' RAHMAT HUSSAIN JAFFERI, J---This judgment will dispose of the above two Constitution petitions as common questions of facts and law are involved.
2. The Pearl Continental Hotel Karachi Workers Union [hereinafter referred to as the petitioner] was registered in the establishment of Messrs Pearl Continental Hotel [hereinafter referred to as the respondents]. The Registrar of Trade Unions [hereinafter referred to as the Registrar] received information and complaint from the respondents about the activities of the petitioner concerning violations of various provisions of I.R.O. 1969 and rules framed thereunder therefore the Registrar filed a case No,1/2002 under section 10 (1) of I.R.O., 1969 before the Sindh Labour Court No .V at Karachi for cancellation of the registration of the petitioner. In the said complaint, the Registrar made the petitioner as respondent No,1 and the respondents as respondent No,2 Pending adjudication of the said case, the respondents filed an application under Order 1 rule 10, C.P.C. For transposing them as a co-complainant in the case. The Labour Court allowed the said application on 12-4-2003 by transposing the respondents from respondent to co-complainant. The petitioner was dissatisfied with the said order therefore the petitioner has filed Constitution Petition No,644 of 2002 to challenge the said order. The case proceeded before Labour Court in which the parties were directed to lead evidence. On 13-7-2005, the Registrar filed an application for withdrawal of the case. The Labour Court after hearing the parties counsel allowed the application on 9-10-2004 therefore the complaint/case was dismissed as withdrawn. The respondents were aggrieved by the said order therefore; they have filed the Constitution Petition No,648 of 2004 to challenge the said order.
3. I have heard the parties Advocate at length, perused the relevant provisions of law and case-law cited at the Bar. Both the Counsel have attacked the orders challenged in their respective petitions to be illegal on various counts. After arguing for a considerable time on the question of nature of proceedings and their procedure, with reference to various provisions of I.R.O, 1969 and case-law, both the Advocates have agreed that the nature of proceedings are quasi criminal and quasi civil.
Nevertheless, they have difference of opinion on the question of procedural law. According to the learned Advocate for the petitioner, the procedure for such proceedings should be the procedure as provided under Cr.P.C. Whereas according to the learned Advocate for the respondents the procedure should be as provided under Civil Procedure Code.
4. The question revolves around the nature of the proceedings and their procedure. Under Civil jurisdiction the transposition of parties is permissible whereas it is not so under criminal jurisdiction because normally parties in criminal cases are State and accused. The grounds for withdrawal of case are also different under both the jurisdictions. In order to arrive at a proper conclusion about the nature of proceedings, it will be advantageous of reproduce Section 10 of I.R.O., that reads as under:--
10. Cancellation of registration. (1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the Registrar that the trade union has---
(i) contravened or has been registered in contravention of any of the provisions of this Ordinance or the rules; or
(ii) contravened any of the provisions of its constitution; or
(iii) made in its constitution any provision which is inconsistent with this Ordinance or the rules.
2. Where any person who is disqualified under section 7-A from being, an officer of a trade union is elected as an officer of a registered trade union, the registration of that trade union shall be cancelled if the Labour Court, upon a complaint in writing made in this behalf by the Registrar, so directs.
3. The registration of trade union shall be cancelled by the Registrar if, after holding such inquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to exist.
5. A bare reading of the above provisions reveals that subsection (1) deals with the authority to cancel the registration of a trade union and the person who can move such authority. Such powers have been given to the Labour Court, on the condition that only Registrar shall make complainant for such cancellation. No other authority or person has been authorized to move the Labour Court for such purpose. In other words, the jurisdiction of the Labour Court to cancel the registration of trade union has been restricted to the filing of complaint by Registrar only. Clauses (i) to (iii) of the subsection (1) deals with the grounds on which registration of trade union can be cancelled. The first ground is that trade union contravened any of the provisions of the I.R.O., 1969 or rules framed thereunder or the trade union has been registered in contravention of any of the provisions of the I.R.O., 1969 or rules framed thereunder. The second ground for concellation of the registration is that the trade union has contravened provisions of its -constitution by which it has been created and the third ground is that trade union when framing its constitution has made a provision in it which is inconsistent with the I.R.O., 1969 or the rules framed there-under. If there trade union commits any of the above acts, then its registration is liable to be cancelled on a complaint made by the Registrar only. Subsection (2) also deals with additional ground for cancellation of registration of trade union. Under which again only the Registrar has been authorized to file complaint before the Labour Court for the said purpose on the ground that a person who has been convicted on a charge of embezzlement or misappropriation of funds of the trade union has been elected as an officer of the trade union. Under subsection (3), the Registrar has also been given powers to cancel the registration of trade union on a limited ground that the trade union has been dissolved by itself or ceased to exist as per its constitution or law. Nevertheless, the Registrar cannot pass such order without holding an inquiry as he deems fit to find out the above-mentioned grounds as to whether or not such grounds exist.
6. In providing the above penalty of cancellation of the registration of the trade union on the ground mentioned in clause (i), the intention of the legislation is manifest and apparent, that it does not want that the trade union should violate or contravene any of the provisions of the I.R.O., 1969 or rules framed thereunder. In a specific and clear terms the Legislature have told the trade union that if it indulges in such activities then its registration will be cancelled and it will be reduced to nothing and non-existent by cancelling its registration. As such a mechanism has been provided to protect the provisions of I.R.O., 1969, from being contravened or violated by the trade union and generally by all persons as, such violations have been made an offence and punishable under section 62 of I.R.O., 1969, Such type of protection to the provisions of the I.R.O., has been provided because under general law of penal statutes such type of provisions are available to protect the contraventions of such statutes as provided under section 166, P.P.C., Where in it has been provided that if any Public servant violates or disobeys, the directions of law, to cause injury to any person then he will be liable to be punished.
7. It will be further noticed that under clause [ii] of subsection (1) the Legislature has also provided capital penalty for contravening the provisions of the constitution of the trade union. The question arises why such penalty has been provided for violation of the provisions of the constitution of trade union, which has been made by the trade union itself. A perusal of various provisions of I.R.O., 1969 reveals that the provisions of the constitution of trade union have been protected, because it is framed under the permission of the law as provided under section 3 (c) of I.R.O., 1969. Under section 4 it is incumbent upon the workers and employers while exercising the rights provided under section 3 to respect the law. Under section 6, it is the requirement of the law that the three copies of the Constitution are to be filed before the Registrar along with the application for the registration of the trade union, with a view to ascertain whether or not it has been drawn in accordance with the provisions of I.R.O., 1969. Because under section 7 a trade union cannot be registered, if the Constitution does not provide the matters mentioned in it. Not only that if the Constitution is amended or altered, the said amendment or alteration is required to be sent to the Registrar within 15 days to ascertain whether or not such change in the Constitution is in contravention of the provisions of I.R.O., 1969 or the Constitution itself. If he forms opinion that such a change is in violation of the provisions of I.R.O., 1969 then he may refuse to register such a change in the Constitution as provided under section 8(4) (5), I.R.O., 1969. Because of the above provisions of I.R.O., 1969 the Legislature has protected the Constitution and maintained its sanctity by providing that if trade union violates or contravenes the provisions, of its Constitution, then its registration will be cancelled to make it nonexistent.
8. Under clause (iii) the trade union has been debarred from framing its constitution in violation of the provisions of I.R.O.
1969. If it is so then its registration is required to be cancelled.
9. In order to run the affairs of the trade union by neat, clean and honest persons, subsection 2 has been enacted by which it has been made incumbent upon the trade union to have such type of persons as their office-bearers, it warns the trade union, that if it elects a person, who is convicted for an offence of embezzlement or misappropriation of funds to trade union as its office-bearer then its registration shall be cancelled.
10. It will be further noticed that under the above provisions of law, a severe, extreme and capital penalty in the shape of cancellation of registration of trade union has been provided for doing certain acts by the trade union. Capital penalty in the sense that after cancellation of registration, the trade union ceases to exist as in the case of murder case when a person is given death penalty he ceases to exist in the world. Thus, certain Acts of the trade union have been made penal. Under general law, certain penal acts and omissions have been made offences as provided under the Pakistan Penal Code. As such, all penal acts of the trade union would also come within the ambit of offence if penalty or punishment is provided for such acts. The words "crime" and "offence" have not been defined in the I.R.O., 1969. The said words have been defined in the American Heritage Talking Dictionary as under:-- "Offence: A violation or an infraction of a moral and social code; a transgression or a sin. A transgression of law; a crime.
' Crime: An act committed or omitted in violation of a law forbidding or, commanding if for which punishment is imposed upon conviction.2. Unlawful activity."
11. However, the word "offence" has been defined in section 3 (37) of General Clauses Act, 1897 that reads as under:-- "Offence" shall mean any act or omission made punishable by any law for the time being in force."
12. The Privy Council while dilating upon the commercial activities being crime, in the case Proprietary Asson v. Attorney General, AIR 1931 PC 94, at page 99 has observed as under:-- "If Parliament genuinely determines that commercial activities which are to be suppressed in the public interest, their Lordships see no reason why Parliament should not make them crimes."
Criminal law" means "the criminal law in its wildest sense.": Attorney General for Ontario v. Hamilton Street Railway [4]. It certainly is not confined to what was criminal by the law of England or by any Province in 1867. The power must extend to legislation to make new crimes. Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?
Morality and criminality are for from co-extensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality--unless the moral code has necessarily disapproves all acts prohibited by the State, in which case the arguments move in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of "criminal jurisprudence"; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished."
13. Thus, an offence is what the Legislature classes or punishable, therefore an act or omission can be classified as an offence by the Parliament. The Parliament has classified the contraventions of the provisions of I.R.O., 1969, etc., by the trade union as a punishable act therefore it falls within the ambit of offence.
14. If the above definition is applied to the case in hand then the acts of the trade union mentioned in section 10, I.R.O., 1969 would come within the ambit of "offence". It will be further noticed that the word "punishable" has been used in the above definition of "offence". The American Heritage Talking Dictionary defines the word "Punish" as under:-- "Punish: Of, relating to, or prescribing punishment, as for breaking law.2 Subject to punishment; legally punishable."
15. In the same dictionary the word "Penal" has been defined as under:-- "Penal: subject to a penalty for an offence, a sin or fault.2. To inflect penalty for [an offence]"
16. Nevertheless punishment or penalty is a mode by which State enforces its law forbidding the doing of something or omission to do something. It is the suffering in person or property inflicted on the wrongdoers by the sanction of law.
17. Thus, both the words have some meaning and are interchangeable. Therefore, the above definition of "offence" is applicable in full force to the present case. Hence, section 10, I.R.O., 1969 is a penal provision of law.
18. This Court in the case of K.P.T. Progressive Workers' Union v. Register Trade Unions, 2000 PLC 376 took a similar view. In that case, a difference of opinion was expressed by two Honourable Judges of a Division Bench in respect of provisions of section 10, I.R.O.
1969. Therefore, the matter was referred to a third Judge. The learned referee Judge observed that section 10, I.R.O., 1969 is a penal provision and the role of Registrar is that of a prosecutor.
19. A perusal of the I.R.O., 1969 reveals that from sections 53 to 64 a separate heading in the name of "penalty and procedure" has been given to the said sections. Various penalties have been provided for violation or contravention of the specific provisions of I.R.O., 1969. A general provision concerning violation of provisions of I.R.O., 1969 has also been made in the shape of section 62, which reads as under:- "62. Penalty for other offences. Whoever contravenes, or fails to comply with any of the provisions of this Ordinance shall, if no other penalty is provided by this Ordinance for such contravention or failure, be punished with fine which may extend to two hundred and fifty rupees."
20. Under the above provision it is manifest that contravention or failure to comply with the provisions of I.R.O. 1969 has been made penal and if penalty is provided under any other provisions for such a violation, then that penalty is required to be imposed and if no penalty is provided for such contravention or failure to comply with the provisions then the offence is required to be punished with a fine of up to Rs,250. Thus, under the above section generally violations or contraventions of all the provisions of I.R.O., 1969 have been made penal but distinguishes it in awarding punishment or penalty in two categories. One of the categories of violations or contraventions is such for which penalty or punishment is already fixed under the other provisions of I.R.O, 1969 such as section 10. In such a situation, the penalty or punishment provided thereunder is required to be imposed and in other cases the punishment of fine of Rs,250, is to be awarded.
21. In the present case for violations or contraventions of provisions of I.R.O., 1969 and constitution of the trade union etc, by the trade union have been made offence for which a specific penalty or punishment in the shape of cancellation of its registration has been provided therefore, the said penalty or punishment is required to be awarded to the trade union. As such, the said acts of the trade union would fall within the scope of section 62, I.R.O. 1969 that is an offence as declared by the legislature. Section 10 only provides the person who committed such offence and further provides penalty or punishment which is required to be awarded to the said person. Hence, both the sections 10 and 62 are to be read together.
22. Once the case falls under the provisions of section 62, then the contraventions of the provisions of I.R.O. 1969 would become a non-cognizable offence as provided under section 62-A and would be triable by the Labour Court as provided under sections 10, 64 and section 35 (5)(c), I.R.O.
1969.
23. The procedure provided for trial of offence has been given in section 36, I.R.O., 1969 that reads as under:- "36. Procedure and powers of Labour Court. [1] subject to the provisions of this Ordinance, while trying an offence a Labour Court shall follow as nearly as possible summary procedure as prescribed under the Code of Criminal Procedure, 1898.
(2) A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act, V of 1908), including the powers of---
(a) in forcing the attendance of any person in examining him on oath;
(b) compelling the production of documents and material objects; and
(c) issuing commissions for the examination of witnesses or documents.
(3) A Labour Court shall, for the purpose of trying an offence under the Ordinance or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P.
Ordinance VI of 19681 have the same powers as are vested in the Court of a Magistrate of first- class especially empowered under section 30 of the Code of Criminal procedure, 1898,
(4) No court-fee shall be payable for filing, exhibiting or recording any document in, or of any document from, a Labour Court.
(5) If parties to a case, at any time before a final order is passed by the Labour Court, satisfy the Labour Court that matter has been resolved by them amicably and that there are sufficient grounds for withdrawing the case, it may allow such withdrawal."
24. Under the above provisions, for trial of offence, the Labour Court is a Court of Magistrate of first- class with section 30, Cr.P.C. Powers and is required to follow summary procedure for trial of stich offence as provided under Chapter XXII of Cr.P.C. The parties are not required to pay any court-fee for filing, exhibiting, or recording any document in or obtaining any document from the Court.
Under subsection (5) the parties have been allowed to resolve their dispute amicably. The Court has been given powers to allow the parties to withdraw the case if the Court is satisfied that the parties have resolved the matter amicably and there are sufficient grounds for withdrawal of the case.
25. In the light of what has been discussed above, I am of the considered view that section 10 provides, firstly, various types of contraventions or violations of the provisions of I.R.O., 1969 etc., secondly specified the person i,e, Trade Union who contravenes such provisions, thirdly the penalty for such contraventions and fourthly the authorities empowered to punish or impose such penalty.
By virtue of section 62, such violations or contraventions have been made offence and punishable.
Both the sections 10 and 62 are to be in read together. The procedure to try such offence has been mentioned in Section 36 (1)(3) that is required to be followed to impose penalty provided under section 10 to for offence punishable under section 62. Furthermore, the case can be withdrawn only on the fulfillment of the conditions mentioned in subsection (5) of section 36, I.R.O., 1969.
26. I am conscious of the fact that under subsection (3) of section 10, the Registrar has also been given powers to cancel the registration of a trade union. However, it will be noticed that the construction and wordings of the subsection has been coached in such a manner that only executive or administrative powers have been given to him to cancel the registration of trade union. Firstly, it is out of the scope of the Registrar to cancel the registration on thd ground of violations or contraventions of provisions of I.R.O, 1969 or the constitution of the trade union.
Secondly, he can exercise such powers only in case if the trade union has dissolved itself or ceased to exist under its constitution or law. Thirdly, the Registrar has not been given powers of trial but he has been authorized to hold inquiry only. However, the law permits the Registrar to hold inquiry as he deems fit. Nevertheless, the inquiry should be conducted fairly, reasonably, in an equitable manner fulfilling all the formalities, conditions and requirements of natural justice by giving notice, and hearing all the concerned parties, before passing any order. During inquiry, if Registrar finds that any provisions I.R.O. 1969 or rules framed thereunder or the provisions of constitution of the trade union have been contravened or other grounds of section 10 are attracted then he shall refer the matter to the Labour Court by filing a complaint in the manner provided under subsection (1) of section 10, because his powers are very limited and restricted to the extent as mentioned above.
27. In the present case, the Labour Court has adopted the procedure provided under C.P.C., which is not authorized by the law to be followed in the proceedings for cancellation of registration of trade union. Impleading the respondents and their transposition have also been made under the provisions of C.P.C. The case was also allowed to be withdrawn by invoking the provisions of C.P.C.
And grounds mentioned thereunder. Thus, the proceedings conducted by the Labour Court in the case are illegal and ultra vires. The illegalities committed by the Labour Court are such that cannot be cured, but have vitiated the entire proceedings and trial of the case. Therefore, all the proceedings are set aside including the impugned orders of both the petitions.
28. Consequently, the case is remanded to the Labour Court to proceed with the case from the very start i,e, from filing of complaint by the Registrar, in accordance with law. The complaint shall be treated between the Registrar and the petitioner only. Both the petitions are allowed in the above terms.