, no officer of a trade union or workman shall be transferred, discharged, dismissed or otherwise punished during the pendency of an application for registration of the trade union with the Registrar, provide that the union has notified the names of the officers to the employer in writing", There is no dispute about the fact that the names of the office‑bearers of the union were notified to the Registrar. It is very clear from the above provisions that this provision can be invoked by the office bearers during the period when their application for registration before the Registrar is pending. It is curious to note that the Labour Court without recording any evidence merely on the basis of certain documents which had neither legally been proved nor their authenticity had been established, held the Mian Ashfaq respondent was not the Chairman of the Establishment. I feel that without recording evidence neither the fact as to who was functioning as Chairman or who were the Directors of the Factory at the relevant time could be established nor the Labour Court could give correct finding about it. For the above reasons I hold that the complaint is competent in its present form and the complainants can prosecute the respondent on the basis of this complaint. However, the complainants would be required to' prove by producing evidence that at the relevant time when their order of termination from service was passed it was the present respondent who was acting as Chairman of, the Establishment. The respondent can also prove by leading evidence that at the time, when the services of the complainants were terminated he was not acting as the Chairman of the Establishment and has not passed their dismissal order. The impugned order of the Labour Court is, therefore, set aside and. the case is remanded to it for proceeding in the matter in accordance with law and keeping in view the observations made above. No order as to costs. A.A./209/N.‑W.F.P. Case remanded.