1977 PLP 152 (PLC)

/2. Briefly stated, the facts are that respondent No. 1, who is the Manager of the United /Carpets Limited, filed a complaint on 18th August 1973 before the Chairman, National Industrial Relations Commission hereinafter referred to as the Chairman, alleging that Saeed Khan along with four other office-bearers of the Union had, with a view to compel the Manangement to accept the settlement, indulged in acts of intimidation and coercion and in furtherance of it damaged the property, the stock in trade arid the machinery, which are sufficiently described in the judgment by the Chairman. After holding a preliminary inquiry the Chairman reached a prima fade conclusion that the complainant had made out a case for the prosecution of Saeed Khan and otters under section 16 (d) of the Industrial Relations Ordinance. He, therefore, tried them and after recording evidence reached the conclusion that it was Saeed Khan alone who was guilty for having contraven ed the provisions of section 16 (d) of the Industrial Relations Ordinance, 1969 and he convicted him under section 53 (1) of the said Ordinance as aforestated. No appeal was filed although it is provided by subsection (9) of stction 22-D of the Ordinance, but this petition was filed instead 16th May 1 ,475, in which amongst other grounds, the jurisdiction of the Tribunal was challenged. In view of the judgment of the Division Bench of this Court reported as Hazur Alam and 2 .others v. National Industrial Relations Commission, Karachi (1) while admitting the petition, the Division Bench observed that in spite of an appeal pending in the Supreme Court there is a judgment of this Court which is still operative until it is set aside and, therefore, this petition merits consideration on that basis.

3. Subsection (1) of section 22-A of the Ordinance as it stood before its amendment did not provide for the filing of a complaint by individuals or persons other than industry wise Trade Unions. The above D. B. judgment proceeds on that basis but subsequently on 12th October 1974, the Industrial Relations (Amendment) Ordinance, 1974, was promulgated and by section 11 (c), subsection (9) was substituted for the following:- "11 (c). For subsection (9) the following shall be substituted and shall be deemed always to have been so substituted, namely:- (9) the Commissioner may, on 'the application of a party, or of its own motion- (a) initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and (b) withdraw from a Junior Labour Court or Labour Court any applica tion, proceedings or appeal relating to unfair labour practice. There cannot be an iota of doubt that by the language of section 11 (c) retrospectivty was given to subsection (9) from the gate of its promulgation with a view to do away with the effect of the judgment of the Division Bench cited above. Now, under the substituted subsection (9) the complaint could have been filed by any party and by its retrospective operation the previous proceedings or decisions are saved. Mr. Ali Amjad wisely did not agitate the point of jurisdiction but contended that the conviction of Saeed Khan was for instigating or inciting go-slow tactics, which is an offence under section 59 of the Ordinance, wherein it is also defined, but a violation of section 59 was not within the purview of the Chairman and therefore, the conviction was bad. The learned counsel invited our attention to para. 9 of the judgment where the Chairman has summarised the evidence of witnesses and emphasised the use of the expression "adopted go-slow tactics" in support of the above contention, but this is not the only expression used as will appear from a reproduction of the relevant portion: - "Briefly stated, all the four witnesses are unanimous in deposing that the accused damaged the machinery, adopted go-slow tactics, flung filthy abuses on the Management to intimidate and coerce them to accept their unreasonable demands." It will thus be seen that the "go-slow tactics" was one of the means amongst others to achieve the end but that was not the accusation, which is clear from the following summary in the later part of the judgment:

"Needless to recapitulate that the charge against the accused is that they committed mischief to intimidate and coerce the Management to accept their exorbitant demands which they had made in August 1973," and so also in the operative part of the judgment, which is thus stated: - "I accordingly individually hold Saeed Khan (accused No. 2) responsible for having contravened the provisions of section 16 (d) of the Industrial Relations Ordinance, 1969." There cannot thus be any lacuna of doubt that the gravamen of the accusation was the violation of section 16 (d) of the Ordinance and not the adoption of go-slow tactics which by itself was an offence under section 59 of the Ordinance. The contention of the learned counsel is thus misconceived. Moreover, the objection relates to the merit of the accusation at the trial and the finding reached by the Chairman, which ought to have been challenged by way of an appeal, but this was not done. Therefore, even otherwise, it is not possible to assess the evidence, upon which the Chairman has reached conclusion of fact when it is not the case that the conviction rests on no evidence. There is, therefore, no substance in this petition which is dismissed but with no order as to costs. S. Q. Petition dismissed.