DECISION This appeal is directed against the judgment of the learned second Labour Court, delivered on 25th August 1980, convicting the appellants under section 55, I.R.O., for wilfully failing to implement the settlement arrived at between the Welcome Pakistan Limited, hereinafter referred to as the company, and the C.B.A. In the said company, on 16th May 1977, and sentencing each of the four appellants to pay a fine of Rs, 200 or in default to undergo S.I. For 15 days.
2. It appears that on 30th March, 1977 the C.B.A. In the company served a charter of demands. In consequence of the negotiations which followed, a settlement was arrived at between the management and the C.B.A. On 16th May, 1977. The first term of the settlement, which related to grant of service awards, reads as follows :- "It is agreed that the company will grant service rewards in the form of Prize Bonds worth Rs, 350 and Rs, 450 to all the workers covered under Schedule "B of this settlement who completes 10 years or 15 years respectively of continuous service with the company as on 1st January, 1977, or who shall so complete their 10 years or 15 years' service with the company on any date after 1977 : Provided that the said service awards will not be payable in cases of dismissal and that only those workmen will be eligible to receive the said service awards who are on the pay-roll of the company on the date of signing of the agreement or those who are taken in the employment subsequently.
The persons who have already received the service rewards under previous collectively bargained settlement will not be entitled to get this reward under this settlement."
One of the workmen in the company, namely Taus Khan, who is complainant in this case, completed 15 years of service in the company on 31st March, 1978. He, accordingly, requested the company to grant him service award of Rs, 450 in accordance with the above term of the settlement. He, however, was not paid the above service award and instead he was dismissed from service of the company on 31st October, 1978, pursuant to a charge-sheet, dated 17th September, 1978, for remaining absent from duty without authority or permission for more than ten days. Taus Khan filed a grievance petition under section 25-A, I.R.O., against the company challenging his dismissal from service which is still pending adjudication before the learned Labour Court and also filed a complaint against the four appellants under sections 53 and 54, I.R.O., on 30th January, 1979.
3. The learned Labour Court has held that Taus Khan became entitled to the service award, according to the terms of the settlement, dated 16th May, 1977, as soon as he had completed 15 years of continuous service on 31st March, 1978, and the failure of the appellants to grant him the award in spite of his repeated requests in this behalf and instead adopting delaying tactics amounted to wilfully failing to implement the settlement in question and hence the offence under section 55, I.R.O., was fully established against each of the four appellants.
4. I have heard Mr. A. A. Shareef, the learned counsel for the appellants and Mr. Junaid Farooqi, the learned Advocate who appeared for complainant Thus Khan.
5. Mr. A. A. Shareef raised a two-fold objection against the findings of the learned Labour Court and the convictions of the appellants. His first contention was that there was a long-standing practice in the company according to which that list of persons who were eligible to receive the service award was prepared after the close of the calender year and the awards were thereafter distributed in a simple ceremony held in the Office of the Managing Director of the company. He submitted that in the instant case the list of employees eligible to receive the awards was prepared in accordance with the normal practice on 11th April, 1979, and they actually received the service awards in the Office of the Managing Director of the company on 15th April, 1979. The learned counsel accordingly argued that there was neither any undue delay on the part of the appellants to implement the settlement nor can the appellants be said to have been motivated by main fides. His second contention was that according to the settlement itself, employees who were dismissed from service were not entitled to the payment of service award and since Taus Khan was dismissed from service before the compilation of the list of the persons eligible to receive the service awards for the period ending 31st December, 1978, he was not rightly paid the service award under the settlement.
6. On the other hand, Mr. Junaid Farooqui strongly urged that Taus Khan became eligible to receive the service award for completing 15 years continuous service on 31st March, 1978 and the failure of the appellants to pay him the award in spite of his repeated demands constituted wilful non- compliance of the settlement. The learned counsel argued that the company was bound to pay the service awards to the employees eligible to receive the same within a reasonable time and the failure of the appellants to pay Taus Khan his award even up to the date of his dismissal on 31st October, 1978, 7, months later cannot be considered to be a reasonable period for compliance of the terms of the settlement. He further argued that the dismissal of Taus Khan after he became eligible to receive the service award did not take away his right to the payment of the award as according to the settlement only those persons who were dismissed prior to 1st January, 1977, were not eligible to receive service awards even if they had completed 10 or 15 years continuous service in the company.
7. Two issues, thus, appear to fall to be considered in the instant case. They are :-
(i) Whether the practice in the company of preparing at the end of each calender year the list of persons who have become eligible during the year to receive the service awards and thereafter waiting for some further time before paying the awards to the eligible persons is in accord with or in violation of the terms of the settlement ?
(ii) Which is the class of persons that is not eligible to payment of the award on account of dismissal ?
8. Now although the settlement clearly provides that any employees who completes then or more years of continuous service with the company on 1st January, 1977, or any date thereafter will be entitled to grant of service award it does not specifically provides when the service award would be actually paid to the eligible persons. The normal rule of interpretation and construction of documents is that where no specific period is provided for doing of any act or the fulfilling of any obligation the same is required to be done or performed within a reasonable time. In the instant case, as already pointed out, Taus Khan became eligible to receive the service award on completing 15 years of continuous service on 31st March, 1978. However the admitted position is that he did not receive the award and instead was dismissed from service for misconduct on 31st October, 1978, on the charge-sheet, dated 17th September, 1978. It would thus, on a superficial consideration of the matter, appear that there was unreasonable delay on the part of the management in paying the award to Taus Khan and fulfilling their obligation under the settlement, However, the other side of the picture cannot be lightly ignored. It has been established that the earlier settlement between the management and the C.B.A. Contains substantially similar provisions regarding the payment of service awards as under the settlement, dated 16th May, 1977, and that a consistent practice had developed in the company, which was not objected to by the C.B.A. Or any employee, that the list of persons eligible to receive service awards during the year was prepared sometime after the close of the year and thereafter the awards were distributed in a ceremony. In the case of Said Saigol v. Khursheed Hassan (PLD 1964 SC 598), the Supreme Court has held that subsequent conduct of the party is a relevant, factor for the construction of a document. On the basis of this observation, my learned predecessor, in the case of Staff Union v.
M/s. International General Insurance Company of Pakistan Ltd. (1975 PLC 92), declined to accept the interpretation sought to be placed on the settlement arrived at between the staff union and the management on the clause "be paid alongwith" as meaning "exclusive of", mainly on the ground that the union had kept quiet for about four months before asking for interpretation of the settlement and during this period did not appear to have questioned the contrary interpretation of the management that the clause means "inclusive of". Since the C.B.A. Appears to have acquiesced in the practice prevailing in the company regarding preparation of the list of persons entitled to receive the service awards, the company cannot at least be considered to be criminally liable or to have wilfully failed to implement the settlement by reason of following the said practice, as mens rea, which is an essential ingredient of a criminal offence cannot be attributed to it for following the said practice.
9. It next falls to be considered how the provision in the proviso, namely that the service awards will not be payable in cases of dismissal and that only those workmen will be eligible to receive the said service awards who are on the pay-roll of the company on the date of signing of agreement or those who are taken in the employment subsequently, is to be construed. According to Mr. Junaid Farooqui since the proviso expressly makes the persons who are on the pay-roll of the company on the date of signing of the agreement or those who are taken in the employment subsequently eligible to receive the service awards, on completion of 10 years or 15 years continuous service, as the case may be, on or after 1st January, 1977, the cases of dismissal, which are excluded from payment of service award, must necessarily refer to those which had taken place prior to 1st January, 1977. His argument, in other words, was that the subsequent clause, specifying the persons who were eligible, clarifies and limits the persons who are not eligible to receive the awards by reasons of dismissal. In my view, the correct interpretation of the provision in the settlement relating to service awards, including the proviso would appear to be that it first speaks of persons who are eligible to receive the award and next it excludes the persons who are not entitled to receive the award. There are two classes of persons who are excluded from payment of the award though they may have completed 10 or 15 years continuous service and thus become otherwise eligible to receive the award. The first class is those who are dismissed from service and I will deal with this class in some detail later. The other class is of those employees who have resigned, otherwise left service or has for any reason ceased to be on the pay-roll of the company on or before 16th May, 1977, when the settlement was signed. Persons who were dismissed from service prior to 1st January, 1977, and were not taken back in service prior to the date of the settlement, i,e,, 16th May, 1977, clearly fall within the second class of employees who are not entitled to payment of the service awards though they may have completed 10 or 15 years continuous service and hence the first class of persons who have been dismissed from service would obviously refer to a separate category of employees. This category would obviously be of those employees who were dismissed from service on or after 16th May, 1977, although they may have completed 10 or 15 years of continuous service. The settlement, thus, seems to envisage non- payment of service awards to persons dismissed from service after they had become eligible to receive the service by reason of completing 10 or 15 years continuous service. Even if this be not the sole interpretation which can be placed on the provision in the settlement excluding persons dismissed from service from payment of the service awards, it is at least a reasonable construction and consequently cannot be lightly brushed aside. It is a cardinal principle in the dispensation of criminal justice that if there are two reasonable constructions the more lenient one or the one more favourable to the accused should be adopted.
10. It may further be pointed out that an offence under section 55, I.R.O., consists of wilfully failing to implement the term of a settlement. Mens rea, thus, is an essential ingredient of the offence. Even otherwise, in the case of criminal offences, mens rea is an essential ingredient unless it is expressly excluded. In the case of Pakistan v. Hardcastle Waud (Pak.) Ltd. (PLD 1967 SC 1), their Lordships observed as follows :- "Even in the case of a statutory offence the presumption is that mens rea is an essential ingredient unless the statute creating the offence by express terms of by necessary implication rules it out.
The more omission of the word "knowingly" or "intentionally" is not sufficient to rebut this presumption for all that such words do is to say expressly what is normally implied. Thus where the words used in the statute are not clear or unambiguous an examination of the general scheme and object of the statute becomes necessary to determine whether the general rule of liability has been departed from. In some cases even the quantum of the punishment has been taken into account for determining this question, though this by itself cannot, in my view, be conclusive."
In the instant miens rea on the part of the appellants is wholly lacking. They merely appear to have acted in accordance with the established past practice which was not objected to by the C.B.A.
And to have interpreted the term of the settlement not in a unreasonable manner. At least it has not been established that they have wilfully failed to implement the said term.
11. Arguments were addressed at length before this Tribunal by both the learned counsel in regard to the effect of failure of the learned Labour Court, though applications in this behalf were made to it by the learned counsel of the appellants, to refer to this Tribunal the question of interpretation of the settlement, as there was admittedly a doubt or difficulty in regard to its interpretation, but I do not consider it necessary to deal with those arguments as, firstly, in my opinion, no mens rea on the part of the appellants has been established, and secondly, even according to Mr. Muhammad Junaid Farooqui, the learned counsel for complainant, Taus Khan, the provision in the settlement regarding dismissal is not only unhappily worded but is also ambiguous.
12. The upshot of the above discussion is that, in my opinion, the offence against the appellants has not been established and, I wou1d accordingly, give the benefit of doubt to the appellants and would set aside their convictions and sentences. The fine paid by them should return.