1989 PLP 860 (PLC(CS))

2. These appeals are directed against orders dated 29‑11‑1986 passed by the learned Presiding Officer, Labour Court No. VI, Hyderabad whereby he convicted the appellant under section 7(2) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, for failing to insure the workmen employed by him as required under Standing Order 10‑B and sentenced him to pay a fine of Rs.50 only in each case.

3. I have heard Mr. Kamal Mansoor Alain, learned Advocate for the appellant and Mr. Abdul Sattar Daudputa, Assistant Director Labour and Inspector of Factories (respondent herein this appeal) and also perused the records and proceedings.

4. The charges were framed against the appellant under section 7(2) of the said Ordinance for contravening the provision of Standing Order 10‑B as the appellants failed to insure the workmen working under him. The appellant had initially pleaded not guilty but subsequently stated "that he now pleads that the worker had not been got insured" the learned Trial Judge taking the statement as admission of the charges under section 243, Cr.P.C. proceeded to convict the appellant without recording further evidence.

5. Mr. Kamal Mansoor Alam assailed the conviction on the ground that the appellant was not given proper opportunity to defend himself and further that Standing Orders Ordinance was not applicable to the appellant.

6. It appears from the record, that the appellant was represented by an Advocate in the trial Court. He is an educated person and an owner of the company. Under the circumstances he cannot be said not to have understood the charges or not to have been given full opportunity of defending himself.

7. It appears that before the trial Judge the only objection raised was that sub‑clause (4) of Standing Order 10‑B provided penalty for non‑compliance of sub‑clause (1) and therefore the appellant could not have been prosecuted and convicted for the offence under section 7(2) of the Ordinance. Sub‑clause (4) of Standing Order 10‑B only provides for liability of the employer in case of non -insurance where workman suffers death or injury arising out of contingencies mentioned in sub‑clause (1). Sub‑clause (1) makes it obligatory upon all employers to have all the permanent workmen employed by them insured and its contravention is an offence punishable under section 7(2) of the Ordinance which reads as under :‑‑ (2) An employer who any act in contravention of the Standing Orders as applicable to his industrial or commercial establishment shall be punishable with fine which may extend to one hundred rupees, and in the case of a continuing offence, with a further fine which may extend to twenty‑five rupees for every day after the first day during which the offence continues."

8. It is submitted by Mr. Kamal Mansoor Alam that the plain reading of this subsection would show that only when the employer does an act of commission it may constitute an offence, whereas in the instant case it was merely an omission on the part of the em‑1loycr to get the workmen insured. In other words it is contended that the act of employer punishable under this subsection only could he an act of commission but not an act of omission. The word "act" as defined in Black's Law Dictionary also provides: "An omission or failure to act may constitute an act for purpose of criminal law." The only act of commission that tire employer could perform under section 10‑B would he to insure the workmen which cannot constitute an offence. The contravention of this mandatory provision would be an act of omission which alone would he punishable. Therefore, the word `act' used in subsection 7(2), for the purpose of contravention of section 10‑B, would be an act of omission.

9. It is further submitted by Mr. Kamal Mansoor Alam that Standing orders Ordinance was not applicable to the appellant's case because though the number of employees was more than twenty, still only 22 were permanent employees out of which 15 were Salesmen who cannot be considered as workmen' under the Standing Orders Ordinance. Be that as it may this plea does not appear to have been raised either in writing or orally before the learned Trial Court. Section 243, Cr.P.C. is very clear which provides that admission of accused shall be recorded as nearly as possible in words used by him and if he shows no sufficient cause why he should not be convicted, the Magistrate may convict him accordingly. I have already reproduced the wording of admission used by the a‑ appellant. He has stated that worker is not insured. It is a clear admission of the charge against him but he has not shown any cause why he should not be convicted. He has not raised the plea, that Standing Orders Ordinance was not applicable to him. Section 412, Cr.P.C. provides 'Notwithstanding anything hereinbefore contained, where an accused person has pleaded guilty and has been convicted by Magistrate of the first class on such plea, there shall be no appeal except as to the extent or legality of the sentence.

10. As mentioned above the punishment awarded is very lenient and the learned Judge has committed no illegality by convicting the appellant on his own admission of the charges when he had showed no cause why he should not be convicted.

11. It is further submitted by Mr. Kamal Mansoor Alam that an appeal is filed under the Industrial Relations Ordinance, 1969 and as such the limitation imposed by section 412, Cr.P.C. would not be applicable. Section 36(1) of the I.R.O. 1969, provides:‑‑ The Labour Court shall, while trying an offence, shall follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898. Subsection (3) confers the powers of First Class Magistrate specially empowered under section 30 of the Cr.P.C. upon the Labour Court while trying offence under the Industrial Relations Ordinance, 1969 and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Section 262, Cr.P.C. provides "while trying summary cases the procedure prescribed in Chapter XX shall be followed". Chapter XX provides the framing of charge under section 242, and conviction on admission of truth of accusation under section

243. The learned Labour Court Judge, therefore, proceeded with the trial provided for P summary cases as Magistrate of First Class under the Cr.P.C. by virtue of section 36(1) and (3) of the I.R.O. Section 38(3) of the Industrial Relations Ordinance empowers this Tribunal to hear the appeals and it also provides that the Tribunal is to exercise all the powers conferred by this Ordinance upon the Labour Court save as otherwise provided. Thus this Tribunal will also have to follow the provisions of Criminal Procedure Code while hearing the appeals.

12. Mr. Kamal Mansoor Alam also admitted that in practice the Labour Court and the Labour Appellate Tribunal follow the Criminal Procedure Code while trying the cases and hearing appeals. He could not cite any case‑law where this practice has been deviated from by this Tribunal. No other procedure is specifically provided in the I.R.C. for the trial of the criminal offences or hearing such appeals.

13. Under the circumstances of this case I see no reason to deviate from the long standing practice which is allowed under the provisions of the Industrial Relations Ordinance, 1969. I find no merits in the appeals and, therefore, all the twenty‑six appeals are dismissed.

14. The appellants are directed to pay the fine, if not paid, within one month before the learned Labour Court No. VI, Hyderabad, failing which, the learned Labour Court may take the necessary steps for enforcing its order. A.E./1378/Lb. S Appeals dismissed