The respondent, Sadaat Hussain Kazmi, who was employed as a Storekeeper in the Sind Agricultural Supplies Organization, hereinafter referred to as SASO, was placed under suspension on the allegation of misappropriation of stocks of fertilizer by him. He challenged the orders of his suspension before the learned VIth Labour Court at Hyderabad, but his grievance petition was dismissed. On appeal, this Tribunal, by its order, dated 9th April, 1980, directed that he be re- instated in service but further ordered the question of payment of back benefits would depend upon the result of the investigation being carried on against him by the Anti-corruption, Police or any other enquiry to be instituted by the organization against him. In pursuance of this order, the respondent reported for duties to SASO, but it appears that instead of taking him back on duty there was some correspondence in the said organization. The respondent accordingly, on 24th May, 1980, filed a complaint against the 2 appellants Salem Aziz Siddiqi and M. S. Hingoro, for failure to comply with the orders of this Tribunal. In the meanwhile, on 30th May, 1980, appellant Muhammad Siddiq Hongoro Deputy Director, SASO, issued orders for the reinstatement of the respondent with effect from 10th April, 1980, presumably in an attempt to comply with the order of this Tribunal. The learned Labour Court, however, has taken the view that instead of immediately complying with the orders of this Tribunal and allowing the respondent to perform his duties, when he reported for duty on 10th April, 1980, appellant Salim Aziz Siddiqi, District Agricultural Supply Officer, kept the respondent's report for duty pending for 13 days and thereafter forwarded the same to his superior, Muhammad Siddiq Hingoro, for further necessary action as deemed fit, and the latter in turn, referred the matter to the Operational Director, SASO, Karachi, for necessary orders. The learned Labour Court, therefore, considered that the 2 appellants had deliberately adopted dilatery tactics and had not complied with the orders of this Tribunal in accordance with the provisions of sub-clause (8) of section 25-A, I. R. 0. It, therefore, sentenced each of the 2 appellants to suffer imprisonment to rising of Court and to pay a fine of Rs, 500 and in default of payment of fine, to suffer simple imprisonment for 6 months. The appellant have come up in appeal to the Tribunal against their conviction and sentences.
2. I have heard Mr. Humayun, who appeared for the appellants, and Mr. Mian Mushtaq Ahmad, the learned counsel for the respondent/ complainant. Mr. Humayun assailed the impugned conviction and sentence of the appellants on the grounds-
(I) that the learned Labour Court was not competent to take cognizance of the offence ;
(II) that has no complaint has been filed against SASO, which was the employer of the respondent/complainant, the 2 appellants, who are mere employees of the SASO could not have been convicted and sentenced ; and
(iii) that in any case, it has not been established that any offence was committed by the appellants.
3. Elaborating his arguments in respect of his first contention, Mr. Humayun submitted that since no period was specified in the order of this Tribunal for its compliance, the case fell within the scope of clause (b) of subsection (9) of section 25-A, I. R. 0. And cognizance of the offence could only be taken upon a complaint by this Tribunal. In support of his second contention, namely, that the appellants could not be tried, convicted or punished unless the SASO had also been made a party to that proceedings and a complaint filed against it, the learned Representative relied upon the decision of their Lordships of the Supreme Court in the case of Akhtar Hussain Bhutta v.
Superintendent of Police, and the decision of this Tribunal in the case of Abdul Hadi Fareed v.
Muhammad Irshad . In support of his contention on the merits of the case, Mr. Humayun submitted, firstly, that the appellants in fact had complied with the orders of this Tribunal and ordered the respondent's re-instatement in service with effect from 10th April, 1980, and that secondly, it had been admitted by the respondent himself, in his cross-examination before the learned Labour Court, that he had been attending office with effect from 10th April, 1980.
4. Mr. Mien Mushtaq Ahmad, the learned counsel for the respondent/ complainant, on the other hand, submitted that the instant case fell to be considered under clause (a) of subsection (9) of section 25-A, I.R.O., in that though the order of the Tribunal did not specify the period within which it was to be complied with, the said order was required to be complied with within 7 days, as laid down in subsection (8) of section 25-A. He argued that in such cases both clauses (a) and (b) of subsection (9) would be applicable and it was open both for the complainant and the Court concerned to lodge the requisite complaint. In regard to the second contention of Mr. Humayun, it was submitted by Mr. Mian Mushtaq that though the SASO is a Statutory Corporation yet the default in the instant case was in fact committed by the 2 appellants to whom the report for duty of the respondent/complainant was submitted. On merits, the learned counsel submitted that though the appellants were required to comply with the order of this Tribunal within 7 days, i,e, by 16th or 17th April, 1980, it was not till 30th May, 1980, 6 days after the complainant had filed his complaint before the learned Labour Court and the appellants had been served with process in regard to the said complaint that they complied with the order of this Tribunal. He, accordingly, submitted that there was deliberate non-compliance and in fact defiance of the orders of this Tribunal.
5. Since the first contention of Mr. Humayun and the objection thereto of Mr. Mushtaq are based on the provisions of subsections (8) and (9) of section 25-A, I.R.O., it would be advantageous to reproduce the same in extenso. The two subsections read as follows :- "(8) If a decision under subsection (4) of an order under subsection (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or1 2 complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees.
(9) No person shall be prosecuted under subsection (8) except on a complaint in writing-
(a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or
(b) by the Labour Court or Tribunal, if an order or decision thereof is not complied with."
6. Before examining the import of these two subsections, it may be pointed out that they alongwith subsection (10) were added by Act XI of 1976. A bare reading of the above two subsections makes it clear that whereas clause (a) is applicable to cases where the period for the compliance of the order, of the learned Labour Court or the Tribunal is specified in the order itself, clause (b) applies to cases where an order or decision of the Labour Court or the Tribunal is not complied with at all.
The difference in the phraseology of the two clauses is significant and cannot be ignored. No doubt, it is provided in subsection (8) of section 25-A, that if a decision or order of a Labour Court or Tribunal, which does not specify the period within which it is to be given effect to or complied with, is not complied with within a week, the defaulter is liable to be punished, but the said sub section merely states the ingredients of or the acts which constitute the offence, but it cannot be read as indicating that there a decision or order of the Tribunal or a Labour Court does not specify the period for its com pliance, the period is to be considered as 7 days, and that further the said period is to be presumed to be specified in the order itself. If sac had in fact been the intention of the Legislature, not only the wording of the 2 clauses would have been different but possibly clause
(b) would become largely redundant. In fact, the real intention of the Legislature appears to be that that where the period within which an order or decision of the Labour Court or the Tribunal is to be complied with is not specified in the order itself, it should not be left open to the complainant to initiat criminal proceedings against the defaulter, but the proceedings should be initiated solely on the complaint of the Tribunal or the Court itself. Of course the scope of clause (b) of subsection (9) of section 25-A is not restricted to such cases only, for there may be cases where there has been non-compliance with the order of the Labour Court, although the period for complying with the order is specified in the order itself. In such cases, presumably, if the Court considers it appropriate, it could file a complaint, against the defaulter under the provisions of clause (b) of subsection (9) though the complainant may not have filed any complaint.
7. In the instant case, since admittedly no period was specified in the order of this Tribunal for giving effect to the order, the matter fell within the scope of clause (b) of subsection (9) and no criminal proceedings could have been initiated save upon the complaint of this Tribunal.
Admittedly, no complaint was filed by this Tribunal, and consequently, the taking of cognizance by the learned Labour Court upon the complaint of the respondent/complainant was invalid. In the case of Akhtar Hussain Bhutta v. Superintendent of Police, F. I. A,. Which went to the Supreme Court, a learned Judge of the High Court at Lahore held that a joint challan by the F.I.A. And the Provincial Drug Inspector was invalid and that the error committed was not merely a technical error or a curable irregularity because in the absence of the prosecution being launched by the Drug Inspector, the Magistrate could not legally take cognizance of the offence under section 190, Cr. P.C.
The Supreme Court, however, in its judgment did not express any opinion on this aspect of the matter, but decided the matter on the plea that there was no evidence to show that the accused, who was a Managing Director of the Company, had in fact manufactured the substandard drug or was responsible for the same.
8. As regards the second contention of Mr. Humayun, namely that in the absence of a complaint having been filed against SASO, the appellants could not be tried and convicted, I find no force. The decision of the Supreme Court in the case of Superintendent of Police, F. I. A. v. Akhtar Hussain Bhutta is distinguishable and would not be applicable to the facts of the present case. There was no evidence in the reported case that the Managing Director was responsible for the manufacture of the substandard drug, whereas in the instant case there is evidence to show that the report for duty was made by the respondent/complainant to the two appellants but they adopted delaying tactics.
9. I also find no substance in the contention of Mr Humayun that the appellant cannot be said to have failed to comply in time with the orders of this Tribunal as the respondent/complainant was reinstated in service with effect from 10th April 1980, though the order itself was passed on 30th May 1980. However, I would not like to dilate upon this aspect of the matter by reason of my finding upon the first contention of Mr. Humayun.
10. In view of my finding that the proceedings before the learned Labour Court were invalid as they were not initiated upon the complaint by this Tribunal, since the case fell to be dealt with under clause (0 of subsection (9) of section 25-A, I would set aside the conviction and sentences passed against the appellants and allow the appeal. PLD 1978 SC 193 1980 P C 1108