A complaint under section 53 read with section 22-A of the Industrial Relations Ordinance, 1969 (hereinafter called I.R.O) was filed by Muhammad Saleem Rehan President, Janbaz Union, Millat Tractors Limited, Sheikhupura Road, Lahore and Rukhsar Ahmad, General Secretary of the said Union against Ihsanullah Khan, Managing Director Millat Tractors Limited, Sheikhupura Road, Lahore and two others on 28-3-1985. This complaint was accompanied by a stay application from Muhammad Saleem Rehan and two others which was signed by Muhammad Saleem Rehan only.
The affidavit accompanying the stay application was also signed by Saleem Rehan only. The title of the stay application was "Application under Regulation 32-C" and its paras. 1 and 2 stated that the accompanying complaint had been filed in the Court that day and the complaint contained a detailed narration of unfair labour practices committed by respondents and the same may be perused alongwith that application. The complaint and the application under Regulation 32-C were assigned to late Raja Iftikharullah Khan learned Member of this Commission for disposal, before whom the case came up for hearing the same day.
2. The order of the learned Member shows that a petition under section 22-A(8)(g) of the I.R.O.
Alongwith an application under Regulation 32(2)C of the NIRC (Procedure and Functions)
Regulations, 1973 had been filed before him. He directed the two petitions to be sent to the respondents for comments which were to be filed before this Bench. In the meanwhile, he directed that the respondents may proceed with the domestic inquiry but refrain from passing final adverse order against Muhammad Saleem Rehan and Rukhsar Ahmad till next date of hearing i.e. 11-4-1985.
The learned Chairman assigned this case to this Bench on 28-3-1985.
3. The arguments in the stay matter were heard on 20-5-1985 but before the order could be passed the learned counsel for respondents preferred additional grounds on 6-6-1985 which came up for arguments on 10-9-1985 when the counsel for respondents did not press the same. As the employer's inquiry was going on against the petitioners, the inquiry report was directed to be submitted after completion and the preliminary objections on the main case were fixed for arguments. On 10-11-1985 the counsel for the petitioners stated that the orders were reserved in the stay matter on 20-5-1985 and that the arguments be heard again as five months had elapsed. The matter was fixed for arguments in the case of Saleem Rehan only as his inquiry had been completed. It was also pointed out to the counsel for the petitioner that although he had amended the heading of the complaint and turned the same into petition under section 22-A (8)(g) yet the prayer was that of the complaint. He sought permission to amend the same for which he made an application on 27-11-1985. The arguments in the stay matter were also heard on the same day when the orders were reserved. Arguments were going on in the main petition when the counsel for the petitioner made a statement on 12-2-1986 that he seeks permission to withdraw his application, dated 24-11-1985 for amendment of the pleadings and that the case may be tried as a complaint under section 53 of the I.R.O., 1969. On 23-2-1986 the counsel for the complainant made an application praying that the inquiry file of Rukhsar Ahmad be got produced from the respondents and orders in the stay matter of both the petitioners be passed at a time. In reply the counsel for the respondent submitted an application for dismissal of stay application which he later on pressed through another application to be treated as application for the dismissal of the main case, and moved for the correction of the case number accordingly. Thus, it is the application fop dismissal of Case No.4 (63)/85 which is before me.
I have heard the arguments of both the counsel and perused the record. It may be recalled that originally complaint under section read with section 15 of the I.R.O. Was filed before the Commission alongwith the application under Regulation 32(2). The learned counsel as well as petitioner No.1 in application, dated 24-11-1985 stated: - "that the title petition was originally drafted as a complaint of unfair labour practice. It came up for preliminary hearing before late Raja Iftikharullah Khan learned Member of the NIRC who was pleased to suggest to the petitioner's counsel to convert the same into a civil petition.
Consequently, on the suggestion of the learned Member the original complaint was converted into the titled civil petition and requisite changes were also hurriedly made in the original draft of the complaint."
5. The learned counsel prayed that he may be allowed to amend the petition further and to add the prayer that the charge-sheet issued against the two petitioners be declared to be illegal and a nullity in law and be set aside being a colourable exercise of jurisdiction. Apart from the scandalous imputation about late Raja Iftikharullah Khan learned Member of this Commission who is now unable to defend himself, it is apparent that had the complaint not been converted into an application under section 22-A(8)(g), the stay application under Regulation 32 was liable to be rejected outright because no stay could be granted in a criminal complaint. It was thus in order to secure a stay order in favour of the two petitioners that the learned counsel for the petitioners converted the criminal complaint into a civil petition. The assertion that it was done on the asking of the late learned Member is not worthy of belief because the gain was reaped by the two petitioners and not by the late learned Member.
6. The petition was filed on 28-3-1985. Since then, to date, it has been treated as a civil petition and the stay order has remained in the field because of that reason. Now, when it is ultimately found that this civil petition merits dismissal because, it contains no prayer of civil nature, the petitioner cannot turn around and say that it was in fact a criminal complaint.
7. Thus, I am of the firm mind that this petition bearing No.4(63)/85 which was amended to be a civil petition and held out as such for more than one year by the petitioners who derived the benefit of stay orders thereunder could not be treated as a complaint, and is therefore dismissed.
However, even if it were treated as a complaint it was still liable to be dismissed, for the simple reason that it had been filed jointly by two complainants. As it is, the Cr.P.C. Has no concept of joint applications like the Civil Procedure Code. The judgment in AIR 1962 Ker. 443 (No.48 S.134), para. 2, is illuminating: "(2)The three respondents in this petition have filed joint complaint in the lower Court. In Sashadhar v. Sir Charles Tegrat AIR 1931 Cal. 646, it was held that a joint complaint by two persons is not contemplated by the Criminal Procedure Code and that two separate petitions or complaints should be filed. It was pointed out in that decision that if there are two or more complainants on the same complaint it is physically impossible to fulfil the provision of S.200, Cr.P.C. This reason is not quite convincing and it has been disapproved in the decision in AIR 1942 Oudh 407."
But even in the later decision, it has been pointed out that there in no provision on Criminal Procedure Code that a complaint may be made by more than one person. But having regard to section 13 of the General Clauses Act it was pointed out that the words used in the singular would include plural and vice versa and it was held that there was neither in the Code to prohibit such joint complaint. I am unable to follow the above Oudh decision.
Under section 233, Cr.P.C. For each distinct offence of which any person is accused, there should be a separate charge and the exceptions are contained in the subsequent sections. There is no provision in the said sections dealing with joinder of charges authorising two or more complaints to file a single complaint. If the authors of the Code of Criminal Procedure contemplated such filing of joint complaints, they would have clearly made provision for them corresponding to Order 1, C.P.C.
Providing for joinder of plaintiffs in civil suits. On the other hand, provisions like S. 247, Cr.P.C. In summons case and section 259, Cr. P. C. In warrants case as to the powers of the Court to dismiss a complaint in the absence of the complainant, clearly indicate that a complaint could be filed by only one person. It has been rightly pointed out by the learned Advocate for the petitioners that there would be difficulty even in the matter of compounding of the offences by the accused with every one of the complainants in the case of joint complaint. It should be noted that the petition has been filed at the earliest stage before the evidence was taken. There can no difficulty for the respondents to file separate complaints.
The observation of the learned Sub-Magistrate that even in case of separate complaints against some persons in the course of the same transaction, it is open to the Court to club them together and have a joint trial is not correct. Several cases filed by the police or by the same complainant could be clubbed together if they would not amount to misjoinder of charges and not otherwise. It would not be legal to club together complaints filed by different persons."
I, therefore, dismiss Petition No. 4(63)/85 for the reasons stated above. The stay application bearing No.24(67)/85 is also dismissed being ancillary to the main petition and stay order, dated 28-3-1985 is vacated.