1989 PLP 874 (PLC)

Laws Cited

Representation

• Heard Advocates of the parties.
• 1. It was contended by the learned Advocate for the accused that [be allegation against the accused is that he terminated the service of complainant during the pendency of application for registration of the union but this even if admitted is not an offence as the dismissal of the complainant was not as punishment accused. He further contended that since the accused had neither any knowledge of pendency of application for registration of union at the time of dismissal of complainant nor had dismissed the complainant on account of punishment therefore the complaint is not maintainable. He added that the matter can be decided on legal grounds, without recording the evidence. He relied upon the authorities reported in 1982 P L C 184, 1965 P L C 216; 1987 relied 2 and 1987 PLC 952.
• It was also contended by the learned Advocate for accused that the complainant has filed a separate application for his reinstatement and if he succeeds to establish that the offence was committed by the accused in any way then also he can file the complaint against the accused.
• 3. On the other hand the learned Advocate for the complainant contended that it is a matter of evidence to find out as to whether termination of the complainant was made as punishment and after how many days from formation of the union. He further contended that on 4-7-1988 this Court, while taking into consideration the submissions of both the parties had held that the prima facie case is made out. He relied upon the authorities reported in 1984 PLC 177, 1987 PLC243 and1987 PWLJ273.
• 4. In the first instance I would like to make a mention that while holding that prima facie offence was made out vide order dated 4-7-1988 the authorities quoted by the learned Advocate for the accused were not cited and considered and the legal aspect upon which the case can be decided was also not taken into consideration. Furthermore, all the above submissions were also not taken into consideration. The contention of the learned Advocate for the complainant that once the cognizance is taken then some evidence should be recorded as per authority reported in 1987 P.W.L.J. 273 is not mandatorily applicable in all the cases. This authority was given while scrutinizing the order made under section 265, Cr.P.C. and consideration for setting aside the order of acquittal passed under section 265-A, Cr.P.C. was that the learned trial Judge had not referred to the important piece of document i.e. amended written statement of the respondent which formed basis of Qazf proceedings, which is not the case here On the contrary the important document in this case, which has to be given due consideration is the discharge order of the complainant produced by himself and the perusal of this order very clearly shows that the complainant was discharged being surplus on account of cancellation of licence of the accused as a result of which the service of the complainant was no more required. Apart from this as per authority reported in 1987 P L C 952, which was given by this Court, the principle laid down is that application under section 249-A can be moved at any lime when accused considers that no evidence is likely to come on record to connect him with alleged offence. In spite of the fact that this Court had held that prima facie case against the accused was made out yet this Court is not debarred from scrutinizing the case from legal point of view and if the case cannot end into conviction on account of legal infirmity, there is no alternative but to acquit the accused.
• 5. Coming to the legal aspect of the case it may be mentioned here that according to the complainant himself the application for registration of the union math was made on 17-3-1988 the intimation of which was received by the accused on 19-3-198. It is, however, the case of complainant that his service was terminated with effect from 20-3-1988 with the mala fide intention on account of application for registration of the union but the order of termination produced by him shows that it was made on 18-3-1988 one day prior to receipt of information by the accused about application for registration of the union and further this order itself speaks that service of the complainant was terminated on account of the fact that the licence of the accused was cancelled from Islamabad and therefore the service of the complainant was no more required Copy of letter of the cancellation was also attached with the termination order. It is not the case of complainant that the licence of the accused was not cancelled and as such this aspect of the case needs no evidence. If it is admitted position that the licence of the accused was cancelled, because of which the service of the complainant was no more required, then I think it will be needless to record further evidence as it will amount to act in futility. The authorities reported in 1984 P L C 177 and 1987 P L C 243, quoted by the learned Advocate for the complainant are based on different facts than the facts of present case. As against these the authorities reported in 1987 P L C 852 and 1965 P L C 216 clearly lay down that termination of service of employee without any punishment was no offence and accused was rightly acquitted under section 249-A, and that if the discharge of the worker is bona fide one on account of re-organization without any taint of victimization it is no offence. In this case, as already pointed out, the order of termination is self speaking that the termination of service of the complainant was not on account of victimization, but on account of compelling circumstances of cancellation of the licence of the accused as consequence thereof the employees had become surplus. Relying upon these authorities which arc of Supreme Court and our own High Court come to the conclusion that no useful purpose will be served in recording the evidence on factual aspect and the case can be disposed of on the aforesaid grounds. In the result I allow the application under section 249-A, Cr.P.C. and acquit the accused.

Headnotes / Summary

Judgment & Decree