1984 PLP 259 (PLC)

"Coercion. The threat of taking away from another something that he possesses, or of preventing him from obtaining an advantage he would otherwise have obtained by influence or duress. See Ellis v. Barker [(1878), 40 L J Ch. 603] "Coercion involves something in the nature of negation of choice" Hodges v. Webb, [(1920) 2 Ch. 70]. Words and Phrases legally Defined. Volume I : A. C. at page 272 states as follows "Coercion" is word of ambiguous import. In one sense anyone is coerced who under pressure does that which he would prefer not to do but a reluctant debtor who pays under stress of proceedings is not coerced within the legal meaning of the word...`Coercion' involves something in the nature of the negation of choice ...An employer cannot properly be said to be coerced if, having two alternative courses presented to him, he follows that course which he considers conductive to his own interest. Hodges v. Well, [(1920) 2 Ch. 72] per Peterson, J. at pp. 85-87". Black's Law Dictionary (Revised Fourth Edition) page 342 states as follows "Coercion. Compulsion constraint : compelling by force or arms. Fluharty v. Fluhorty Del Super, 8 W. W. Harr. 487, 193 A. 838, 840 ; Santer v. Santer, 115 Pa. Super, 7, 174 A. 651,

652. It may be actual, direct, or positive, as where physical force is used to compel act against one's will, or implied, legal or constructive as where one party is constrained by subjugation to other to do what his free will would refuse, Metro-Civ App. 56 S. W. 2d. 489, Fluharty, 8 W. W. Harr. 387, 193 A 838,

840. It may be actual or threatened exercise of power possessed, or supposedly possessed. In re, New York Title and Mortgage Co. 271 N. Y. S. 433, 150 Mis cellaneous 827 ; Weir v. Mc Grath, D. C. Ohio, 52 F 2d 201,

203. As used in testamentary law, any pressure by which testor's action is restrained against his free will in the execution of his testament, Max Ar.s Mach. Co. v. International Ass of Machinists. Bridgeport Lodge, No. 30, 92, 500, 181 P. 200, 203, 5 A. L. R.

817. Duress and coercion are not synonymous though their meanings often shade into one another. Mekenzie Hogus Co. v. Carbide and Carbon Chemicals Corporation C. C. A. Minn. 73 F 2d, 78. 85." Ballentine's Law Dictionary, Third Edition, page 213 states as follows Coercion. Compulsion by the application of physical of mental force or persuasion. A word descriptive the result of an act rather than a designation of an act. N. L. R. B. v. Grower-Shipper Vegetable Asso. [(C. A. 9) 122 F2d 368]. A form of abuse of process (I Am. J2d P & 9). The compulsion, presumed by some, especially older, authorities, to have been exercised by a husband upon the wife for the commission of a crime which was committed by her in his presence. (21 Am J2d Crime L. and 102) As a defence to an action upon a written instrument-importunity which destroys the free agency of person, subjected and substitutes the will of another in place of his own, Go million v. Forsythe, (218 S. C. 211, 62 SE2d 297, A. L. R. 2d 169) ; As an unfair labour practice physical or mental persuasion by affirmative conduct, (31 Am J Revised Lab. and 226); As an excuse for the commission of an act, otherwise criminal a present, imminent, and impending physical or mental force of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. State v. St. Clair [(Mo) 262 SW2d 25, 40 Alr 2d 903]." Thus, the meanings of the words coercion as noun and coerce as verb, commonly understood are the act of coercing, restraint, compulsion or, constraint or the act of compelling by physical or mental force or arms; B to repress, to compel, to compliance. A person is coerced who under pressure does that which he would prefer not to do, a negation of choice and free will etc.

8. Sections 15 (1) (f) and 16 (d) of the Industrial Relations Ordi nance 1969 where word `coercion' occurs run as follows "

15. Unfair labour practices on the part of employers. (1) No employer or trade union of employers and no person acting on behalf of either shall (f) compel or attempt to compel any officer of the collective bargaining agent to arrive at a settlement by using inti midation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water power and telephone facilities and such other methods. "

16. Unfair Labour practice on the part of workmen. (1) No workmen or other person or trade union of workmen shall- (d) compel or attempt to compel the employer to accept any demand by using intimidation, coercion, pressure, threat, confinement, or ouster from a place, dispossession, assault physical injury, discon nection of telephone, water or power facilities or such other methods."

9. Here one could see the words of the same kind keeping their own company. The use of word `coercion' alongwith words intimidation pressure and threat in both these clauses, particularly words "pressure and threat" is very significant, and provides an example of Noscitur a Sociis. Coercion, therefore, means not only the constraint or compulsion or pressure etc. by application of physical force but also mental force with F the intention to occasion negation of free will and choice, through affirmative action. Thus, threat to unlawfully cause injury or actually causing an injury unlawfully is respect of employment including removal, discharge, dismissal or transfer of a workman in order that be executes a settlement would also amount to coercion and unfair labour practice under the

1. R. O. 1969.

10. In this context it was urged that the evidence of P. W. 1, P. W. 2 and P. W. 3 corroborated with each other in material detail to establish that after the stay order issued by Member-I N.

1. R. C. on 27th March, 1982. (a) The petitioners were made to sit in a separate room. in the estab lishment with effect from 28th March, 1982. (b) A new attendance register was introduced on which a line was drawn against column of attendance meant for them for the period from 9th to 27th March, 1982. The impression was given that the petitioners were absent for those days. (c) The petitioners were not given any work or assigned any duty. (d) The petitioners were denied wages from 9th March, 1982. (e) The petitioners were asked mala fide to attend office at G-JO a.m. which practice is not resorted to in any other newspapers. (f) The petitioners were not allowed to go to kitabat section in the same establishment. (g) The special pay of Rashid Qamar Head Katab P. W. 1 was stopped w. e. f. lst April, 1982. (h) Abdul Rashid Qamar, Muhammad Jameel Qaiser and the peti tioners including Javed Akhtar and Ghulam Yasin were either issued show-cause notices or charge-sheets or were threatened of being issued the show-cause notice or charge-sheets for conducting strike, instigating strike and riotous behaviour etc. even though the statutory period of one month during which such action could be taken had expired. (i) Rashid Qamar and Jamil Qaisar were suspended- from 15th April, 1982 to 18th April, 1982 the period immediately proceeding the signing of agreement Exh C/1 which was signed on 20th April, 1982. (j). The attendance marked by Jamil Qaiser was converted into absence. . (k) Ch. Rahmat Ali threatened that D. W. 2 being as ex-Police Officer, he shall implicate them (petitioners)' in false cases under section 182, P. P. C.

11. On this basis the counsel for the petitioners urged that each of these acts amounted to application of pressure and force amounting to coercion. He stated that the giving of the charge-sheets after the expiry of a period of one month to these 12 petitioners (h) was an exercise inculcating a state of mental terror and fear among the petitioners amounting to coercion for the purpose of executing a settlement. For after a period of one month, the offence of illegal strike, even if he admitted it to be the case for the sake of argument, had lost its culpability. He stated that after the order of the Court the action of the respondent in not assigning the duties to the petitioners, (c) seating them in a separate room (a), denying them free movement inside the establishment and not allowing them to go to the kitabat section (f), requiring them to observe such odd hours as were not in practice in any newspaper establishment located in the area (e), were the unfair labour practices calculated to coerce the petitioners with a view to making then execute the agreement Exh. C/1. Similarly introduction of a new attendance register in which a line was drawn against the names of the petitioners giving them impression of being absent for those days (b), and denying them wages for that period (d), were also latent exercises in coercion. Similarly stoppage of special pay of Head Katib Abdul Rashid Qamar and suspension of Jameel Qaiser, Vice-President of the Union as well as that of Rashid Qamar had their own demonstration impact. He said that the management of Daily Jang was clearly the beneficiary of this agreement. By this agreement the petitioners lost their permanent status and future of employment in the establishment. Therefore, it could not be said that this was an agreement under free will.

12. He said that giving appointment letters to Muhammad Rafiq and Ehsanullah Jora workers who were also locked out with the rest of the petitioners was another discriminatory tactic against the petitioners and the petitioners were discriminated because they were members of the trade union. Even if it is admitted for the sake of argument that the petitioners had conducted strike, then the guilt of the petitioners as well as Muhammad Rafiq and Ehsanullah Jora was the same. They were, how ever, treated differently because they forsook the union. This was a tactic to demonstrate to the workers that those who exercised their free will were in the process of being punished and those who did not, were rewarded.

13. Apart from that there was harassment' of workers through frequent visits of police in which officers of the union were .subjected to the process of police investigation. Then there was almost open collusion between the respondents and the Katibs engaged by them who threatened Javed Akhtar etc. petitioners with breaking his legs. Thus, an atmosphere of oppression and terror persisted in which the free will and choice of petitioners has been negated and could do nothing else but sign the agreement.

14. About the quality of the evidence he stated that the evidence of D. W. 1 amounts to hearsay because he is neither a party nor he went to the Labour Department. The evidence of D. W. 1' is contradicted by D. W. 2 in respect of assignment of duties. D. W. 1 stated that when the petitioners came back with stay order. They were assigned work. Later on he said that lie used to assign work and he used to assign' duties About Abdul Rashid Qamar he stated that actually he had been giving work to him. D. W. 2 stated on the other hand that he and not D. W. 1 used to assign work to these petitioner Katibs. About Rashid Qamar he said that he used to give matter for calligraphy to him. There was contradiction also in the statements relating to seating of petitioners after they carne with stay order, dated 27th March, 1982. D. W. 2 stated that the petitioners were allowed to sit in the same usual place reserved for. Katibs in the Hall where the rest of them used to sit. While D. W. 1 stated that only 3 of there were accommodated in the calligraphy section and the rest in magazine section. In reply to a Court question that he was deposing in that manner because he was to lose his own job if the petitioners succeeded, D. W. I. denied the suggestion, while D. W. 2 was of the opinion that if the petitioners were issued permanent appointment letters D. W. 1 and others appointed on 10th March, 1982 would have been retrenched. This makes D, W. 1, an interested witness.

15. The counsel for the petitioners further stated that it was incorrect to assert that the petitioners had conducted any strike. The plea of illegal strike by the petitioners was merely a counterblast to the sub missions of petitioners that the respondents, had conducted an illegal lock-out on 9th March, 1982. This is merely an afterthought to cloak their illegal action for neither National Industrial Relations Commission nor Labour Department nor Police nor any other authority had been informed of any illegal strike having been conducted by peti tioners.

16. A perusal of Exh. P. W. 1/17 gives the history of the dispute from the workers' point of view. It states that the union was formed on 5th March, 1982 and the workers demanded that they should be issued permanent appointment letters at least in the computer section on 6th March, 1982. The management refused and conducted lock-out in computer section. Therefore, all the work had to be done by the calli graphists who numbered only 40 while at least 100 were needed. Of these 40 only 19 had been issued permanent appointment. letters while 21 calligraphists working since 1st October, 1981 against permanent vacancies had not been issued appointment letters. They demanded extra staff to be provided. On that Mir Shakeel-ur-Rehman evicted them from their place of work. On the intervention of Nisar Usmani, Mir Shakeelur Rehman allowed the workers to go back to their duties and assured to lift the lock out. He also promised that he was issuing permanent appointment letters to all of them, but while in the office he went back on his word. This shows that the real dispute was about issuance of permanent appointment letters.

17. Apart from that Exh. P. W. 2/3 being the complaint filed by Akhtar Hayat President of the Union (which inter alia lead to the stay order by N. I. R. C. on 27th March, 1982 under which petitioners derived benefits and made claims) shows that the dispute was about issuance of permanent appointment letters to workers. Same would appear from Exh. P. W. 1/3, Exh. P. W. 1/16, Exh. P. W. 2/5 and Exh. P. W. 4/2 (demand No. 4). Further, Javed Akhtar P. W. 3 makes it very clear in his statement ; he says "on the 9th of March, 1982 the Union had deman ded from Ch. Rahmat Ali, Mir Shakeelur Rehman and Abdul Rab Sajid that the 12 petitioners may be given appointment letters. On this Ch. Rehmat Ali said that we will not be given any appointment letter. The police was called and we were forced to get down from the place of our work-". In other words the petitioners demanded to be issued appoint ment letters when already the computer machine operators were not working. At that time it is asserted that the respondents conducted lock-out. This on the very face of it seems to be false because it is highly improbable that an employer whose establishment is already partially closed should conduct a lock-out without making a demand on the workers. On the other hand it is very much probable that seeing the employer under pressure the petitioners also pressed for their demand of being issued appointment letters, at that opportune moment and conducted illegal strike for the acceptance of their demand. Further it is not asserted anywhere that the respondents/employers had made any demand at all which they required to be; accepted by workmen. Thus, why should respondents have conducted an illegal lock-out when they were to gain nothing and on the contrary were left to procure staff from open market at short notice of a few hours. That it was the petitioners who had given up work to press for their demand for appointments is also stated by C. W. I the official conciliator of the Area who said "One issue was that appointment letters bad not been issued to the Katibs. On that all the Katibs had given up work-". I have, therefore, no doubt in my mind that the petitioners bad conducted an illegal strike, on 9th March, 1982.

18. In this light, after the National Industrial Relations Commission had issued a stay order in favour of the petitioners the conduct of respondents as listed in clauses (a) to (i) at para. 10 ante does not appear to me to be mala fide in the circumstances of the case. As for the allegations listed at clause (j), Jamil Qaiser was able to point out only one instance viz. on 29th March, 1982 when confronted with his attendance register, which does not prove his claim. Also coercion on P. W. 2 is beyond this reference. Similarly, about the allegation listed in clause (k) it is strange that although Ch. Rahmat Ali had been threatening them and gunmen used to be with him, yet not a single report was lodged with the police or any other authority against him D. W. 2, about whom it was stated that he was a Police Officer turned out to be an ordinary clerk in the Central Police Office in the Civil Secretariat of the Punjab. This is therefore, nothing more than an allegation which is not proved. Thus none of the allegations listed in para. 10 ante are proved.

19. As for the alleged incident of 20th April, 1982 in getting the agreement Exb. C/1 signed by the petitioners Nos. 1 and 4 under coercion and coercing rest of the petitioners subsequently, it may be stated that except Javed Akhtar none of the petitioners has appeared before me. They could have appeared before me but have not appeared. Accordingly to illustration (g) of section 114 of the Evidence Act, 1872 the Court may pressume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.

20. As for the evidence of Javed Akhtar P. W. 3, his evidence is self, contradictory and does not inspire any confidence whatsoever. He states for instance that a blank paper was put on the contents of Exh. C/ l when it was put up to him for signature in the presence of the conciliator C. W. 1 Javed Akhtar did not sign the agreement in isolation. Neither Rashid Qamar nor Jameel Qaiser have stated in their evidence that signature of Javed Akhtar was obtained by putting blank paper on the agreement and requiting him to sign underneath. Rashid Qamar stated in his cross-examination that by the time he had completed the document Exh. C/I Javed Akhtar and Ghulam Yaseen had come and signed the agreement. Afzal Hussain C. W. 1 also was not cross-examined on this point which further leads to an inference against the statement of Javed Akhtar P. W.

3. Javed Akhtar had also stated that "I signed the agree ment. I and Ghulam Yaseen did not read the agreement and nobody read it over to us". This statement as well as the statement that the agree ment had been got signed by putting a plain paper on the written portion of the agreement was never urged by him before any authority sub sequently and until the day this statement was made. After the execution of the agreement Exh. C/1 Javed Akhtar had given a grievance notice Exh. R/46 to the Resident Director/Deputy Chief Editor, Daily Jang under section 25-A of the Industrial Relations Ordinance, 1969 on 26th June, 1982. In that grievance notice he did not state that the agreement had not been read over to him or to Ghulam Yawn or that on the contents of the agreement blank paper was put and they were asked to sign underneath. He merely stated

21. Further, after signing the agreement Exh. C/1, Javed Akhtar made an application to the Chairman Implementation Tribunal for News paper Employees. A copy of his application is Exh. R/18. In this appli cation also Javed Akhtar did not make any mention of any coercion at all. Similar applications were made by the other petitioners including Ghulam Yasin (which are Exhs. R/l I to R/21) but in none of these applications the fact of agreement Exh. C/I having been executed under coercion was stated by any one of them. On ;he contrary Javed Akhtar, Ghulam Yasin and other petitioners had each stated "Since the complainant is Member Executive/ Member of the Jang Workers' Union, the Jang Workers Union agitated the matter relating to non-issuance of appointment letter to the complainant, consequent to which the accused belatedly issued letter of appointment on 27th April, 1982 to the complainant with retrospective date''. This use of word belatedly denotes as state of mind accepting the agree ment and urging its implementation. It shows the management of Daily Jang (who are alleged to have gone to the extent of coercing the petitioners to execute it) to be dragging their feet and effecting delay in implementa tion of the agreement. It shows the petitioners who urge that the agree ment was extorted from them under coercion, to be so anxious for the implementation of that same agreement that they complain of belated issuance of appointment letters which was a term of that agreement. Had this agreement been forced on the petitioners and signed under coercion there would have been no anxiety for getting it implemented at an early date.

22. Similarly in the replication Exh. R/22 filed before the Implemen tation Tribunal for Newspaper Employees on behalf of Bashir Abid and adopted by rest of the petitioners including Javed Akhtar and Ghulam Yasin it is stated at page 6 "However, when the Jang Workers Union agitated the matter the accused reluctantly signed an agreement and manoeuvred the incor poration of certain terms in the agreement contrary to the provi sions of law." Here again the reluctance to sign the agreement is attributed to respon dent, who is now alleged to have coerced the petitioners into signing the agreement. This, to me does not appear to be the conduct of a coercer. Further, by implication it also follows that petitioners were the willing party to sign the agreement but the respondents were reluctant to sign it. Also in this replication, the allegation of coercion in getting agreement Exh. C/1 executed has not been made. Had coercion been employed the allegation of reluctance to sign would never have been made and coercion also would have been urged at that time. It appears that the plea of agreement being void due to its having been executed under coercion is merely an afterthought.

23. Further, Akhter Hayat the President of the Union who filed complaint Case No. 4 (64)/82 and made the ancillary application resulting into the stay order which was availed by all the petitioners appeared before me on 22nd April, 1982, as Exh. Pj55 would show, and stated that a compromise had been reached regarding the calligraphists. At that time he did not urge that any coercion had been exercised in connection with that agreement.

24. It is significant that none of the petitioners, or the signatories to the agreement made any complaint of coercion or otherwise to any authority even months after the 20th April, 1982 when they allege that the agreement was got executed from them under coercion. Neither Rashid Qamar (P. W. 1), Jamil Qaiser (Y. W. 2), Javed Akhtar (P. W. 5) nor Ghulam Yasin who was not produced before me nor any of the other signatories of the agreement complained or in writing to the conciliator, nor to his higher officers in the Labour Department, nor to the Police Authorities nor to the District Authorities nor to the National Indus trial Relations Commission before which their case was pending. The four also assert that they did not inform .about it even to their own colleagues, the rest of the petitioner Katibs. They did not inform their own counsel. I'. W. 1 states that be did not inform any body about the coercion after 20th April, 1982. He did not inform the Katibs about coercion. The doors of the room where the agreement was signed were open if somebody wanted to go out of the room nobody would have stopped him. He did not tell Ghulam Yasin and Javed Akhtar that he had been asked to sign Exh. C/ i under coercion. This evidence of P. W. 1 in my opinion does not show that agreement was signed under coercion and is not that of a person coerced to sign an agreement.

25. P. W. 2 Jamil Qaiser stated that from 20th April, 1982 to 19th June, 1982 be could not tell Malik Muhammad Asghar (their counsel) that he had been made to sign the agreement under coercion because he was under great pressure during those times. This statement appears to be in. correct for after 20th April, 1982 when the management/respondents had got the agreement signed under coercion (if his version is taken) and got what they wanted there could be no pressure on him thereafter. He was conveyed threats of his life by Rahmat Ali. Yet he did not report the matter to the Police. He also did not tell his counsel this most material fact even a day before the execution of agreement under coercion i. e. 19th. April, 1982 about the execution of agreement. This evidence does not inspire any confidence for at least his own counsel was not among those coercing him, he could have been taken into confidence.

26. The statement of C. W. I Afzal Hussain is also very significant. He is .a public functionary and an independent witness. A presumption o legitimacy attaches to the functions of public functionaries. His cross examination shows that the agreement was executed before him and n pressure of threat or show of force was used, no pistol weapon or arm were shown to those signing the agreement.

27. A perusal of Exh. C/I would show that it binds the management to issue appointment letters to the Katibs working on computer error correction and on daily wages basis. After 9th March, 1982 when the petitioners had conducted illegal strike and the respondents had recruited their substitutes, obviously they lost their status as workmen. By virtue of this agreement it came to be that of temporary Katibs. By virtue of this agreement the management withdraw the show-cause notices and charge-sheets given to Katibs who had taken the position before the conci liator that they were absent without leave, while the position of the management was that they had conducted strike. The management agreed to treat them as on leave. In case of non-entitlement to leave, wages for those days were to be paid gratis and no action was to be taken against them on this account. On the other hand the working Katibs agreed to withdraw the case, if any, filed by them in National Industrial Relations Commission or any other Court. It was an agreed stipulation of the agreement that computer error correction being a job of temporary nature, their services would be dispensed with according to law as the volume of work decreased.

28. Now it is an admitted fact that under this agreement each of the petitioners received wages for 9th to 27th March, 1982 when they did not perform any work. The petitioners who were otherwise rendered un employed and sustained only by stay order of National Industrial Relations Commission received appointment letters under this agreement showing them to be employed on correcting computer mistakes and on the under standing that as soon as computer script improved their services could be terminated on 15 days notice according to law. They signed the acceptance of these above-stated terms and conditions of appointment. Under this agreement the charge of conducting strike was dropped against them. None of them, as was put by the counsel for respondent, said that he did not accept the agreement Exh. C/1 as it was signed under coercion and was ready and willing to face the charge of illegal strike thus, petitioner derived benefits under the very agreement which they now assail. They received wages amounting to thousands of rupees in consequence of the agreement. They are estopped from assailing the agreement under the Evidence Act, 1872. The counsel for the petitioner said that since no charge-sheet was issued within the statutory period of one month from 9th March, 1982 the date of incident, the charge-sheets would have been void in law in any case. Even if that is granted still there were other benefits like payment of wages for the days they did not work, besides being not prosecuted and taken back into temporary employment respec tively. Also it was in consequence of this agreement that. Akhtar Hayat President of the Union fulfilled the part of contact on behalf of peti tioners Katibs by withdrawing his complaint from- National Industrial Relations Commission. It was an agreement on which both parties acted. The appellants are thus also estopped by their own conduct to challenge this agreement.

29. In view of the above discussion I find no substance in the asser tion that appellants Nos. 1 and 4 were coerced into signing the agreement, dated 20th April, 1982 and the remaining petitioners were so coerced on subsequent dates. A. E. Reference replied accordingly.