Muhammad Ismail, petitioner, has felt aggrieved by the order of Ghulam Rasool K. Shaikh, now Judge of the High Court, passed in his capacity as Chairman of the Industrial Court on the 13th of August 1968, whereby his application under section 35 of the Industrial Disputes Ordinance, 1968, filed against Mian Ejaz Ahmad, respondent, seeking his conviction for the alleged violation of section 37 of the Ordinance was dismissed.
2. The short background of the case is that Muhammad Ismail, petitioner, a member of the work charge establishment in the P. W. D. Irrigation Workshop, Mughalpura and employed as a pattern maker, was allegedly removed from service on the 27th of June 1968, by the respondent, who is the Executive Engineer, Incharge of the Irrigation Workshop, without having issued to him any notice or order in writing. It may be pointed out in this context that the petitioner is separately pursuing a remedy for his re-instatement available to him under the law. His sole object, however, in approaching the Industrial Court under section 35 of the West Pakistan Industrial Courts Ordinance, 1968 was to get the respondent convicted and punished for having removed the petitioner from service in violation of the provision contained in section 37 of the Ordinance during the pendency of an industrial dispute. The Industrial Court dismissed the petition on a two-fold ground, firstly that no violation of section 37 made punishable under section 36 was established and secondly the respondent being a Government servant could not be prosecuted without the previous sanction of the Government as laid down in section 197 of the Cr. P. C. which sanction had not been obtained.
3. In answer to the preliminary objection that the respondent's prosecution was not maintainable in the absence of a proper sanction from the Government, it is contended by the representative of the petitioner that the alleged offence of removing the petitioner from service having been committed by the respondent in flagrant disregard of the procedure laid down in the Standing Order No, 12 of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance of 1960, the respondent could not be deemed to have acted in discharge of his official duty, and as such, the protection available to Government servants in the form of the sanction of the Government as condition precedent to the prosecution would not be available to him. On the factual plane it is submitted that notwithstanding the fact that he was a member of the work charge establishment, the petitioner was covered by the definition of the expression "workman" who was concerned in a pending industrial dispute and as such could not be dismissed except for misconduct unconnected with such dispute. It is argued that no notice or charge-sheet whatever was served on the petitioner alleging any misconduct on his part unconnected with the industrial dispute.
4. There appears to be several hurdles and quite formidable too in the way of the petitioner before he succeeds in the matter. In the first instance, the allegations brought by him against the respondent relate to the violation of the provision contained in section 37 of the Ordinance which have been made punishable under section 35, and as such, the impugned order was passed by the Industrial Court under section 35 in contradistinction to a decision under section 37 which relates to the disposal of an application by the Management seeking permission of the Industrial Court for the discharge and dismissal of a workman during the pendency of an industrial dispute on the ground of misconduct unconnected with an industrial dispute, which has been made appealable under clause (c), subsection (1) of section 16 of the Ordinance. A perusal of subsection
(2) of section 16 would clearly show that any decision of the Industrial Court other than an award or a decision under section 26 or section 37 shall be final and not questionable before any judicial authority including the High Court. Since, obviously, the impugned order in this case was passed by the Industrial Court under section 35 a finality would attach to the same as dealy laid down in the above provision. Support is lent to this view by a judgment of my learned brother, Anwarul Haq, J., in Sakhi Muhammad v. Wajid Ali and another, wherein his Lordship after considering the provisions contained in sections 11, 12, 26 and 28 of the Industrial Disputes Ordinance, 1959 corresponding respectively to provisions of sections 12, 16, 33 and 35 of the Ordinance of 1968 came to the conclusion that the revisional jurisdiction of the High Court could not be spelt out in respect of decision of the Industrial Court given by it under the Ordinance. While dealing with this aspect of the matter, his Lordship placed reliance on Kumar Singh Chhajar and others v. Emperor and Banwari Gope and others v. Emperor. On the contrary it was contended by the learned Representative of the petitioner that since under subsection (3) of section 12 of the Ordinance, the order under appeal passed by the Industrial Court could be deemed to have been passed by the Court of Sessions under the Criminal Procedure Code, its amenability to the revisional jurisdiction of the High Court would be clearly spelt out. Reliance was placed in this regard on B. A. Chaudhary v.
Rogar Pearsan, a judgment by Mr. Justice Siddiqui, the present Chief Justice of that Court. His Lordship took the view that an Industrial Court while holding a trial under section 26 or 28 of the Ordinance corresponding to sections 33 and 35 of the present Ordinance, was subordinate to the High Court in view of the provisions contained in section 5(2) of the Cr. P C. and as such, subject to the revisional jurisdiction of the High Court.
5. Having carefully considered the two apparently conflicting views expressed one by Anwarul Haq, J., and the other by Siddiqui, C. J. I am inclined to respectfully agree with the former for the following reasons:-- In the first instance, it is quite clear that the impugned order was passed by the Industrial Court under section 35 and not under section 37, and as such, a finality would attach to the same under subsection (2) of section 16 of the Ordinance rendering it immune from challenge before any judicial authority including the High Court. Secondly the provision contained in section 5(2) of the1 2 3 4 Cr. P. C. making the provisions of the Code applicable to all offences under laws other than P. P. C. have been specifically made subject to any special provisions contained in the special law itself regulating the mode or manner of enquiring into or trying or otherwise dealing with such offences.
It inevitably follows from it, therefore, that the special provision contained in the special law would override the general provisions contained in section 5(2), Cr. P. C. from which Siddiqui, C. J., has spelt out the existence of revisional jurisdiction of the High Court, notwithstanding its specific exclusion by the provision contained in section 16 of the Ordinance. In answer to the argument that under section 16(3) of the Ordinance for the purpose of appeal an order passed by the Industrial Court shall be deemed to have been passed by a Court of Session under the Code, it may be observed that the expression used is "for the purpose of appeal from a sentence passed by it" and not from an order passed or decision made by it. The use of the word `sentence' is very significant and would clearly restrict the scope of the appellate jurisdiction of the High Court only to such orders wherein a person has been sentenced by the Industrial Court and to no other order passed by it. While on the one hand this is the only reasonable interpretation that can be placed in view of the phraseology employed in the provision, it also fits in on the other, with the provision contained in section 16 according to which a finality would attach to any order passed under section 35 which resulted in the conviction. I am, therefore, in respectful agreement with the view taken by my learned brother Anwarul Haq, J., that from the provisions of the West Pakistan Industrial Disputes Ordinance, 1959, corresponding to the provisions contained in sections 33 and 35 of the West Pakistan Industrial Disputes Ordinance, 1968, the amenability of the orders of the Industrial Court to the revisional jurisdiction of the High Court cannot be spelt out.
6. But even otherwise assuming for the sake of argument that the revisional jurisdiction of the High Court was available in this regard the respondent's prosecution would not be maintainable for want of sanction of Government as laid down in section 197 of the Cr. P. C. which again presents a formidable hurdle and was rightly taken into account by the Industrial Court. By no stretch of imagination can it be said that the impugned act C of the respondent in prohibiting the petitioner from attending duty was done in a capacity other than official, he being the Officer Incharge of the Irrigation Workshop. Lastly it may be observed that the prosecution of the respondent is based on certain allegations relating W the petitioner's illegal dismissal from service which is also the subject-matter of another criminal revision pending in the High Court which may or may not succeed. In these circumstances, therefore, to proceed with the prosecution of the respondent which is even otherwise not warranted by law, would amount to putting the cart before the horse and prejudging the issue inasmuch the allegations of illegal dismissal from service may not in the ultimate analysis he found to be substantiated.
7. The upshot of the discussion, therefore, is that, considered from every point of view, the petition is clearly devoid of force and is accordingly, dismissed. PLD 1964 Lah. 426 73 I A 199 AIR 1943 Pat. 18 PLD 1964 Dacca 441 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.