1983 P Cr (PLP)

That on the facts stated above the petitioner moved this Court for quashment of the proceedings under section 561-A, Cr. P. C., which petition was registered as Criminal Miscellaneous Application No. 483 of 1981. That the petition was heard by this Court and was however dismissed on the ground that the remedy available under section 249-A may first be exhausted. That accordingly the application under section 249-A, which was already Pending before the learned lower Court was pressed. However the learned e lower Court by its order dated 2t-11-1981 dismissed the application on the grounds of competency and jurisdiction. That however a fresh application under section 249-A was moved, on the further grounds, which were not considered in the earlier order before the lower Court. That this application was heard by the learned lower Court, who by his order dated 6-3-1982 again dismissed the same solely on the ground, that the show-cause notice was not on his record. Applicant above-named being aggrieved by order dated 6-3-1982 of the learned Presiding Officer, has filed the above petition on the following grounds:- (a) That the complaint has been filed falsely not to advance the interest of justice, but to subject the applicant to unnecessary harassment ad the proceedings are liable to be quashed under section 561-A. (b) That as stated earlier the workers mentioned in the complaints are directly under the employment of the contractor (named hereinabove) and are not on the roll of the Factory in any manner, the complaints filed against the applicant, and each of them is, on the face of it are illegal, liable to be quashed. (c) That there is patent mala fide on the part of Mr. Nadir Khan inasmuch as in the show-cause notice it is clearly indicated that the concerned workers belong to the contractor, whereas nothing has been mentioned in the complaint to prejudice the minds of the court. The complaints, therefore, being the result of mala fide and frivolous are liable to be quashed. (d) Show-cause notice dated 4-10-1980, Annexure "A" is very clear, that applicant is being prosecuted on account of non-issuance of Attendance Tickets under section 2(g) of the Standing Orders Ordinance, 1968, in respect of the workers employed by Contractors with which applicant has nothing to do and under section 2 of I. R. Contractor is Employer for purposes of workmen employed by him, under Labour O., Laws. The learned Advocate for the applicant on the basis of his above submissions stated, that proceedings pending against the applicant cannot result in his conviction and as such continuance of said proceedings would amount to abuse of the process of the learned trial Court and as such said proceedings are liable to be quashed by this Court under section 561-A, Cr. P. C. The learned Advocate for the applicant further submitted, that preliminary objections taken by the learned State Counsel to the maintainability of above application are ill-founded and are based on misconception of law, that the learned trial Court is not the subordinate Court to the High Court and as such provisions of section 561-A, Cr. P. C. are not at all available for quashment of said proceedings. In support of these contentions the learned Advocate for the applicant submitted as under :- (i) That Presiding Officer of the Labour Court acts in dual capacity and as such when he exercises powers under section 30, as First Class Magistrate, and proceeds against persons, he is subordinate to the High Court and consequently powers of section 561-A, Cr. P. C. will be available to the persons tried before him for such offences. In support of this contention, the learned Advocate for the applicant drew attention to the provisions of Income-tax Act, Customs Act, Drug Act, and other similar acts, where this Court has interfered under section 561-A; Cr. P. C. and quashed the proceedings and relied upon cases reported in various Pak. Criminal Law Journals and .P L C specially in cases reported in 1959 P Cr. L J 489, 1980 P Cr. L J 759, 1977 P Cr. L J 958, 1969 P Cr. L J 430 and 1980 P L C 301 and 1 X80 P L C 888 (ii) That under section 6 of Cr. P. C., Labour Court comes under definition of Criminal Court and under sections 142, 29, Cr. P. C., provisions of Criminal Procedure Code automatically become applicable to such proceedings, before such special Courts. (iii) Under High Court Rules Volume IV, Chapter 111, all Criminal Courts are subordinate to High Courts on principle of pari materia. (iv) That under section 36(3), I. R. O., also, Labour Courts exercise all powers of first class Magistrate and consequently all the relevant provisions of Criminal Procedure Code become applicable to its proceedings, which would include powers of section 561-A, Cr. P. C. Mr. Hayat Junejo, the learned Advocate who was given notice to assist this Court as Amicus Curiae, submitted as under :- (a) That Labour Court is a special Court and no appeal lies to High Court against its decision and as such it cannot be considered as subordinate to High Court for purposes of section 561-A, Cr. P. Code. (b) That provisions of section 561-A, Cr. P. C. do not confer -row and additional powers on High Court and as such in the absence of powers of appeal and/or Revision vested in High Court against the decisions of Labour Court, proceedings pending before Labour Courts cannot be quashed under section 561-A, Cr. P. C. (c) The Labour Court has not been established under the provisions of Criminal Procedure Code and as such provisions of section 561-A, Cr. P. C. are not applicable to proceedings pending before it, in view of the provisions of section 1(2), Cr. P. C. In support of his' above contentions, the learned Advocate relied upon cases reported in 1972 P Cr. L J 951, P L'D 1971 S C 677 .and unreported judgment of this Court in Criminal Miscellaneous Application No. 857/82, dated 23-11-1982, Abdul Rahim v. Abdul Rauf P I,.D 1977 Kar. 212 to which 1 was party. The learned counsel further invited my attention to and submitted, that Constitution Petition would be competent against the final decision of the Labour Court. The learned Advocate for the State submitted, that he was supporting the arguments advanced by Mr. Hayat Junejo, the learned Amicus Curiae as far as maintainability of the above application is concerned. On merits also he submitted, that applicant has no case, without recording of evidence, as rightly held by the learned trial Court, vide its order dated 6-3-1982, by which applicant's application under section 249-A, Cr. P. C. was rightly rejected by the said Court. I have carefully considered the above submissions made by the learned Advocates before me and have gone through all the cases cited by the learned Advocates before are. Further since commons questions of law and facts are involved in all above 13 petitions, I propose to dispose of all the 13 petitions, by this common judgment. The main question which requires consideration in .the above petitions is, whether provisions of section 561-A, Cr. P. C. are available to the applicant for quashment of proceedings pending against him, before the learned Labour Court in question. In this connection it is now settled law, that provision of section 561-A, Cr. P. C. do not confer any additional or new powers, but they are to be exercised in the aid of the provisions of the Cr. P. C1 when `found necessary to secure the ends of the justice. In view of the above legal position, the main question which requires consideration is, whether the Labour Court in question is Court subordinate to the High Court and/or inferior to the High Court so as to attract the provisions of section 561-A, Cr. P C. The question of inferior Court and/or subordinate Court has been very clearly laid down by the Hon'ble Supreme Court in the case of Abdul Hafiz v. State (PLD1981SC352). In this judgment the Hon'ble Supreme Court has held, that even a special Court, if its orders have been made appealable to High Court, irrespective of the finality attached to its orders, would be inferior to the High Court by virtue of fact that its order having been made appealable to High Court. 1n the present case the orders of the Labour Court under section 37(3) of I. R. O. 1969 is appealable to Labour Appellate Tribunal and not to this Court and as such the Labour Court cannot be considered as inferior Court and/or subordinate Court to the e High Court, so as to attract the provisions of section 561-A, Cr. P. C.. On the basis of the above referred decision of the Hon'ble Supreme Court, the Divisional Bench of this Court, in the case of Abdur Rahim v. Abdul Rauf in Cr. Misc. Application 857/32, by its judgment dated 23rd November, 1982, to which I was also party has held, that the main factor which needs consideration in deciding question of this nature i.e. of subordination is the venue of appeal. Under the I. R. O. appeal against the decision of the Labour Court has been provided to Labour Appellate Tribunal and not to this Court and since Labour Court is a special Court and admittedly it has not been established under the provisions of the Criminal Procedure Code, it cannot be considered to be inferior to the High Court, and/or subordinate to the High Court, so as to attract the provisions of section 561-A, Cr. P. C. in my opinion. The contentions raised by the learned Advocate for the applicants and the cases relied upon by him are not applicable to the present case, as the cases in question are pending before Special Court, the orders of which are not all appealable to the High Court. The cases cited by the learned Advocate for the applicant, though relate to special Acts, but in such Acts, either the powers for conducting trial have been given to the established Courts under the Criminal Procedure Code or such Special Courts decision have been made appealable to the High Court. In the instant case the Labour Court is neither established under Criminal Procedure Code nor its decisions have been made appealable to the High Court and in view of this, I am of the opinion, that the provisions of section 561-A, Cr. P. C. are not at all available to this Court for quashing proceedings pending against the applicant in the said Court. In this connection even the provisions of section 1(2), Cr. P. C. are very clear. The contentions urged before me by Mr. Hayat Junejo, the learned Advocate, who was given notice to appear as Amicus Curiae has great force and valuable assistance given by him to this Court is appreciated. Therefore in view of my above conclusions, the above petitions are not maintainable and consequently all these 13 petitions are dismissed. Since I have dismissed the above 13 petitions on legal ground, it is not necessary for me to go into the merits of the above petitions. Petitions dismissed.