1988 PLP 202 (PLC)

This is a criminal complaint against Mr. Mukhtar Soomar Managing Director and Mr, Ahmed Ali Deputy Mills Manager Farooq Textile Mills Ltd. by Mr. Noor Muhammad for taking cognizance under section 25‑A(8) IRO for failing to implement the Labour Court's decision.

2. According to the complainant Noor Muhammad he had filed petition before this Labour Court. This Court was pleased to re‑instate him by the order dated 30‑9‑1986. Complainant reported for duty on 1‑10‑1986. He was not taken on duty. On 2‑10‑1986 he sent the joining report which was received by the Mill. On 9‑10‑1986 the Mill Manager sent a post dated letter to the complainant informing Noor Muhammad that he is not required to do active duty but his wages will be sent to him through money order. Complainant reported for duty after 5‑10‑1986 and on 9‑10‑1986 but yet he was not allowed to enter in the mills premises.

3. The complainant also claims to be the office‑bearer of the union.

4. Notice was given to Farooq Textile Mills for hearing. Mr Masood Mirza the senior counsel of Farooq Textile Mills has made appearance and argued the case that in the absence of the days specified for re‑instatement as required by subsection (9) only the Labour Court is competent to file complaint and not the workman. Secondly the complainant having been allowed the job by the respondent, it is the privilege of the employer to give him active work as long as the requirement of the service of a worker the employer has fully satisfied in terms of the Court order.

5. Mr. Raja Shamshuzzaman the counsel for the complainant has contested the legal position and stated that subsection 9(25‑A) cannot be attracted in this case when the complainant reported for duty on the very day and was not allowed. He has also further contended that to deny him of the active working in the respondents factory will also be unjust and not permitted by law. He has also further contended that they have not respected the Court's decision and, therefore, this is a clear contravention of the Court's order and liable for criminal action.

6. The Court has examined the contention of Mr. Masood Mirza referred the legal aspect and also the competency of the worker to file criminal complaint in the Court.

7. After referring the letter of 5th October, 1986 it appears that management has given the impression in their letter addressed to Noor Muhammad in this manner: "You are re‑instated from 4‑10‑1986 subject to the following: (i) The compliance of the Hon'ble Labour Court's Order is subject to the delivery of order and not from the date of announcement. (ii) The future monthly salary/wages will be sent to you through money order. (iii) Your will not actively work. (iv) You will be deemed for all purposes to be in the service.

8. In view of this letter the question arises whether there is a prima facie case for taking cognizance and whether there is sufficient ground to issue process.

9. It is correct legal proposition as contended by the counsel Mr. Masood Mirza that subsection (9) contemplates that if the time is specified and the worker is not taken on duty the worker can file complaint, otherwise it is the Labour Court which has to file complaint if no date is specified.

10. In that case only the Labour Court can file complaint.

11. The second contention is whether there is a case for the Labour Court to file complaint in another Court.

12. So for as the active working of the workman is concerned it is purely the privilege of the employer to give him any function A provided, it does not reduce his status which he has previously enjoyed. If he is employed in the job which they have not denied, the worker cannot have choice.

13. The second contention that, when the limitation operates, from the date of the announcement of the order or from the date, when the copy is supplied by the Clerk of the Court, the Court is of the view that the announcement of the order itself is the beginning of the operation of the order if parries are represented in thei proceedings. There cannot be any other interpretation.

14. The third question is what is the mens rea which is essential element in the constitution of criminal liability under the IRO or under the general law if the respondent has innocently, felt, that let the copy of the order be furnished to know the observations. He was perfectly justified to have the commutation of the time limitation but if the intention was not innocent, but expression of the disapproval of the Court's order to which Mr. Raja Shamshuzzaman has contended that they have not respected the order of the Court, it will be difficult at this stage to see that intention which can only be decided if the complaint has been taken cognizance and proceeded therewith, to see what was the intention in fact. Of course the sanctity of the Court's order has, considerable effect. As for as, the violation is concerned, the Court is of the view, that if it is contended that copy of the decision was received on 4th October, 1986 and, therefore, they have committed no offence, the offence becomes complete, when both parties were present and had the full knowledge of the Court's proceedings and could also read the order which was not difficult or lengthy. It is often practice of the Court that order is always announced in the same day and the copy is sent to the office on the same day. If for any reason the copy was not supplied, it is for the respondent to explain.

15. Finally the question arises whether this will be expedient in the interest of justice to initiate complaint in the given circumstances, the complaint is filed? The circumstances show that it is not the case that he has been denied the job or no implementation is made of the Court's order. Mens rea is most important in the case. If the order would have been disobeyed, then the offence would have been taken cognizance. If order is implemented, there is no mens rea or actus reus for completion of offence.

16. The Court is of the view that there is no mens rea and no offence under IRO is made out. If the Court has come to this aspect, that parties were represented and knew the order, whether they committed contempt of the Court's order which is also an offence showing the disapproval, and at the same time they re‑instated the complainant in compliance of the Court's decision. Circumstances are to be examined in each case.

17. The Court disposes off this complaint with this finding, only, that the language to be worded, in the letter in future, should be such that the Court should not have any indication, that the order of the Court is being disobeyed. Taking this aspect, whether the limitation operated from the date of the announcement in this case, the Court does not agree. The respondent may also have misunderstood the legal position and innocently assumed this position, that until "the observations are seen of the Court's order". For disobedience of the Court's order, there must be strong evidence that the respondent did disrespect the law. Even the circumstances of disapproval must be evident by conduct, obstruction. Mere expression of words because of excitement cannot take the place of proof. The order of the Court is the respect of the law. No one can violate the p law. But if there is misunderstanding of the legal position as in the present circumstances, as to when the decision is to be effective for the purpose of appreciating the effect and that when decision is to be effective, it is a question of fact. If it is contended that copy of the order was the legal requirement, obviously it indicated that the respondent wanted to see the observations of the Court and the line of direction. Therefore, to show that there was mens rea in misconception. Consequently to avoid unnecessary litigation and‑to avoid rise to excitement and to maintain the proper relations the Court finds no contravention of the provision of law for taking cognizance or it finds expedient in the interest of justice to initiate prosecution. This will be otherwise abuse of the process of the Court o unnecessarily drag the parties in litigation when the main requirement of the constitution of criminal liability like mens rea in any offence is lacking.

18. Regarding duty, the Court is also of the view that it is employer's choice to give him any job, provided it does not affect his terms, and conditions. Reference is made by Mr. Masood Mirza to E the reported decision as judicial precedent, 1981 P L C 663, 1982 PLC

675. A. 994/Lb.S Orders accordingly.