1. ' This is an application under section 561-A Cr.P.C. For abashment of proceedings pending against the applicants under section 53(1-A) read with section 15(i) of the Industrial Relations Ordinance, 1969 pending before respondent No,2 Presiding Officer, Sind Labor Court No,VI, at Hyderabad.
2. ' The brief facts giving rise to the present application are that the Respondent No,1 filed a complaint under section 53(1-A) read with section 15(i) of the Industrial Relations Ordinance, 1969 against the applicants inter alia alleging therein that the complainant is a permanent workman employed in Ahmad Spinning Mills Ltd., Dhabeji, District Thatta. That the accused/present applicants are the persons responsible for the supervision and control of all the affairs of the Mills and to comply with the provisions of Labour Laws including the provisions of Standing Order 11-A of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. That the above accused have filed an application bearing No,49 of 1984 under Standing Order 11A in the learned Sind Labour Court No,III, Karachi on 14-3-1984 through accused No,3 seeking permission to close down the Mills for the reasons mentioned in the said application. That the above application filed by the accused was opposed on the grounds of incompetency of accused No,3, and territorial jurisdiction of the Sind Labour Court No,III, Karachi, and the matter is still subjudice. That the accused have, however, closed down the Mills on 16-31984 i,e, only after three days of filing of the application under Standing Order 11-A of the above Ordinance, 1968. It was further alleged that the accused have threatened to terminate the services of all the workmen vide notice dated 20-31984, without serving any order in writing. The accused have also stopped the payment of wages to the complainant and others since 16-3-1984. That the above action of the accused in closing down the Mills is a clear violation of Standing Order 11-A of the said Ordinance, 1968 which amounts to unfair Labour practice under section 15(i) of Industrial Relations Ordinance, 1969. The accused have also removed certain machines from the Mills and installed the same in their sister concern namely Anwar Textile Mills Ltd. Dhabeji, District Thatta.
3. ' That on receipt of the above complaint, the respondent No,2 was pleased to order that preliminary enquiry be held for which notice was issued to the accused/applicants as well. The applicants filed objections asserting that the respondent No,2 had no jurisdiction to entertain the matter. However, the Respondent No,2 issued summons against the applicants for appearance. A formal charge was framed against the accused/applicants to which they pleaded not guilty.
4. ' On 2-1-1985 the applicants filed an application under section 249-A Cr.P.C. Challenging the jurisdiction of Respondent No,2 and for their acquittal, relying on 1984 PLC 538. That the matter was fixed on 5-5-1985 for arguments on which date the Advocate for the applicants sent an application for adjournment on the ground that he was busy before the Honorable High Court of Sind, at Karachi in three matters, however, the learned Respondent No,2 after hearing the counsel for respondent No,1 dismissed the above application. The present application has been filed for abashment of the above proceedings.
5. ' I have heard Mr. Suleman Habibullah, learned counsel appearing for the applicants, Mr. Imam Ali Memon, learned counsel appearing for the State, and have also gone through documents produced alongwith application.
6. ' It was contended by Mr. Suleman Habibullah that the applicant No,1 was neither the owner nor the employer and this position was admitted by respondent No,1 complainant, and Inspector of factories in another application No,49 of 1984, and therefore, the proceedings were misconceived and not maintainable. That the respondent No, 2 had no jurisdiction to try the offences under section 53(1-A) read with section 15 of the Industrial Relations Ordinance, 1969 except offences under section 15 subsections (1) and (5) without reference from the National Industrial Relations Commission.
7. ' Mr. Imam Ali Memon, learned counsel appearing for the State, has conceded that in view of the above circumstances, the proceedings were liable to be quashed.
8. ' I have considered the contentions of the learned counsel.
9. ' In order to appreciate the legal points raised by the learned counsel appearing for the applicants it is necessary to refer to section 53(1-A), section 15(i), section 22-A(8)(g) and section 22-A (12) and section 64 of Industrial Relations Ordinance, 1969.
10. ' Section.53(1-A) -- "Whoever contravenes the provisions of section 15 shall be punishable with imprisonment which may extend to (four years) or with fine which may extend to (ten) thousand rupees or with both.'
11. ' Section 15.--Unfair labour practices on the part of employers- (1) No employer or trade union of employers and no person acting on behalf of either shall-- (b)
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union, or refuse to employ or refuse to continue to employ any person on the ground that such person is or is not, a member or Officer of a trade union, or
(c) discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is or is not, a member or Officer of a trade union, or
(d) dismiss, discharge, remove from employment (or transfer) or threaten to dismiss, discharge or remove from employment (or transfer) a workman or injure or threaten to injure him in respect of his employment by reason that the workman:-
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union, or
(ii) participates in the promotion, formation or activities of a trade union.
(e) induce any person to refrain from becoming, or to cease to be a member or officer of a trade union, by conferring or offering to confer any advantage on, or by procuring of offering to procure any advantage for such person or any other person.
(f) (compel or attempt to compel any Officer of the collective bargaining agent to arrive at a) settlement by using intimidation, coercion, pressure, threat, conferment to a place, physical injury, disconnection of water, power and telephone facilities and such other methods.
(g) interfere with or in any way influence the balloting provided for in section 22 3 (or)
12. 4(h) recruit any new workman during the period of a notice of strike under section 28 or during the currency of a strike which is not illegal except where the Conciliator, has, being satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur; 5(i) close down the whole of the establishment in contravention of Standing Order 11-A of the West Pakistan Idustrial and Commercial employment (Standing Orders) Ordinance, 1968; (West Pakistan Ordinance No,VI of 1968); or
(i) commence, continue to instigate or incite others to take part in, or expend or supply money or otherwise act in furtherance or support of an illegal lock-out.
(2) Nothing in subsection (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being a member or Officer of a trade union of workmen."
13. Section 22-A.-- National Industrial Relations Commission-(1) The (Federal Government) shall constitute a National Industrial Relations Commission.
(2) The Commission shall consist of not less than seven members including the Chairman.
14. (3)
15. (4)
16. (5).
17. (6)..
18. (7).
(8) The following shall be the functions of the Commission namely:- (a)to promote the formation of trade unions of workers within the same industry whether in establishments within a Province or in more than one Province and federations of such trade unions; (b)
19. (c)
20. (d).
21. (e)
22. (f)to try offences (****) punishable under:- (i)section 53, other than subsections (1) and (5) thereof; and (ii)any other sections, in so far as they relate to employers or workers in relation to an industry wise trade union, federation of such trade unions, a federation at the national level or officers of such union or federation; (g)to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions or either of them or persons acting on behalf of any of them, whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed and, to take, in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice; (h)..
23. (i)
24. Section 22-A(9).-- The Commission may, on the application of a party or of its own motion,-- (a)initiate prosecution, trial or proceedings or take action, with regard to any matter relating to its functions; and (b)withdraw from a Labour Court any application, proceedings or appeal relating to unfair labour practice.
25. ' Section 22-A(10).-- For the purpose of dealing with a case of unfair labour practice of which Commission is seized, the Commission may,- (a)proceed directly with the case, or (b)ask the Registrar within whose jurisdiction the case has occurred or is likely to occur to enquire into it and submit a report, or (c)refer the case to Labour Court within whose jurisdiction the case has occurred or is likely to occur, either for report or for disposal.
26. 22-A-(10-a).-- The Labour Court to whom the case is so referred shall enquire into it and, if the case was referred to it for report, forward its report thereon to Commission or, if the case was referred to it for disposal, continue the proceedings and dispose of the case as if the proceedings had originally commenced before it (and grant such relief as the Commission has the power to grant).
27. 22-A(11).-- Save as provided in subsection (10-a) and (12) no Registrar Labour Court or Tribunal shall take any action, or entertain any application or proceedings, in respect of any matter which falls within the jurisdiction of the Commission.
28. 22-A(12).--Nothing in this section shall be deemed to exclude the jurisdiction of Labour Court to entertain cases of unfair labour practies on the part of employers or workmen, whether individually or collectively: ' Provided that no Court, including a Labour Court shall take any action or entertain any application or proceedings in respect of a case of unfair labour practice which is being dealt with by the Commission."
29. ' Section 64. Trial of offences-- Save as provided in this Ordinance, no Court other than a Labour Court or that of a Magistrate of the First Class shall try any offence punishable under this Ordinance.
30. ' The functions and jurisdiction of N.I.R.C. Have been specified in section 22-A(8) I.R.O. Which inter alia provides that N.I.R.C. Has jurisdiction to try offences punishable under section 53 except those mentioned in subsections (1) and (5) and to deal with cases of unfair labour practices specified under sections 15 and 16, I.R.O. N.I.R.C. Has power on the application of a party or suo motu to initiate prosecution, trial or proceedings in respect of matters relating to its functions. It can also withdraw any application or proceedings or appeal relating to unfair labour practice or refer such cases to Labour Court for report or disposal. Subsection (11) provides that except the cases referred to the Labour Court under subsection (10-a) and cases of unfair labour practice, the Labour Court shall not entertain or take any action relating to matters falling within the jurisdiction of N.I.R.C.
31. Subsection (12) provides that section 22-A does not debar the Labour Court from entertaining cases of unfair labour practice. In order to determine whether Labour Court has the jurisdiction to try offences under section 53 one has to look to the other provisions of I.R.O. Under section 35(5)(c) the Labour Court is empowered to try offences under I.R.O. Section 53 provides penalty for unfair labour practice. Section 53(6) specifies that nothing in the Ordinance shall be deemed to exclude the jurisdiction of the Labour Court to try any case under section 53 if it is authorised to do so by a general or special order of the Commission. The effect of these provisions is that although the Labour Court is empowered to try offences under the Ordinance, limitation has been placed by section 53 to the effect that it can try offences under this section only if authorised by the N.I.R.C.
32. Section 64 provides that except as provided by the Ordinance no Court other than the Labour Court or that of a 1st Class Magistrate shall try offences under the Ordinance. This provision empowers the Labour Court to try offences under the Ordinance but exercise of such jurisdiction is subject to other provisions of the Ordinance. This section, therefore imposes limitation on the jurisdiction of the Labour Court to try offences and such limitations are provided under the Ordinance. If no limitations are placed it was not necessary to open section 64 with the words 'save as provided by the Ordinance'. It would have been sufficient to provide that no Court except the Labour Court will have jurisdiction to try offences under the Ordinance. It is pertinent to note that these opening words were added by Act XVI of 1975. To find out the limitation placed on the jurisdiction of Labour Court to try offences under the Ordinance the aforestated provisions have to be considered and interpreted. For determining the jurisdiction of the Labour Court for trial of offences relating to unfair labour practice two key words viz. 'offence' and 'case' require special consideration. In the aforestated provisions words 'offence' and 'case' have been used conveying different meanings. Under section 22-A(8)(1), N.I.R.C. Can try offences under section 53 which provides penalty for unfair labour practices. Section 22-A(g) authorises N.I.R.C. To deal with cases of unfair labour practices specified in sections 15 and 16. These provisions clearly demonstrate that words 'offence' and 'case' convey different meaning. If the intention of the Legislature was to use the words 'offence' and 'case' for the same meaning then it was not necessary to specify them separately in subsections (8)(f) and (8)(g). The trial of 'offence' and dealing with cases refer to two different and distinguishable matters. The scheme of the Ordinance clearly distinguishes between 'cases' and 'offence' relating to unfair labour practice as specified in sections 15, 16 and 53. Where any unfair labour practice is committed the aggrieved party is entitled to institute proceedings seeking relief, protection and redress against commission or continuation of unfair labour practices specified in sections 15 and 16. The other remedy available under section 53 is to prosecute the guilty party. All proceedings which are based on violation of sections 15 and 16 but do not seek prosecution under section 53 can be adjudicated by the Labour Court as well as by N.I.R.C. But restriction has been placed on the jurisdiction of the Labour Court in respect of proceedings relating to offences under sections 53(1-A), (2)(3) and (4) which fall within the exclusive jurisdiction of N.I.R.C. The Labour Court can try these offences if authorised to do so by a general or special order of N.I.R.C. As provided by section 53(6). In this provision section 53(6) the word 'case' has been used but it has been qualified by the words 'under this section' (section 53) which refers to penal proceedings provided by this section. Therefore, the trial of offences relating to unfair labour practice is within the exclusive domain and jurisdiction of N.I.R.C. And the jurisdiction of the Labour Court to try such offences is limited to such cases where it is authorised to do so by a general or special order of the Commission."
33. From the above provisions of law and the discussion on the point, it is clear that the Labour Court had no jurisdiction to try offences relating to unfair labour practice. In support of the above view, reference may be made to the case of Zaheeruddin Ansari v. Mashoodul Hassan 1984 PLC 538 wherein it was observed by Mr. Justice (Retd.) H.M. Korejo (The then Chairman, Sind Labour Appellate Tribunal, Karachi) that:- "That the above-mentioned provisions clearly provide the exclusion of the jurisdiction of the Labour Court to try offences falling within the ambit of section 53(1-A) of I.R.O. Unless so authorised by a general or special order of Commission. In my view, the exception provided in subsection (12) of section 22-A I.R.O. Refers only to cases of unfair labour practice on the part of the employers or workmen and the applications and proceedings in respect thereof except trial of criminal prosecution as contemplated by section 22-A(F) I.R.O. Accordingly, the trial of offences in respect of unfair labour practice except those under subsections (1) and (5) of section 53 of Industrial Relations Ordinance would fall within the exclusive jurisdiction of National Industrial Relations Commission, unless Commission authorised the Labour Court to try the same by a general or special order."
34. ' In the case of Sajjad Mahmood and another v. The Presiding Officer, Sind Labour Court No, V, Muslimabad, Karachi and others PLD 1987 Kar. 67 it was held by this Court, after taking into consideration the above provisions of law that:- "All proceedings which are based on violation of sections 15 and 16 but do not seek prosecution under section 53 can be adjudicated by the Labour Court as well as by National Industrial Relations Commission.
35. ' But restriction has been placed on the jurisdiction of the Labour Court in respect of proceedings relating to offences under sections 53(1-A), (2)(3) and (4) which will be filed within the exclusive jurisdiction of National Industrial Relations Commission. The Labour Court can try these effences if authorised to do so by general or special order of N.I.R.C. As provided by section 53(6). In section 53(6) the word 'case' has been used but it has been qualified by the word 'under this section'
36. (section 53) which refers to penal proceedings provided by this section."
37. ' In the case of Mian Munir Ahmad v. The State 1985 SCM R 257 it was observed by their Lordships of the Supreme Court in a case pending before the Labour Court that:- "The question as to whether or not any proceedings pending trial before a Court should be quashed (under section 561-A, Cr.P.C.) neither relates to investigation nor 'inquiry into' or 'trial' of that case, but would be covered by the expression 'otherwise dealt with'. Therefore, the provisions of section 561-A Cr.P.C. Would be applicable to a criminal case being tried by a Labour Court under section 35/36 of the I.R.O., notwithstanding the fact that the said Court is not subordinate to the High Court and that an appeal from its decision does not lie to the High Court but to the Labour Appellate Tribunal under section 37 of the I.R.O."
38. From the above discussion it is clear that the learned respondent No,2 had no jurisdiction to take cognizance of the offences under section 53(1-A) read with section 15(1) of the I.R.O. 1969 and this Court has jurisdiction to quash proceedings, therefore, the application is allowed and the proceedings pending before the respondent No,2 are hereby quashed.
39. ' I had decided the above application by a short order dated 16-9-1987 and these are the reasons for the same. .