RUSTAM ALI MALIK, J.- By filing this petition under Section 561-Cr.P.C, the petitioners seek an order for quashing proceedings concerning Complaint No.4(1)/2002 titled Sheikh Amjad Parvez (Admn Officer), Leather Field (Pvt) Limited, Capital Road, Sialkot v. Muhammad Nadeem and 3 others, filed under Sections 16/53 of the Industrial Relations Ordinance, 1969, by respondent No.2, before respondent No.1.
2. According to the petition, the facts in brief are that petitioners No.1 to 3, 7, 9, 10, 12 and 13 were employed in the Leather Field (Pvt) Limited, Capital Road, Sialkot and who along with other workers were allegedly being deprived of every type of facility regarding, the payment of their monthly wages, including the dearness allowances, etc. And they had such other grievances as mentioned in the petition. Respondent No.2 with a mala fide intention filed complaint under Section 53 read with Section 16 (d) (e) of the Industrial Relations Ordinance, 1969 against the Petitioners and thereupon respondent No.1, without recording the statement of the complainant/respondent No.2 on oath and in violation of the mandatory provisions of Sections 200 to 204 of Cr.P.C, issued the process to the petitioners. Respondent No.1 continued to proceed with the complaint in spite of the fact that the complainant did not use to appear in the proceedings and although an order for his appearance was passed later on 29.3.2002. it was averred that the issuance of process/warrants is absolutely illegal, without jurisdiction add nullity in the law. Hence, it was prayed that the proceeding in connection with the aforesaid complaint pending before respondent No.1 be quashed.
3. On 31.5.2003, after preliminary hearing, an order was passed by this Court for issuing notice to respondent No.2 and in response to which his learned counsel has appeared before the Court.
4. I have heard the arguments from both sides.
5. The learned counsel for the petitioners has argued that the complaint has been filed under Section 53/16 of the Industrial Relations Ordinance, 1969 against the petitioners who were the active members of the Union; that respondent No.1 had violated the provisions of Sections 200 and 202 of the Cr.P.C, by issuing process to the petitioners without examining the complainant. Relying on Ali Muhammad v. Bagh Ali (1977 P. Cr.L.J 891), Abdul Majid v. Muhammad Mansur Ali and 14 others (1969 P. Cr.L.J 692), Habib Ullah v. Soomar and others (1991 P. Cr.L.J 279), Muhammad Irfan v. The State (2001 P. Cr.L.J 8585) and Said Muhammad v. Raja Haq Nawaz (1986 P. Cr.L.J 1418) (Lahore) he was argued that the proceedings were liable to be quashed if process was issued to the accused without recording the statement of the complainant. Relying on Mian Munir Ahmad v. The State (1985 SCM R 257) he has argued that the High Court is competent to quash criminal proceedings initiated under the labour laws; that an order for summoning the without jurisdiction and cannot form basis for further action; that acting under Section 561-A Cr.P.C., the High Court is competent to quash the proceedings pending before the National Industrial Relations Commission.
6. On the other hand, the learned counsel for respondent No.2 has argued that the Industrial Relations Ordinance, 1969 is a special law and the Commission has framed its own regulations, exercising its powers under Section 22-F of the Industrial Relations Ordinance, 1969 and it is no where provided that the National Industrial Relations Commission was bound to record the statement of the complainant before issuing process to the accused as it is not provided anywhere that Section 200 of Cr.P.C, was applicable to the proceedings before the National Industrial Relations Commission. The learned counsel for respondent No.2 has pointed out that the complaint was filed under Sections 16 and 53 of Industrial Relations Ordinance, 1969 and not for any offence the punishment for which is provided under the provisions of Pakistan Penal Code and hence the examination under Section 200 even otherwise was not required. Secondly, he has pointed out that Section 200 gives powers to a Magistrate to examine the complainant before issuing process, whereas the Member of N.I.R.C is not a Magistrate and hence is not bound to follow the procedure provided under Section 200. Thirdly he has submitted that the impugned order could be assailed in appeal before the Full Bench of N.I.R.C and hence the petition under Section 561 -A Cr.P.C, was not competent. Lastly he has argued that even it if be presumed that respondent No.1 was bound to examine the complainant on oath, even then it is merely an irregularity and not an illegality and hence is curable under Section 537 of the Code of Criminal Procedure as it was so held in (1)
Shamim v. Wajid AH and another (PLD 1966 S.C. 178), (2) Zahid Khalil v. The State and another (1990 P. Cr.L.J 713 and (3) Mst. Allah Bandi v. Dr. Arshad Malik C.S.P District Magistrate, Sargodha and an other (1969 P. Cr L.J 547). The learned counsel for respondent No.2 has submitted that this being for the most) an irregularity, this Court can direct that the complainant be examined on oath as the evidence had not yet commenced and as the process had been issued only to enforce the attendance of accused persons, no prejudice would be caused to the accused/petitioners, if such an order is issued by this Court.
7. I have carefully considered the arguments from both sides.
8. Admittedly, respondent No.2 had filed the complaint under Sections 16 and 53 of Industrial Relations Ordinance, 1969 before respondent No.1, against the present petitioners alleging that they were guilty of offences of unfair labour practice. Respondent No.1 was the-senior Member of the National Industrial Relations Commission and under Section 22-A of Industrial Relations Ordinance, 1969 was competent to try the case/complaint.
9. I fully agree with the learned counsel for respondent No.2 that the Industrial Relations Ordinance, 1969 is the special law and as the Commission had framed its own regulations exercising its powers under Section 22-F of the Industrial Relations Ordinance, 1969 and the method to deal with the complaints had been provided in Chapter VI of N.I.R.C (Procedure and Functions) Regulations 1973 and is this respect. Regulations No.20 to 31 thereof are relevant in this case. The Learned senior Member/respondent No.1, had entertained the complaint and as per Regulations, keeping in view the affidavit of the complainant and had issued process under Regulation 20. The grievance of the petitioners is that the complainant had not been examined on oath as stipulated under Section 200 of Cr.P.C, and on account of the said reason they had filed this petition under Section 561-A of Cr.P.C, for quashing the proceedings pending before respondent No.1; As mentioned above, the N.I.R.C has its own Regulations for trial of offences and for dealing with the complaints, it does not appear that Section 200 Cr.P.C, was applicable to the proceedings of a complaint filed before the N.I.R.C, nor under the aforesaid Regulations it was necessary that before issuing a process to the accused, the complainant should be examined on oath. Under Regulation 31, Criminal Procedure Code has been made applicable to the proceedings before the N.I.R.C but obviously the provisions of Industrial Relations Ordinance and the Regulations framed thereunder take precedence.
Furthermore, Regulation 34 gives power to the Commission to curtail examination for expeditious disposal of the cases and in exercise of its powers under Regulation No.34, the Commission may direct any examination or cross-examination or re-examination to be cut short to be dispensed with.
10. In the instant case, the learned Member appears to have acted within his powers to believe the affidavit of the complainant and to dispense with his examination before issuing the process to the petitioners and in doing so he does not appear to have committed any irregularity.
11. I fully agree with the arguments of learned counsel for respondent No.2, it was held in the case of Shamim (supra) that the better view seems to be that (failure to examine complainant before issuing process) is a mere irregularity, curable under Section 537 of the Criminal Procedure Code.
12. So far as the instant case is concerned, the proceedings were before the senior Member of the National Industrial Relations Commission and not before a criminal Court. As mentioned above, the Industrial Relations Ordinance, 1969 is a special law and the Commission has framed its own Regulations, in exercise of its powers under Section 22-F of Industrial Relations Ordinance, 1969 and hence it was not necessary for the learned Member to record the statement of the complainant.
But even if it be assumed for a moment that it was legally incumbent upon him to record the statement of the complainant, even then, as held in the case of Shamim (supra), failure to examine the complainant before issuing process to the accused was a mere irregularity, curable under Section 537 of the Criminal Procedure Code.
13. In view of what has been stated above, the instant petition under Section 561 -A Cr.P.C, for quashing the proceedings of the complaint pending before respondent No.1 is without any legal basis and the same is accordingly dismissed with costs.