1. ' This is a complaint under section 55, I.R.O. The brief facts leading to the case were that a settlement, dated 1-3-1976 was reached between the workers union and the management, clause 7 of which mentioned, "It has been agreed that if the mill is closed due to power failure change of rolls and any other technical fault, that period shall not be taken into account for the purpose of calculation of production bonus and the targetted production for that day shall be fixed after making necessary deduction for the period of closure". It had come on record that the mills denoted the Re-rolling mills where the complainant worked as a Tungsman. The complainant alleged that under the said clause benefits were given to the workers of all other departments viz. Galvanizing Department, Blade Bar Department etc. Except the Re-rolling Department. The accused was the Manager of the Re-rolling Department and, though approached, he refused to give the facilities as envisaged by clause 7 of the settlement to workers of the Re-rolling Department. In para. 5 of the complaint, the case of the complainant was that, from time to time, he and other workers requested the accused to allow the facilities as contained in clause 7 of the agreement with regard to targetted production. The accused refused to implement the said clause with the result that whenever the mills was closed due to technical fault, the workers were not paid production bonus, which amounted to non implementation of the agreement.
2. The accused was charged with the offence punishable under section 55, I.R.O. To which he pleaded not guilty. The explanation of the accused was that he was not the authority to implement the settlement. The concerned authority was the management which acted through the Administration and Personnel Department. It had come on record that the accused actually took the workers to the Manager Personnel, for doing the needful. The accused alleged the the witnesses were deposing against him because an F.I.R. Was lodged against them with police and because the complainant had once quarrelled with him. The accused examined two persons in defence in support of his version.
3. The points for determination will be as under:-
(i) Whether the terms of the settlement, particularly clause 7, were not implemented.
(ii) Whether the accused wilfully failed to implement the terms of the settlement. My finding on the above points are as under:-
(1) Not proved.
(2) Not proved.
2. REASONS ' I reproduce section 55, I.R.O. Which reads as under:- "55. Penalty for failing to implement settlement, etc.-- Whoever wilfully fails to implement any term of any settlement, award or decision which it is his duty under this Ordinance to implement, shall be punishable with imprisonment for a term which may extend to one year, or with a fine which may extend to rupees five hundred or with both, and, in the case of continuing failure, with a further fine which may extend to two hundred rupees for every day after the first during which the failure continues."
3. ' The above reading of the section highlights two main requirements (i) wilfully fails (ii) which is his duty under the Ordinance to implement. The burden was heavily upon the complainant to prove that there was any wilful failure, on the part of the accused to deny the benefits to the complainant; and whether he wilfully ignored implementation of the settlement. The complainant had deposed and asserted that it was the duty of the accused under the Ordinance to implement the settlement; and as such burden was on him to prove that implementation was the duty of the accused.
4. ' The accused explained that it was not his duty to implement the settlement. According to him it was the duty of the Administration and Personnel Department to implement the settlement. The accused examined Amir Khan, the Assistant Manager Administration and Personnel, in defence, who deposed that it was the function of the Administration & Personnel Department to sign agreements and settlements and to implement the same. He clarified, in cross-examination, that the Administration & personnel Department was headed by the General Manager. He said in cross- examination that it was his job to sign settlement and to implement the same. He clarified that it was for him to implement in a particular manner or not to implement the agreement in accordance with the terms laid down in the agreement. Perhaps, he meant, that it was for him to interpret the clauses of the agreement and implement the same according to his own interpretation. It was an admitted position that the complainant or any other worker had never approached the Administration & Personnel Department complaining of non-implementation of the agreement. No written or oral complaint was made to the management. The complainant who himself was an office-bearer of the union, admitted that he had never made a written or oral complaint to the management or to the Labour Directorate for seven long years from 1976 to 1983.
5. It was obvious that the concerned authority which had to implement the agreement was not approached and no complaint was lodged with it at any time since the year 1976. This fact leads to the inference that there was no breach or non-implementation of the agreement.
6. ' The complainant had to prove whether there was a breach of clause 7 of the agreement. I think there was no conclusive evidence on this point. There was inordinate delay in filing the complaint.
7. The non-implementation was alleged since 1-3-1976 whereas the complaint was filed on 4-6-1983 i.e. After more than 7 years. The inordinate and unexplained delay leads to the inference that no offence was committed. It is noteworthy that the complainant did not specify as to on which date or from which date onwards, the alleged non-implementation took place, and for what period, from which date to which date and in respect of which worker. The complainant and his witnesses admitted that no complaint whatsoever was made by them to the union or to the Labour Directorate or to the management itself with regard to any specific non-implementation in respect of any specific clause. The inference was that no specific offence on any specific date was committed in respect of any specific worker. The complainant admitted in cross-examination that it was in the year 1978 that he and some other workers went to the accused and asked him to pay production bonus. He further said that he did not remember the day or date or month of the incident. He admitted that from the year 1978 to 1983 they did not complain to the CBA or to the Administration Department or to the Managing Director.
8. ' However, he wake up from the slumber after five years and lodged this complaint in the year 1983.
9. The complainant made a categorical admission in his cross-examination that it was the duty of the Administration & Personnel Department to implement the settlement and to observe all other rules and service conditions. Criminal liability is not a vicarious laibility. The present accused who was the Incharge of the Re-rolling Department, could not be held responsible for alleged non- implementation, if any. It was not his duty to implement settlements. It was the duty of the Personnel and Administration Department. The complainant admitted in his cross-examination, "A settlement is executed and signed on behalf of the company by the Administration Department and copies thereof are sent to various Departments. The accused Zulfiqar had never signed any settlement. It is the responsibility of the Administration and Personnel Department to see that the terms of the settlement are properly implemented in the company". It was, therefore, abundantly clear that the accused was unnecessarily dragged and prosecuted when it was not his duty to implement the agreement. The complainant had never complained to the proper authority or to the union or to the Labour Director at any time for any specific non-implementation. Whatever was in the powers of the accused, he did take sufficient steps. It was admitted by the complainant in his cross-examination that the accused accompanied him to Mr. Ch. Khursheed the Plant Manager who called for Mr. Younis Khan the Manager Administration and consulted him. If so, it was for Mr. Younis Khan and Mr. Chaudhry Khursheed to redress the grievance of the workers, by specific orders. The accused had nothing to do with non-implementation, if any. It was clear that the accused had no intention to flout the requirements of the agreement. He took the workers to the proper authority for decision on the matter. It was quite clear, that the accused did not "wilfully" commit any offence.
10. ' The complainant, in his examination-in-chief, pin-pointed that the accused did not pay bonus for closure due to "technical fault" in the machinery. P.Ws. Sultan Syed and Mohammad Nawaz also referred to non-implementation of the settlement in respect of targetted bonus during the period of stoppage of machinery due to technical fault. If so, it was the duty of the complainant to prove that there actually was a technical fault and consequent stoppage of machinery on any particular day or date for a particular period. He led no evidence in this regard, oral or documentary. It was therefore difficult to say that there was any stoppage of work date to any fault in the machinery or consequent non payment of production bonus to any particular worker during a particular period in the Re-rolling Mills.
11. ' The complainant admitted that production was calculated and paid by the Accounts Department on the basis of production report sent by various sections, and the production reports were sent by the concerned Departments to the Accounts Department. The complainant thereby meant to allege that the production reports sent from the section of the accused were not correct in respect of production bonus. Even if this was so, it did not constitute an offence under section 55, I.R.O. The complainant admitted that in case of any grievance to a worker the worker had to bring his complaint or grievance to the notice of the Incharge of the section, viz. The accused. No such complaint or grievance was brought to the notice of the accused in writing by any particular worker, which meant that there was no complaint or grievance whatsoever at anytime in the year 1976, as alleged. I draw the conclusion that there was no evidence at all with regard to alleged stoppage of work due to alleged fault in the machinery resulting in non-payment of targetted production bonus.
12. ' P.W. Sultan Syed admitted in cross-examination that in different Departments of the mills there was different system of payment of production bonus. He admitted that they did not get production bonus in case of, failure of electricity, roll changing, roll breakdown, shortage of raw material and in case of setting of new size. The admission showed that the only grievance of the complainant was that they were not paid average targetted bonus in case of stoppage of machinery due to a technical fault. I have already discussed above that it was not proved as to when and for what period the machinery had stopped due to a technical fault. It was not proved that any technical fault in the machinery had ever occurred at any time.
13. The accused has not to prove anything nor has he to disprove the case of the complainant. The prosecution has to prove its own case on its merits. However, the accused had explained that he was involved because the applicant had a quarrel with him. In support of his version the accused examined Syed Aijaz Mehdi the Assistant Engineer who deposed that the complainant had a quarrel with the accused on 5-7-1982 as recorded in the log book at serial No.
31. The accused also produced a copy of the F.I.R. No. 359 of 1983 of P.S. SITE Karachi, filed on 2-8- 1983 against the prosecution witnesses. The accused explained that the witnesses were interested witnesses and should not be believed. I agree that the witnesses, as well as the complainant, were interested persons and therefore their evidence could not be given much weight unless corroborated in material respects by independent circumstantial evidence. There was no such independent circumstantial evidence. The benefit of doubt must therefore go to the accused.
14. The prosecution has failed to prove its case against the accused. I acquit the accused under section 258, Cr.P.C.
15. Accused acquitted.