1976 PLP 712 (PLC)

Kalimullah Khan for Respondents Nos. 4, 5 and

6. Date of hearing : 8th May 1976. The accused stand charged for committing unfair labour practice.

2. The case of the prosecution as stated by the complainant P.W. 1, is as follows: Indus Jute Mills Gharo had employed about thirteen to fourteen hundred workers. There were three registered Trade Unions of workers of which "Mazdoor Union was the Collective Bargaining Agent. Qayyum Shah accused No. 3), Imam Bakhah (accused No. 4), Ali Sher (accused No. 5) and Muhammad Shoaib (accused No. 6) were the President, General Secretary, Joint Secretary and Propoganda Secretary, respectively of the C. B. A. Union. During the rainy season the Mills used to provide plastic sheets to all those workers living in "katcba" houses and "juggies" for covering their roofs. On the morning of 21st August, 1975, when Masoodul Haq Askari PW-1, Manager of the Mills was present in his once, all the accused persons, accompanied by other workers of the Mills came in mob to his office and demanded plastic sheets for all the workers, including even those living in "pacca" houses and outside the Mills, colony. The Manager PW-1, showed his inability to accept their demand, with the result that the accused became unruly and started using violence against him. Hoot Khan (accused No. 1) and Alam Shah (accused No. 2) hurled abuses at him. Not only that, but the former even went to the extent of bodily lifting him up from his chair and slapping him on his face. Qayyum Shah (accused No. 3) then pulled away his chair with the result that he had to stand on his feet for about an hour and a half. Alam Shah (accused No. 2) also tried to give him a fist blow which just missed him and landed on the glass top of his table and broke it into pieces. Thereafter accused Hoot Khan wanted to further manhandle him, but Shaukat Hayat Shift Incharge P. YV. 5 and Qammarul Huda Maintenance Engineer.P. W. 6 who were already present at the scene of occurrence throughout the incident, intervened and saved him from further manhandling. The accused also took control of telephone and stopped every one present from using the same. Thereafter, Imam Bakhsh (accused No. 5) Qayyum Shah (accused No. 3) and Muhammad Shoaib (accused No. 6) forced the Manager P.W. 1 to place an order for the purchase of plastic sheets from the market. Thereafter, one Noor Muhammad Joint Secretary of the Union was sent with an order for the purchase of the plastic sheets. Police was informed through a peon of the Mills. Thereafter, Sultan Ali Shah Head Constable PW-3, accompanied by some constables arrived at the scene at about 11-30 a.m. and tried to disperse the workers but to no result. Later Muhammad Yousaf A. S. I. police PW 4, was informed who later arrived at the scene with armed police constables and finally dispersed the workers. Thereafter, on 1-9-1975, the present complaint was lodged before the Commission by Masoodul Haq Askari P.W. 1, The Labour Directorate was also informed through a letter (Exh. P-1/A), after which one Assistant Director, Labour Welfare P.W. 2, proceeded to the Mills and held investigation and prepared a report (Exh. P-2/A).

3. The accused in their statements have denied those allegations. Hoot Khan (accused No. -1) and Alam Shah (accused No. 2) stated that they were not the office-bearers of the C. B. A. Union and therefore the allegations made against them were false, Alam Shah further stated that he had appeared as a defence witness for one of the workers namely Muhammad Ummar, which was resented by the Management, as a result of which the present complaint was filed against him. According to the rest of the accused as they were all office-bearers of the C. B. A. Union, the complaint was filed against them as retaliatory measure. Referring to the demand made in respect of plastic sheets, accused Qayyum Shah admitted to have made a request to the Management for providing of plastic sheets to the workers in his capacity as president of the C. B, A. Union. The accused also examined three witnesses their defence.

4. The case of the prosecution is supported by the evidence of six witnesses. S. M. Masoodul Haq Askari, the complainant P.W. 1, has fully supported the above version of the prosecution, it will therefore not be necessary to dilate upon his evidence further. The next witness examined by, the prosecution, namely, Ehsanullah Qureshi, PW-2, was Assistant Director Conciliation, Hyderabad. Tae witness stated that he was Conciliator for Thatta District at the relevant time. On 22-8-1975, letter (Exh. P-1/A) was received by the Directorate which was passed over to him on 27-8-1975 by the Additional Director, Labour Welfare, Hyderabad for necessary action. On the next day, that is 28th August, 1975, witness proceeded to the Mills and prepared a reprot (Exh. P-1/A) after investigation. Sultan Ali St1ah P.W. 3, was the Head Constable posted at Dhabeji Police Station. On 21-8-1975, he was directed by the A. S. I. incharge to proceed to Indus Jute Mills. The witness accompanied by three Foot-constables started from the. Police Chowki at about 11-00 a. m. when he reached there he saw Masoodul Haq Askari being completely "gharaoed" by the workers. Hoot Khan (accused No. 1), Alam Shah (accused No. 2), Imam Bakhsh (accused No. 4) Ali Sher (accused No. 5), Muhammad Shoaib (accused No. 6) and Qayyum Shah (accused No. 3) were some of the workers who were recognised by the witness as being present at the scene of occurrence alongwith others and who according to him were acting as ring-leaders. The witness asked the Manager (P. W. 1) as to why he was being "gharaoed" to which he replied that the workers were demanding plastic sheets which he bad refused to give them. The witness tried to disperse the mob but could not succeed. Muhaammad Yousuf, A. S. 1., Police Line Thatta P.W. 4, stated that he was incbarge Dhabeji Police Chowki on 21st August, 1975. On that day a peon from Indus Jute Mills came and reported that some workers had "gheraoed" the Manager of the Mills. After redeiving the report, the witness instructed Sultan Ail Shah PW-4 to procceed to tfe spot with police guard. At about 11-30 a. m., the witness received a tele phonic message from the Factory that the workers had refused to disperse and were sitll "gheroaing" the Manager. Thereafter, the witness personally proceeded to the spot, accompanied by some policemen. On reaching the scene of occurrence, he saw accused Hoot Khan, Alam Shah, Imam Bakhsh, Qayyum Shah and many other workers gheraoing the Manager. The witness asked the workers to disperse which they finally did after raising slogans against the Management. To a question put by the Court, the witness stated that the case with regard to this incident had been registered at Police Station Dhabeji, in which connection the accused were later challaned in the Court of S. D. M., Thatta. The case was however later withdrawn by the Govern ment. Shaukat Usman PW-5, and Qammarul Huda P.W. 6 were the shift Incharge Weaving Section and Maintenance Engineer respectively of the Mills. On 21st August, 1975 the two of them had gone to the office of the Manager to report a defect in the machinery. On reaching the Manager's office, they found many persons present inside and outside the office who were making demands about the supply of plastic sheets to the worker. The witacss then saw the entire incident. According to the witness, twice Hoot Khan tried to attack the Manager P.W. 1, but he was saved on the intervention of the witness.

5. Against this the accused examined three defence witnesses. Mohammad Ummar DW-1, was an employee of the Indus Jute Mills Ltd., between 1969 and February 1975, whereafter he was removed from service by the Management. Referring to the two accused, Hoot Khan and Alam Shah, witness stated that they were office Secretary and Member of the working Committee respectively of "Indus Jute Mills Limited Employees' Union", which was C. B. A. at one time, and used to take active part in the union activities. On 7-2-1975, the witness alongwith Hoot Khan and Alam Shah, accused was called by Seth Ibrahim, one of the Directors of the Mills, who later asked them to leave service. The witness and the accused however refused to oblige him and reported the matter to Mr. Akber, Chairman of the board of Directors. Thereafter, according to the witness, they were sent into the room of Seth Ibrahim where they found some policeman waiting. There after, the witness was taken to the police station and plat under arrest. A case under section 107/151, Cr. P. C. was also registered against him. The trial proceeded in the Court of S. D. M., Thatta where A1am Shah and host Khan accused appeared as witnesses on behalf of the witness. He was finaly discharged in that case. A certified copy of the order of the Court was produced as Exh. DW-1/A. According to the witness, Hoot Khan (accused No. 1) also used to follow up cases filed against the other workers. The next witness namely, Muhammad DW-2, was also working in the Mills as a weaver since the last about five years. This witness also more or less repeated the same story by stating that accused Hoot Khan and Alam Shah used to take active part in the union activities, by representing the workers in cases and also appearing on their behalf as witnesses in various Courts. According to the witness, on 21st Auust, 1375, when the alleged incident took place, he was on duty between 6-00 a.m and 3-00 p. m. The witness stated that during the lunch break, which according to aim took place between 11-00 and 12-00 p.m., Alam Shah and Host Khan, accompani ed the witness to the Labour Colony and also remained with him throughout the duty hours, The witness alongwith the said accused left for duty at 11.50 a.m. Later, Hoot Khan and Alam Shah were called to the Manager's office. Thereafter, the witness heard Oat the said accused had gone to see the Deputy Commissioner, Thatta. In the cross-examination the witness admitted that he was a weaver and that accused Hoot Khan was a Fitter and accused Alam Shah was the Line Sardar. The third defence witness Nasrul lah DW-3, was also weaver in the Mills. According to him he had gone to Dispensary for medicine on the day of the alleged incident. From the Dispendary, he saw that some persons had collected in the Manager's office which was at a distance of about 15 or 20 feet from him. They were having a talk with the Manager about the plastic sheets. On that day, according to the witness only accused Muhammad Shoaib was on duty. Imam Bakhsh, (accused No. 4) and Ali Sher (accused No. 5) were not on duty, according to the witness. The witness further stated that Muhammad Shoaib (accused No, 3) was not seen by him in the Manager's office on the day of the alleged incident. According to him, Imam Bakhsh (accused No. 4) and Ali Shere (accused No. 5) came to the Mills at about 11-30 or 12 noon, after which the police arrived.

6. From the evidence of Masoodul Haq Askari, (fW-1), Manager of the Mills who is also the complainant in the case, it has clearly been establish ed that the six accused named by him came in a mob alongwith other workers and pressed for their demand of plastic sheets, and then on his refusal the accused resorted to violence. This witness has assigned a definite part to each of the accused. No motive to implicate the accused falsely has been attributed by the defence to him and I find no reason to disbelieve his evidence. The evidence of the next witness, who was officer of the Labour Directorate 11Y derabad PW-2 of a formal nature which only shows that the matter was promptly reported on 22-8-1975 to the Labour Directorate through Exh. P-1/A fat is, on the next day of the alleged incident. Sultan Shah P.W. 3 awl Muhammad Yousuf PW-4, are Police Officers who arrived at the scene of occurrence during the "gherao". Both the witnesses who had recognized the accused, have emphasized their presence at the scene of occurrence. These two witnesses being absolutely independent have clearly stated that gherao, of the Manager had taken place by a mob of workers in which the accused took active part as ring-leaders. Tn.eir evidence, therefore, lends material support to that of PWs-1 &

2. The other two witnesses namely Shaukat Usman Pw-5 and Qammarul Hudia P.W. 6, were employees of the Mills. As their usual place of work was inside the factory which was away from the scene of occurrence, those witnesses according to me were chance witnesses who were not supposed to be ordinarily present at the scene of occurrence. Their presence there was by a coincident, and presence requires that their evidence should not be readily accepted. However, even if their evidence is completely disregarded, the evidence of the other P.Ws. lends sufficient support to the case of the prosecution. In the face of this evidence, I cannot give any weight to the defence evidence, About accused Hoot Khali and Alam Shah, it is said that they used to take part in the union activities and used to represent other workers in cases, therefore, the present complaint was lodged against them by way of retaliation. Even if this evidence is accepted by me, this in my opinion, could hardly give any provocation to the management to lodge a false complaint against accused. This evidence however cannot be beileved because the two police officers (P.Ws. 3 and 4), whom I consider as absolutely independent witnesses have clearly supported the Manager PW-1, with regard to his 'ghcrao' by the accused. About accused Imam Bakhsh and Ali Sher it has been said that they were not on duty on the day of incident. If that was the case, their Attendance Register should have been produced in evidence. If a fact can be proved by documentary evidence, but it has not been so produced in evidence adverse presumption can be drawn about it.

7. Therefore from the evidence produced by the prosecution, it has been sufficiently established that the accused came in a mob to press for their demand for the supply of plastic sheets to the workers and in order to compel the Manager to accept their demand, they used coercive methods against him by manhandling him arid gheraoing him for two hours. That clearly amounted to contravention of section 16 (1) (d) of the I. R. O. which is punishable under section 53 of the said Ordinance. Under the circumstances, I find all the accused guilty of the offence with which they were charged and convict them. I sentence each one of them to undergo rigorous imprisonment for a period of one month.

8. Before parting with this matter I would like to point out that section 53 of the I. R. O. which prescribes penalties for unfair labour practice, only mentions the word "imprisonment" without describing its nature. Section 3, clause (26) of the General Clauses Act however explains that wherever a reference to imprisonment is made it would mean imprisonment of either description as defined in the Pakistan Penal Code. Under the circumstances, I am certainly within my powers to award Rigorous Imprison ment to the accused.