ALI SAIN DINO METLO, MEMBER.--- The appellant has challenged order, dated 06 January, 2017, of the Sindh Labour Court No.05, Karachi, acquitting the respondents of the offence of not implementing its consent order for his reinstatement in service without back benefits passed in his grievance Application No.04 of 2015, on 2nd February 2016.
2. Briefly, the facts are that the appellant, claiming to be a permanent workman of the respondents, filed the grievance application in the Labour Court, for his reinstatement in service with back benefits, alleging that the respondents had removed him from service wrongfully. On the basis of a joint statement of the parties to the effect that the respondents shall reinstate the appellant in service without back benefits, the matter was disposed of on 02 February, 2016.
3. According to the appellant, the respondents refused to reinstate him in service. He, therefore, filed a complaint, No.2 of 2016 for punishing the respondents for not implementing the consent order of the court.
4. On 23 April 2016, learned representative for the appellant filed statement for disposing of the complaint as not pressed, because the appellant was not in contact with him and was also not present in court. On the basis of such statement the Labour Court dismissed the complaint as not pressed. In substance, it was dismissal for non-prosecution and not withdrawal of the complaint, because the representative had stated that the appellant was not in contact with him and was also not present in court. He did not state that he had the instruction or authority to withdraw the complaint.
5. On 25 October, 2016, the appellant filed fresh complaint. The Labour Court, under the impugned order, acquitted the respondents on the ground that after disposal of his first complaint the appellant could not file fresh complaint, as it amounted to double jeopardy prohibited by Article 13 of the Constitution and Section 403 of the Code of Criminal Procedure, 1898 (Cr.P.C.). In support of its order, the Labour Court cited a decision of the Supreme Court in the case of Sherin Bacha and others v. Namoos Iqbal and 3 others reported in PLD 1993 SC 247.
6. Article 13 of the Constitution and Section 403 of the C.P.C. provide that a person once tried and acquitted cannot be retried for the same offence. The cited decision of the Supreme Court is also to the same effect. The acquittal must be on merits. Acquittal not on merits will not bar fresh trial.
For this, reference may be made to the case of Jahangir Malik v. The State reported in 2005 YLR 3258 Karachi (DB). Reference may also be made to the case of Ibrar Hussain Shah v. Syed Waris Shah, reported in 2015 PCr.LJ 784 (Lahore) in which it has been held that the principle of double jeopardy would apply when there is trial ending in acquittal or conviction.
7. In this case the respondents were neither tried nor convicted or acquitted and, therefore, the principle of double jeopardy will not apply. The decision of the Supreme Court in the case of Sherin Bacha is not applicable to this case as in that case the accused were tried and acquitted. Disposal of the appellant's earlier complaint on 23rd April, 2016, due to his absence and lack of contact with his representative, cannot be treated as trial and acquittal of the respondents, not to talk of their acquittal on merits.
8. Learned counsel for the respondents argued that the appeal was not maintainable as Section 47(3) of the Sindh Industrial Relations Act, 2013 (SIRA), provided right of appeal against award, decision or sentence and not against an order of acquittal passed by a Labour Court. He further argued that the impugned order, having been passed in a criminal complaint and not in a proceeding of civil nature, was also not amenable to revisional jurisdiction of this Tribunal under section 48(5) of the SIRA. In support of his contentions he cited the case of M. Maroof v.
Muhammad Akram and 2 otheRs. reported in 1983 PLC 411 Karachi (DB). He also argued that the Tribunal cannot exercise revisional jurisdiction on application of a party and cited decision of this Tribunal in the case of Jamal v. Mst. Taj Bakht and another, reported in (1981 PLC 378).
9. Learned counsel for the respondents also argued that the appellant was not interested to join the service and simply wanted to harass and humiliate the respondents.
10. Section 48(5) of the SIRA does not make any distinction between orders passed by a Labour Court in proceedings of civil or criminal nature. Its orders are amenable to revisional jurisdiction of this Tribunal irrespective whether they are passed in proceedings of civil or criminal nature. The decision of the High Court of Sindh in the case of M. Maroof is not applicable to this case, as in that case the Labour Court had passed order and overruled objection to the maintainability of the complaint in 1975, when this Tribunal was not invested with revisional jurisdiction. It was, therefore, that the High Court had observed that the order of the Labour Court was not subject to revision. The revisional jurisdiction was conferred on this Tribunal for the first time in 1977 by adding subsection (3a) to Section 38 of the Industrial Relations Ordinance, 1969.
11. The contention of learned counsel for the respondents that this Tribunal cannot exercise revisional jurisdiction on motion of a party and decision of this Tribunal in Jamal's case cited by him are without any force, as they are not consistent with the decision of the Supreme Court in the case of Norwich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another, reported in 1986 SCM R 1071. The Hon'ble Supreme Court has clearly held that this Tribunal can exercise its revisional jurisdiction on motion of a party.
12. Admittedly, the consent order for reinstatement of the appellant in service without back benefits has not been acted upon. The question in controversy whether the appellant was not interested in reinstatement in service or the respondents were not reinstating him in service has riot been decided by the Labour Court. In order to protect sanctity of court orders and the rights acquired under them, it is necessary to decide the question and dispose of the case on merits. This is, therefore, a fit case for exercise of revisional jurisdiction by this Tribunal.
13. Accordingly, the appeal is converted into revision and the impugned order which is not sustainable in law is set aside. The case is remanded to the Labour Court for disposal according to law. The Labour Court is directed to dispose of the case within two months under intimation to this Tribunal.