1. ' The above appeal has been filed by the appellant against his conviction under section 36(E) of Industrial Relations Ordinance, 1969, by 1st Sind Labour Court at Karachi vide Judgment dated 1st January, 1976 in complaint No, 80/75, by which he has been sentenced to suffer S.I. For three months and a fine of Rs, 1,000/- or in default to suffer S.I. For one month more, on the following facts and grounds :- ' One Sakhawat Ali, the General Secretary and the worker of A. G. Silk Mills Workers Union, Karachi had filed a direct complaint No, 80/75 on 11th October, 1975 under section 36(E) of I.R.O., 1969, in the Court of Sind Labour Court at Karachi, alleging that he was a workman and General Secretary of M/s. A. G. Silk Mills Workers Union and the appellant was a managing partner of the establishment in question and was fully responsible for all administrative and financial affairs of M/s. A. G. Silk Mills, Karachi and that the complainant, alongwith 25 others workers had instituted proceedings against the employees' establishment under section 25-A of I.R.O., 1969 praying for the statutory bonus under section 10-C of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that the Junior Labour Court No, H, Karachi, vide his ex parte order dated 12th July, 1975 had decided, that the establishment should pay the statutory bonus, but the appellant had neither implemented the said order nor he had preferred an appeal against the said order and in spite of several approaches made by the workers and complainant the appellant had wilfully failed to comply with order dated 12th July, 1975 and had, therefore, committed an offence under section 36-E of I.R.O., 1969.
2. ' The defence of the appellant was that on 15th November, 1974, the appellant had taken over the possession of the mill by the order of the High Court from his uncle Mohammad Bhai and the bonus which has been claimed by the workers was of that period when the mill was in the hands of Mohammad Bhai. And that the appellant has no funds available to meet the demands of the workers and that the mill was lying sealed by the C.D.C. For non-payment of dues and the electricity of the said mill was disconnected and that the licence for raw material of Art Silk Yarn ha 1 been cancelled by the Controller of Import & Export and that the appellant had also moved the Labour Court for the permission to close down the mill as it has been running under heavy loss.
3. Previously, the appellant had paid the wages of the workers by selling the ornaments of his wife and his own Motor cycle and, therefore, the non-implementation of the order was not wilful but beyond the control of the appellant. The appellant further contended that at the instance of Mohammad Bhai, the General Secretary Sakhawat Ali had filed the impugned complaint and other proceedings against him.
4. ' The prosecution had examined two witnesses. The statement of the appellant under section 342, Cr.P.C. Was recorded and the charge was framed against the appellant, he was ultimately convicted by 1st Sind Labour Court vide Judgment dated 1st January, 1976 as mentioned above.
5. ' The appellant has preferred this appeal on the following grounds :-
(1) The Appellant submits that section 36-E of the Industrial Relations Ordinance is applicable only, if an order or direction under section 36-B or a decision under section 36-D is not given effect to or complied with, whereas section 36-D deals with an appeal. Section 36-8(2) can be attracted only if the order is made within 7 days from the date of the matter brought before the Court. The proceedings before the Junior Court remained pending for more than 7 days, therefore the Appellant's conviction, under section 36-E is illegal.
(2) The Appellant submits that section 36-E of the Industrial Relations Ordinance under which the Appellant had been convicted, can be attracted only if the order or direction given under the Industrial Relations Ordinance, 1969 are not complied with. For non-compliance of order under section 10-C of West Pakistan Industrial and Commercial Employment (Standing Orders)
6. Ordinance, 1968, the Appellant cannot be convicted under Industrial Relations Ordinance, 1969. The conviction and sentence is therefore illegal.
(3) The Appellant submits that the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 is a Provincial Statute under which the impugned ex parte order had been passed but the Appellant had been convicted for its non-compliance under the Central Statute.
(4) The Appellant submits that the bonus claimed by the workers was of the period before he took over the charge. The Appellant had no funds in his hand to pay the bonus. Previous dues of the workers, he had paid by selling his Motor Cycle and the ornaments of his wife.
7. ' The Mill is attached and sealed by C.D.C. The Licence of Raw material i,e, Art Silk Yarn had been cancelled by the Government of Pakistan, before he took over the control. The establishment stands closed and previously ran on loss. The non-implementation of ex parte order is without any criminal intention and on account of misfortune.
(5) The Appellant submits that the entire proceedings had been filed are prosecuted mala fide at the finance and instance of Mohammad Bhai who also claims to be the Partner of the Mill.
(6) The Appellant submits that a written compromise had been made between the appellant and the Workers wherein the workers had given undertaking that they would not press for the bonus in question. The said writing has not been brought on the record of the trial Court and is being filed with this Appeal in this honourable Court.
8. The first contention raised by the learned Advocate for appellant was that since the trial Court failed to dispose of the matter before it within 7 days in accordance with the provisions of section 36-B(2) of I.R.O , 1969, the provisions of section 36-E were not at all attracted and as such appellant's conviction under the said section 36 (E) is illegal. In my opinion this contention of the learned Advocate for the appellant has no force at all, as period of seven days mentioned in section 36-3(2) is only directive and as such would not make the orders of Junior Labour Court illegal on this ground alone.
9. ' The second contention raised by the learned Advocate for appellant was that non-compliance of orders passed in respect of section 10-C of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968, cannot be taken cognizance of under section 36-E of I.R.O. 1969, as the said section is only available for trial in cases of the violation of the provisions of I.R.O., 1969, only. This contention of the learned Advocate for the appellant also has no force at all. It is true that on account of appellant's failure to pay statutory bonus under section 10-C of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the proceedings were initiated by the workers of the appellant's establishment under section 25-A of I.R.O., 1969, before the Junior Labour Court and the said Court after taking into consideration the evidence that was led before it as well as the case put up by the appellant through cross-examination of prosecution witnesses and his written statement which was filed by him in the said proceedings, by its well- considered order dated 12th July, 1975, allowed the applications of the workers under section 10-C of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 and directed payment of Bonus for the year 1974 to the workers of the appellant's establishment. This order of the Junior Labour Court, Karachi was obviously passed under section 36-B of I.R.O., 1969 and appellant under section 36-D of I.R.O., 1969 had a right to file appeal against the said order, which admittedly he did not file for the reasons best known to the appellant and as such the said order became final and cannot now be challenged in this appeal, on merits. In view of this, on non- compliance of the order dated 12th July, 1975, of the Junior Labour Court, Karachi, the proceeding initiated against the appellant under section 36-E of 1.R.O., 1969 were rightly initiated by the complainant under section 36-F (a).
10. The third contention of the learned Advocate for the appellant that for violation of the provisions of section 10-C of Standing Orders, 1968, a provincial law, appellant cannot be punished under I.R.O., 1969, which is Central Statute, has also no force, as non-compliance of section 10 C of Standing Orders, 1968 gave a right to workers to initiate proceedings against the management of the establishment under section 25-A of I.R.O., 1969, before Junior Labour Court under section 36-B and consequently once such proceedings were initiated and orders passed in pursuance of said proceedings, the violation of such orders in my opinion attracted the provisions of section 36-E of I.R.O., 1969, irrespective of the fact that original grievance of the workers was under section 10-C of Standing Orders, 1968, the provincial law. The learned Advocate for the appellant was not in a position to cite any case law in support of his above contention.
11. ' The fourth contention raised by the learned Advocate for the appellant was that there was no wilful default in compliance with the orders dated 12th July, 1975, as appellant had no funds to pay Bonus and the bonus related to the period when appellant was not in charge of the establishment.
12. The learned Advocate for the appellant further submitted that establishment was in loss and had to be closed down due to the said reason on account of cancellation of licence for raw material and as such order dated 12th July, 1975 which is the basis of appellant's conviction cannot 5e sustained in law. This contention of the learned counsel for the appellant has also no force. All these contentions which have been raised before this Court were in fact raised by the appellant before Junior Labour Court before passing of orders dated 12th July, 1975, which is evident from the said order. However the appellant could have challenged the said order dated 12th July, 1975, by way of appeal under section 36-D of I. R.0 1969 but he did not do so and as such the said order became final and therefore the same cannot be challenged in this appeal, which is against the appellant's conviction only, under section 36.E of I.R.O., 1969, admittedly for non-compliance with orders dated 12th July, 1975 of the Junior Labour Court, Karachi. This Court is not competent to hear appeal against order dated 12th July, 1975 under section 36(3) of I.R.O 1969. The said order dated 12th July, 1975 could have been challenged in appeal only, under section 36-D of I.R.O., 1969, but appellant didl not prefer any such appeal against the said order, although this remedy was available to him and as such the said order has become final and cannot be questioned in this appeal.
13. ' The last contention raised by the learned Advocate for the appellant before this Court was that there was agreement between the appellant and workers dated 4th February, 1975, according to which workers had agreed not to claim bonus in question for the year, 19 74 and as such appellant's conviction for non-payment of bonus is not warranted. This contention of the learned Advocate for the appellant has also no force at all. The copy of said alleged agreement has been filed with above appeal, without giving any reasons, why the same was not produced before Junior Labour Court in proceedings initiated for payment of Bonus by the workers. As already stated above this is not an appeal against the order dated 12th July, 1975 and consequently this Court cannot take into consideration this alleged agreement in this appeal, even if it really exists.
14. ' In the end the learned Advocate for the appellant without prejudice to his above contentions urged before me that in view of the facts and circumstances of the entire matter, the sentence awarded to appellant was very harsh and as such requires re-consideration by this Court in the interest of justice.
15. In view of my above conclusions on the various points which were only raised before me by the learned counsel for the appellant, I see no reason to interfere with the judgment dated 1st January, 1976 of the 1st Sind Labour Court, Karachi, except as far as the sentence awarded to the appellant.
16. In view of facts and circumstances which were responsible for appellant's failure to comply with order dated 12th July, 1975 of the Junior Labour Court, Karachi, as disclosed in appellant's written reply before Junior Labour Court, I would only set aside sentence of imprisonment awarded to the appellant by the Sind Labour Court, Karachi, and maintain the fine of Rs, 1,000/- imposed on the appellant and allow the above appeal to this extent only.