' The record and proceedings in 4 cases, filed by the then C.B.A. In the Defence Officers Co- operative Housing Society, to which I will refer as the Society, and the workmen employed in the said Society, against the Society and its Secretary, Zafar Ali Khan, have been called up from the learned Labour Court No, V, where they were pending, in the exercise of the suo molu powers of this Tribunal under subsection (3-a) of section 38, I. R.
0., for the purpose of satisfying itself as to the correctness, legality and propriety of the proceedings and the orders passed therein.
2. In the first case, being Application No, 2/80, which has been instituted by the then C. B. A. In the Society through its then General Secretary, Ashfaq Ahmad Mujahid, against the Society under section 34, I. R.
0., it is alleged that the Society has failed to implement the terms of the agreements entered into by the Society with the C, B. A. On 10th May, 1972, 20th May, 1974, June, 1976 and May, 1979, in respect of allotment of plots to the employees of the Society, setting up of provident funds for such employees and the grant of group insurance to them anti invoked the authority of the Court to direct the Society to implement the terms of the aforesaid settlements from the dates the said settlements came into force. The 3 remaining cases, being Complaints Nos. 00, 2/80 and 3/80, are all by Ghulam Sarwar, the General Secretary of the then C.
13. A. In the Society, against Zafar All Khan, the Secretary of the Society under section 62, I. R.
0. Respectively alleging that the said Secretary of the Society violated the provisions of sections 23, 23-A and 24, I. R.
0., in that, despite repeated demands by the C. B. A., he failed to realize the union funds from the employees of the Society who were members of the union and instead directed the General Secretary of the Union to realize the Union's subscriptions at the time of disbursement of wages and to deposit the same with the Manager for handing over to the union, further failed to establish the forum of shop stewards in the establishment though the names of the representatives of the workmen were communicated to him, and also failed to establish the forum of works council in the establishment in violation of the provisions of section 24,
1. R.
0.
3. At this stage it will be appropriate to mention that by the Pakistan Defence Officers Housing Authority Order, 1980, made by the President and published in the Gazette of Pakistan, dated 9th August, 1980, hereinafter referred as the Order, the Society, has been dissolved and the Pakistan Defence Officers Housing Authority, hereinafter referred to as the Authority has been set up with wide ranging powers in respect of acquisition of land, allotment and cancellation of allotments of plots and other matters which were being dealt with or were in the purview of the Society. Clause
(3) of the Order provides that its provisions will override not only the memorandum and articles of association of the Society or of the Foundation but also any other law for the time being in force.
The application of the I. R.
0. Or any other law relating to Labour has been expressly made inapplicable to the Authority or any of the employees, functionaries, officers, experts, consultants or advisor of the Society. Sub-clause
(g) of clause 17 of the Order provide that all suits, petitions and other legal proceedings instituted against the Society before its dissolution shall be deemed to be the suits, petitions and proceedings by or against the Authority and shall be proceeded or otherwise dealt accordingly.
Clause 19 of the Order is also important as it provides that no suit, prosecution of other legal proceeding shall lie against the Chairman, President, Administrator, member of the governing body, or executive Board or any officer, employee, functionary, expert, consultant or advisor of the Authority for anything which is in good faith done or intended to be done under this Order or under the rules or regulations framed thereunder.
4. On the promulgation of the order, objection was raised on b:-half of the Society to the maintainability of the above 4 cases against the Society on the score that the employees of the Society had become the employees of the Authority and the proceedings against the Society are to be deemed to be proceedings under the Order against the Authority, but the applicability of the I. R.
0. And the Labour Laws to the Authority and its employees had been expressly excluded by the Order. It was also contended on behalf of the Society that the 4 suits were further not maintainable and should be deemed to have abated by reason of the indemnity under the to the Authority and its officers. These objections were repelled by the learned Labour Court by its order, dated 8th January, 1981, on the ground that the Order was prospective in operation while the 4 cases pertained to infringements of rights which had occurred long before the Order was made and promulgated.
5. I have heard Mr. Wazir H. Rizvi, the learned counsel for the Authority/Society, and Mr. S. P. Lodhi, who appeared for the union in the Society and the persons who had filed the criminal complaints against the Secretary of the Society.
6. It was submitted by Mr. Wazir H. Rizvi that in consequence of the promulgation of the Order, making the I. R.
0. And the Labour Laws inapplicable to the employees of the Society, who had now become the employees of the Authority, the registration of the Pakistan Defence Officers Society Employees'
Union, which had instituted the proceedings under section 34, I. R.
0., against the Society had been cancelled, and since it had ceased to be illegal entity, it was no longer competent to pursue and maintain the proceedings against the Authority, As regards the 3 criminal complaints against the Society, the learned counsel submitted that as the complaints were made by the General Secretary of the C.B.A., Employees' Union, which had ceased to exist, there was, in law, no complainant and consequently the proceedings in these 3 criminal cases must also abate.
7. Section 34,
1. R.
0., entitles a C. B. A. To apply to the Labour Court for the enforcement of any right guaranteed or secured to it. A C. B. A. Must, therefore, continue to exist in the establishment concerned throughout the proceedings under section 34, I. R.
0., for if there is no C. B. A., no question of enforcement of its guaranteed or secured rights can arise as no rights can be conferred upon or enjoyed by any legal entity which has ceased to exist and has no successor, as in the present case. Similar view was taken by this Tribunal in the case of Champion Textile Mills Ltd. v. Champion Textile Mills Employees' Union, decided on 27th January, 1980. In that case, the workers' union, which was the C. B. A., in the establishment, had filed an application under section 34, I. R.
0., for the payment of wages and other legal dues to the workers whose services had been terminated. However, during the pendency of the said application, the registration of the workers' union was cancelled by the Registrar, Trade Unions, on the ground that it had ceased to exist. The management thereupon applied to the learned Labour Court for dismissing the application under section 34 of the workers' union but its application was rejected on the ground that at the time when the workers' union, had filed the application under section 34, I. R. 0 , it was the duly declared C.B.A. On appeal to this Tribunal, the said view was expressly dissented from and while holding that the proceedings had abated upon the cancellation of the registration of the workers' union, it was held as follows :- "An application under section 34 is not only required to be filed by the C. B. A. Or an employer but further can only be for the enforcement of any right guaranteed or secured to it or him by any law, award or settlement . If any relief is to be granted to the party making such an application, the right claimed by it must continue to subsist at the time of the decision. Obviously no relief can be granted to a party if at the time of the decision it has ceased to be entitled to the relief or the right claimed by Since in the instant case, the respondent union had ceased to exist and to be a legal entity, not only it could have no right, which could be enforced by the Labour Court, but further it could no longer institute, maintain or continue any legal proceedings. The case would be akin to the death of a party who was pursuing a cause of action which was personal to it. In the case of Karachi Shipyard and Engineering Works v. Mn. Shamim Akhtar, decided on 16th December, 1979, this Tribunal has held that an application filed by a worker under section 25-A, 1.R.
0., abated on his death as such an application can only be filed and maintained by the worker himself and not by his successors. A more pertinent decision is the one in the case of National Steel Mills v. National Steel Employees' Union (P. L. J. 1973 Tr. Cases (Lab.) page 93). In that case, an application purporting to be under section 34, I. R.
0., was filed by the General Secretary of the C. B. A. However, during the pendency of the proceedings on that application, the union lost its character as the C.B.A. It was held by my learned predecessor that the union, upon losing the character of the collective bargaining agent, could not continue the proceedings and must either withdraw or apply to the Court for being substituted by a new C.B.A. In the instant case, the position of the appellant union is much worse as its very registration has been cancelled and accordingly it has ceased to exist as a legal entity.
Furthermore, no application was made by it for substitution in its place of the new collective bargaining agent. As such, the proceedings before the learned Labour Court must abate."
8. Although the view taken by the learned Labour Court is undoubtedly correct that the Order is prospective in operation in view of the fact that the registration of the workers 'union in the Society/Authority has been cancelled and there is now no longer any possibility of a C. B. A. Being formed or declared in the establishment of the Authority. I would, for the reasons stated above, hold that the proceedings arising out of the application under section 34, I .R.
0., filed by the C. B. A. Have abated.
9. As regards the 3 criminal cases instituted against the Secretary of the Society, as already mentioned, all of them have been filed by Ghulam Sarwar, the then General Secretary of the C. B. A.
In the Society. It was strongly. Contended by Mr. Rizvi, the learned counsel for the Authority, that the said complaints have been filed by Ghulam Sarwar in his capacity as the General Secretary of the C. B. A. And as the C. B. A. Has ceased to exist in the establishment of the Authority, there is no longer any complainant in these cases and, therefore, the 3 com- plaints should be deemed to have abated. On the other hand, it was contended by Mr. S. P. Lodhi, on behalf of the workmen that were complaints had been filed by Ghulam Sarwar in his individual capacity and there is nothing in the complaints to suggest that they had been filed on behalf of the C. B. A. It is true that in none of the complaints in the 3 crimina1 Cases. It is expressly stated that the complaints have been filed either by the Society, or on behalf of the Society by its General Secretary, but the very fact that the complainant in these 3 cases has been shown as Ghulam Sarwar, General Secretary, Defence Society Club Employees Welfare Union (registered), coupled with the further fact that the complaints are on behalf of the workers generally and there appears to be no individual grievance of Ghulam Sarwar, seems to suggest that the complaints are really on behalf of the C. B. A. And not by Ghulam Sarwar in his individual capacity. But even if this view is not well founded, then also the complaints are liable to be dismissed and the accused acquitted for another very cogent reason. A perusal of the records in the 3 complaint cases indicates that on a number of occasions, including the hearings on 4th February, 18th March, 5th April, 13th April, and 28th April, 1981, the complainant was absent. Section 247, Cr. P. C. Provides for the acquittal of an accused if the complainant fails to appear on the date of hearing. The said section reads as follows :- "S. 247.-Non-appearance of complainant.-If the summons has been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:- ' Provided that, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case: ' Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable."
10. The essential conditions for the application of the above section are, firstly, that summons should have been issued on the complaint, secondly that the complaint must be by a private person and not by a public servant. Thirdly that the complainant should have failed to appear on the date of hearing, fourthly, that the offence of which the accused is charged should be neither cognizable nor non-compoundable, and fifthly, the hearing of the case should not have been adjourned for some appropriate reasons. All these circumstances and conditions appear to have been fulfilled in complaint case No, 1/80, in which process namely summons was ordered to be issued against accused Zafar Ali Khan on 4th August, 1980. The offence under section 23, I. R.
0., read with section 62,
1. R.
0., is punishable with fine not exceeding Rs, 200 and is, therefore, non-cognizable under the second schedule to the Criminal Procedure Code and also compoundable by reason of the provisions of subsection (5) of section 36, I. R.
0. I would, therefore, hold that the accused was entitled to be acquitted under section 147, Cr. P. C.
By reason of the repeated non-appearance of the complainant on the dates of the hearing and acquit him accordingly.
11. The position in the 2 remaining complaint cases is substantially similar. By reason of the repeated non-appearance of the complainant, the 2 complaints were also liable to be dismissed.
At least on 2 of the hearings on which the complainant was absent i. e., on 18th February, 1981, and 18th March, 1981, neither an application was submitted on behalf of the complainant for excusing his absence nor is there anything on record to suggest that there was a valid ground for his absence. Moreover, on the hearing fixed for 28th April, 1981, the complainant as well as his counsel/representative was absent and no application for excusing the absence of the complainant was filed. The 2 complaints should accordingly have been dismissed due to the absence of the complainant. I am, therefore, of the view that the continuance of the proceedings in spite of the repeated failure of the complainant to appear without even caring to submit an application in this behalf is not only inappropriate but not in accordance with the law. In the exercise' of the suo motu provisional powers of this Tribunal, I would dismiss both the complaints.