1988 PLP 143 (PLC)

Mr. Zar Wan Khan has filed criminal complaint under section 25‑A (8) of the IRO r/w sections 54 & 55 of the IRO against Mr. Abdul Aziz contractor that he has failed to comply with the order of the Labour Court and consequently committed breach of the law. He has referred to the Court's decision, given on 11th August, 1986 where the Labour Court re‑instated Rahim Khan, Zar Wali and Sher Zamin against the illegal termination.

2. Mr. Aziz contractor was placed on the criminal indictment to face the trial for such contravention to which he pleaded not guilty.

3. In view of the Court's decision of 11th August, 1986 Mr. Aziz contractor had the full knowledge of the Court's proceedings but remained absent. The Court examined the matter under section 25‑A IRO, passed the detailed order and came to the conclusion that Mr. Abdul Aziz contractor is the employer of all these 3 employees, Zar Wali Khan, Rahim Khan and Sher Zamin. It is, therefore, the termination from the employment affected by the contractor was not according to law.

4. Mr. Aziz contractor had the full opportunity to lead the defence whether he desired to be examined as a witness after he has given the statement under section 342 Cr.P. C. to explain the circumstances appearing against him. He admitted that Court had passed the order when he has shown that he has no knowledge about the Court's decision. He has also shown unawareness that complainant did not come to him with the copy of decision. He has explained his defence more comprehensively and is very important to be referred in details. "I was not the contractor in the company. I was working as the In-charge of Weaving Section. In January 1986, they produced certain documents. They said that this was the agreement for one year. It was not an agreement but there were other documents on which they obtained the signature. Subsequently, they said that the agreement of contract is made and on 10th March 1986 I was turned out. When I told Mr. Omar that I have to attend the legal proceedings in the application filed by Zar Wall Khan and others Mr. Omar said that this is the case of the company. They will deal with the matter. They told me not to go in the Court. I did not come in the Court despite the service. When the Court decided the matter, Mr. Omar came at my residence. I was told by Mr. Omar to attend the Court's proceedings because warrants have been issued. I told him that it is you who obstructed me from the Court. Thereafter he said, you must attend the Court, as the matter is getting serious. He also said to attend the Court. He will look after the matter. He also said not to engage any lawyer. Stand before the Judge, he will forget."

5. This statement of the accused was recorded in verbatim what he has said word by word. But at the same time he has also stated before the Court that he has great respect for the Court.

6. He has produced the documents, one is the increment letter, return of Income‑tax, certificate of deduction, notice of demand and the certificate of the Gul Ahmed Textile Mill regarding salary etc; to be produced before the Income‑tax Officer. He was also put specific question whether he wants to examine him as a witness. He has shown his own voluntary choice of not being examined as a witness.

7. Following is the point for determination: (i) Whether Mr. Abdul Aziz contractor complied with the decision of the Court? (ii) Whether he has committed contravention of the provisions of section 25‑A subsection (8)? REASONS:

1. Regarding criminal liability of Mr. Abdul Aziz, for the non- implementation of the Court's decision Mr. Abdul Aziz has offered this explanation, in the statement recorded under section 342 of the Criminal Procedure Code to explain the circumstance, Mr. Abdul Aziz has taken this defence that he was not the contractor, in the company. He was working as In-charge of Weaving Section. In January 1986 Gul Ahmad Textile Mill management produced certain documents and obtained his signature. Subsequently they gave the impression that it was the agreement of contract. He has further explained that when he was party of the legal proceedings initiated under section 25‑A IRO by Zar Wali Khan, he wanted to contest the proceedings, but Mr. Muhammad Umer of the Gul Ahmad Textile Mill did not guide him properly and told him that they would deal with the case before the Labour Court.

2. By this explanation, Mr. Abdul Aziz has given the impression that the original application of which the decision was not implemented, he wanted to contest but he was asked by the company itself not to contest.

3. The Court has seen the judgment and also referred the observations and further examined the original files and found that Mr. Abdul Aziz had full knowledge of the proceedings on his first service of appearance, and subsequently when the matter was under negotiation, and the talks failed, he filed application to give him the chance to contest. This matter was judicially determined. The Court passed the detailed order that the absence of Mr. Abdul Aziz was to cause delay in the matter. He filed no appeal against the order nor filed any revision on the point of law. The original copy of the order is in the case of Rahim Khan which forms part of all the three petitions namely Sher Zaman, Zar Wali Khan and Rahim Khan.

4. So in view of this legal position Mr. Abdul Aziz could not show the ignorance of the Court's decision of which he was initially a party, with that background. However, the main question arises of the criminal liability for the non‑implementation of the Court's decision of which he had the opportunity to defend the petition under section 25‑A and this decision of the Court of law was binding on Mr. Abdul Aziz for the purpose of criminal liability. This is no defence that Mr. Muhammad Umer, officer of the management asked him to remain away from the proceedings and he will deal the matter. If Mr. Abdul Aziz was party to the proceedings, he was fully conscious of his legal obligation, to intend the natural consequence of his act.

5. Another point is also raised that complaint becomes infructuous that in view of the cessation of Gul Ahmad Textile Mill by the Labour Department vide its letter No.4079 dated 15th December, 1985 the factory was de‑registered and bifurcated into three independent units, it did not exist and does not constitute factory. It has also been further contended that Mr. Abdul Aziz retired in October, 1985 and was purely an employee in Gul Ahmad Textile Mill upto October, 1985 further supported from the Income Tax Returns.

6. The point in dispute before this Court is not that of the cessation of Textile Mill or the bifurcation of the factory into three independent units. It is also not the point in dispute when he retired from the job in the Gul Ahmad Textile Mill. This is a case of criminal liability, exclusively confined to this question whether he implemented the Court's decision by giving plausible explanation in the criminal Court that he did not disobey the decision of the Court in the matter of which he was party to the judicial proceedings and could raise all possible defences for the adjudication of his rights in the manner the law prescribed for the observance of the legal procedure in the petitions under section 25‑A. If Mr. Abdul Aziz was party to the proceedings and remained purposely absent to obstruct the judicial proceedings. The Labour Court discussed his conduct in the original proceedings as to delay or protract the proceedings and thereby defeating the petition in the administration of justice and now shifting the responsi bility that he had no knowledge of the proceedings or he was misguided by the management. His criminal liability after the Court had given the decision, unless appealed against cannot mitigate his responsibility with any stand he may take which may even be collusive. However, the question is of the criminal liability that every person is presumed to intend the natural consequence of his act. If Mr. Abdul Aziz has pleaded that he was not contractor or he was simply the employee in the Weaving Section, he could have sought the declaration of his A rights through Labour Court which gave him reasonable opportunity to show to the Court that the agreement was the forged agreement of contract and he was not the contractor, or it was collusive action to defeat the order for effective implementation.

7. So for the purpose of criminal liability, all that Mr. Abdul Aziz has to show that he implemented the Court's order as required under subsection (8) of section 25‑A. What will be the effect that he cannot implement the order in the circumstances when he has no more relationship with the company or implementation is beyond his control, it is no defence to mitigate the liability what has accrued to him in respect of the rights which complainant has acquired under the judicial decision in these circumstances where the basic question deals with the state of mind such as the mens rea in the criminal liability. If all the circumstances show that in the main petition he had the knowledge of the proceedings and he filed no appeal or revision on point of law against the order of this Court, in the decision under section 25‑A, he intends the natural consequence of his act for the purpose of criminal liability under section 25‑A, subsection (8) of the Industrial Relations Ordinance. Whether the application was collusive or otherwise which has rendered the decision ineffective regarding implementation, the criminal liability still exists to the course of action where accused intended to divert or defeat justice. The Income Tax Returns which he has produced to show that he was not contractor cannot advance his case in respect of his innocence when he could raise these defences in the main petition.

8. In the result the complaint is not infructuous. It is the liability which has accrued against the accused under the Court's decision for the purpose of giving effect to provisions of subsection (8) of section 25‑A that the non‑compliance of the Court's order is a criminal offence.

9. Consequently, the Court is of the view that Mr. Abdul Aziz contractor has committed contravention of subsection (8) of section 25‑A IRO by failing to implement the order of the Court of law, which declared the rights of the parties by issuing directions of re instatement. The non‑implementation of the Court's order is the most serious offence, for it is the disregard of the law, the legal enforcement was obligation on Mr. Abdul Aziz contractor, either to have filed appeal against the order and if no appeal was filed against the order, to regard the law with the highest respect. Whether the application was collusive, the criminal Court will not go into this question, or what will be the effect if Mr. Abdul Aziz has severed the relationship from the Gul Ahmad Textile Mills and what civil liability he will incur against this employee who had taken the directions of re‑instatement, he can pursue the matter what is legally advised. But so for as the criminal liability of Mr. Abdul Aziz contractor is concerned, the Court in exercise of the criminal jurisdiction and taking all the circumstances of his old age, award him conviction by sentencing him to suffer the fine of Rs.1000 or in default to suffer one month's simple imprisonment. If the fine is paid today he be released. If fine is not paid he should be remanded to suffer the sentence of one month's simple imprisonment. Judgment accordingly. Office to proceed by issuing warrant of conviction, unless the fine is paid. The office to issue the receipt of fine to form part of the record if deposited. A.E./981/Lb. S Conviction order passed.