1988 PLP 307 (PLC)

At the trial the prosecution examined the complainant Mr.S.Sattar Daudpota who produced one letter dated 18‑10‑1986 as Ex.P/1 said to have been written by him to the Occupier Manager Sind Beverages (Private) Limited with receipt Ex.P/1‑A, carbon copy of the inspection note as Ex.P/2. Letter dated 21‑10‑1986 sent by the accused to the complainant as Ex.P/3, photostat copies of statement of workers as Ex.P/5; letter dated 20‑10‑1986 from complainant to accused Ex.D/l, and letter dated 25‑10‑1986 from accused to complainant as Ex. D/2. He also examined Mr. Gulfam Nabi, Labour Officer. After the evidence of the prosecution as aforesaid, the accused was examined under section 342, Cr.P.C. In his statement he professed his innocence and also filed his written statement as Ex. D/1 alongwith the documents mentioned in this statement. He then entered into his defence and made his statement on oath. He was then cross‑examined on behalf of the complainant quite in detail. He has also produced photostat copy of 'M' Register for 1982‑86 Ex. D/3 and photostat copies of the letter dated 20‑10‑1986 sent by the complainant to the accused as Ex. D/4 and letter dated 25‑10‑1986 from accused as Ex. D/5; attested copies of letter dated 18‑10‑1986 from complainant to accused as Ex.P/6; and letter dated 21‑10‑1986 from accused to complainant as Ex.P/7. He then closed his side on 10‑10‑1987. I have heard Mr.A.Sattar Daudpota, complainant in this case, and Mr.A.Ghani Khan, Advocate for the accused. I have also examined the evidence on record. (1) Whether the accused did not provide the leave passes to the named workers? (2) Whether the accused has committed any offence? To substantiate the charge against the accused Mr.A.Sattar, complainant herein has deposed that he alongwith his Deputy Director and others had inspected the factory of the accused in the month of October 1986 and during the said inspection a number of irregularities and contraventions of the Ordinance were noticed. One of the same was the non‑issuance of leave passes to the workers. Accordingly, he sent a notice dated 18‑10‑1986 to the accused in respect of all the contraventions noticed by him. This notice has been produced by him as Ex.P/1 alongwith acknowledgement receipt as Ex.P/1‑A. The contraventions were also recorded in the Inspection Book maintained by accused. Photostat copy of it has been produced as Ex.P/2. It is said to have been replied by the accused as per Ex.P/3 and, as deposed to by the complainant, the accused admitted the contraventions notified to him and assured its rectification. It has also been deposed by this complainant that he had recorded the statement of all such workers who were not provided leave passes as per Ex.P/5. Finding the accused to have contravened the provisions of the Ordinance, he filed the present complaint. In his cross‑examination he has specifically admitted that he did notify the names of such workers who were not provided leave passes, while issuing the show‑cause notice to the accused. He also admitted that he neither checked the personal files of such workers nor even demanded the same from the accused. He also admitted that he even did not enquire from the concerned worker for which date leave pass was not issued to him. According to him, since the irregularities were admitted by the accused, he was not supposed to check the files. The next witness examined by the complainant is Mr. Gulfam Nabi, Labour Officer. In his examination‑in‑chief, he supported the complainant to the effect that inspection was carried on in October 1986 and that some contraventions were noticed by the Inspection Team and further that such contraventions were duly recorded in the inspection book maintained by the accused. In his cross‑examination however he could not say what irregularities or violations were found by the team. He also admitted that he did not check any personal file of the workers. He also admitted that during the course of inspection the accused has informed him that some workers were not his employees. The plea of the accused right from the very beginning is that firstly a number of persons mentioned in Ex.P/3 were not his employees and further that leave passes were always issued to the employees of the factory. In regard to the so‑called admission of contraventions as alleged by the complainant, he has specifically stated that the show‑cause notice was vague in particulars and details and it being a general and routine letter, a routine reply was given to the complainant and which reply cannot be termed as an admission of the charge. He also denied that the statement of any worker in regard to the alleged violations was recorded by the complainant or his team in his presence. In nutshell, he specifically denied the charge and pleaded his complete innocence. Mr. A . Sattar has submitted that the inspection has been admitted by the accused and further that he has also admitted the commission of irregularities and violations as notified to him. In fact, Mr.Sattar's main emphasis is on the reply of the accused Ex.P/3 and he has attempted to canvass me that by this letter the accused has specifically admitted the charge communicated to him and so he cannot now plead his innocence. His further submission is that besides this admission on the part of the accused, the statements of the workers as per Ex.P/5 also substantiated the charge against the accused. Mr.Sattar also submitted that under 5.0.20 employer has entire control over the factory and even if any Department or any work in the factory is leased out to any Contractor, still it is the responsibility of the employer to ensure the compliance of the provisions of Standing Orders Ordinance. In this case, according to him, the present accused had admittedly full control over the factory and if any Department of the factory had been leased out to a contractor as pleaded by the accused, and if such contractor had not complied with the provisions of Standing Orders Ordinance the accused alone would be deemed to have violated the provisions of the said Ordinance and so he can be prosecuted for the same. Finally, he submits that the evidence has proved to the hilt that the accused has violated the provisions of Ordinance and so he is liable to be punished. Mr. Ghani, on the other hand, submits that to bring home the charge against the accused, the onus heavily lies on the complainant. In the instant case, according to him, the charge is that the accused did not issue leave passes. This charge has however not been substantiated by him. Admittedly, he submits, the complainant or any member of his team did neither check the personal files of the workers nor even asked for such files from the accused to ascertain if the leave pass was not issued to the worker. The accused has repeatedly pleaded that leave passes were duly issued to all such workers who applied for leave pass. The issuance of such pass has not been assailed in the cross‑examination of the accused. Moreover, the complainant had himself examined the 'MI register but he did not record any violation of the Ordinance. No statement of any worker was recorded by the complainant to substantiate his allegation nor any such worker .has been examined in this Court to corroborate his version. According to him, P.W.Gulfam Nabi has also not supported the complainant. As to the contention that the violation if committed by the contrator would be deemed to be the violation made by the employer, Mr. Ghani submits that first there had been no violation even on the part of the contractor, and, secondly, the accused cannot be held responsible for any violations if committed by the contractor particularly when the accused has specifically denied the employment of the persons shown in the list sent by the complainant to the accused. It is the cardinal principle of law of criminology, by that the accused is to be deemed innocent unless he is proved to be guilty of any offence and so heavy burden lies on the complainant /prosecution to prove the charge without any doubt whatsoever. It is also a settled law that the prosecution has to stand on its independent legs and cannot take benefits from the weakness of the accused. Reliance can be placed on 1985 P L C

473. In view of this legal position, I would examine the material‑on‑record to find out if the accused has committed any offence. The main allegation of the complainant against the accused is that he had' not issued leave pass to his worker and so he committed the violation of the Ordinance. The complainant has placed reliance on the alleged admission of the accused as also the statements of the workers. The alleged admission is Ek.P/3. It .is a letter sent by the accused to complainant in reply to letter dated 18‑10‑

86. I have repeatedly gone through ‑this show‑cause, notice. Ex.P/1 and I could not lay my hands on any allegation that the accused did not issue leave pass to a particular workman. On the contrary, he admitted in his cross‑examination that he even did not enquire from any worker for which date leave pass was not issued to him and thus the whole imputation of complainant is on mere surmises and conjectures. Since it was a vague letter, or may be termed as a routine letter, it was also replied in a routine manner. Accordingly, as has rightly been submitted by Mr. Ghani, this reply EX.P/3 cannot by any stretch of imagination be deemed or, construed, to be an admission of any such contravention which entails prosecution and conviction of the accused. In fact, to press conviction on the plea of guilt, the charge as well as the admission of the charge has to be specifically shown and pleaded and if there is a least ambiguity either in the charge or in the plea of guilt, the accused can never be convicted. I repeat here) that since this show‑cause notice Ex.P/l does not disclose any specific charge in respect of any worker, nor the reply Ex.P/3 gives the least indication of admission of the charge, the accused cannot .be held guilty of any contravention.. The second piece of evidence canvassed before me by the complainant is statement of the workers. It is Ex.P/5. I have examined it and I am of the firm view that it can, in no way, be treated as a statement of the workers because it is absolutely silent for what purposes the signatures of the workers had been taken on this document. On the top of this document only the following has been recorded. "Statement of workers of Sind Beverages (Pvt.) Limited, Hyderabad in respect of provisions of Holiday Book/Card, letter of appointment dated 14‑10‑1986." This writing does not indicate that the accused had 'committed any violation and that the workers had shown their respective grievances against him. It has been admitted by the complainant that this statement was not recorded by him but the writing on the top was written by his assistant, while the names of the workers were recorded by his Lahore Officer as also one clerk. Why three persons were engaged only to obtain the signatures of the workers and why a specific statement in regard to the non‑issuance of the leave passes to the workers was not obtained, has not been explained by the complainant. A close scrutiny of this document in fact reveals that the writing on the top, which is admittedly in a different hand and also in a different link, appears to have been added subsequent to getting the signatures of the workers. Besides this, I find that word "no" or "yes" under the heading "appointment letter received or not" has been written in English though other particulars including the names have been written in Urdu or Sindhi. This answer in affirmative or negative also appears to have been recorded subsequently or without the knowledge of the workers otherwise at least such answer should have been recorded in the vernacular. It has specifically been denied by the accused that any statement of worker was recorded but still the complainant made no effort to prove that he had recorded the statement of the workers in regard to the alleged contraventions. No worker has also ‑been examined to testify the allegation of the complainant. Accordingly, the uncorroborated oral word of the complainant alone cannot be taken as a gospel truth: There is no provision in the Ordinance that each worker has to be given leave passes even if he does not apply for leave. Such passes are to be issued only to such workers; who wanted to avail leave. Accordingly, before initiating prosecution of the accused on this charge, the complainant must have 'specifically, enquired from the workers for which period leave passes were refused to‑ them. I repeat here that admittedly the complainant did not bother to make such enquiry arid so the entire complaint is based on no material. The accused is thus to be acquitted on this ground along. Besides the above, it is an admitted fact that none of the members of the team attempted to verify the so‑called allegations, of the workers from the record of the accused inasmuch as neither any one checked .the, personal files of the workers, nor such: files were even demanded. Not only this but even the complainant did not bother to verify if the persons who claimed themselves to, be the employees of the accused were actually employed in the factory directly or even through contractor. No investigation‑ in this behalf was made by the complaint before bringing this complaint nor any evidence to prove the charge has been led in this court. Lastly, I find that when the accused specifically pleaded in his evidence that he had provided leave passes to his workers, the complainant did not assail his statement on oath in any manner whatsoever and which means that whatever, has been stated by the accused on oath, the same would be treated as true. In this view of the matter, it cannot be urged by the complainant that the accused has committed any violation of the Ordinance and' so he was liable to be punished. In fact, the complainant has miserably failed to bring home the guilt of the accused to warrant his conviction. The upshot of the above is that this complaint having no substance is dismissed and consequently the accused is acquitted of the charge. He is also discharged of his bail bond. S.Q. /1052/Lb.S Complaint dismissed.