DECISION ' This is an application under section 38(3-a) of the Industrial Relations Ordinance, 1969, for the quashment of the criminal proceedings pending before the learned Labour Court No, 1 at Karachi.
2. The brief facts leading to these proceedings are that the respondent No, 2, which is Workers Union of the Ark Garment Industries, who is applicant in this case, filed criminal complaint under section 9 of the Employees' Cost of Living (Relief) Act, 1973, alleging therein that the applicant had committed offence under the said section by failing to pay legal dues viz. Cost of living allowance.
The learned Labour Court issued process against the applicant and other accused persons. It is contended in this application that the learned Labour Court had no jurisdiction to entertain such complaint.
3. I have heard Mr. Wasi Ahmed, learned representative appearing for the applicants and Mr. Muhammad Yaseen, General Secretary of respondent No, 2.
4. As the question involved is of general importance therefore notices were issued to some of the learned counsel who usually appear before this Tribunal either for the employees or for the employers. Messrs Ali Amjad and Abdul Majeed have addressed the Tribunal and Mr. Muzaffar Ahmed Khan has sent his arguments in writing. Before proceeding further I must record my appreciation for the assistance rendered by the said gentlemen to this Tribunal as amicus curiae.
5. The Labour Courts have been established under section 35 of I.R.O.
1969. Their powers are enumerated in subsection (5) of section 35 of the I.R.O. Clause (c) of subsection (5) which deals with the powers of the Labour Courts with regard to the criminal offences reads as under:-- "(c) try offences under this Ordinance and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf."
The plain reading of this clause would show that the Labour Court would try offences under any other laws only when so specifically notified by the Sind Government. No such notification appears to have been issued by the Government authorizing the Labour Court to try offences under section 9 of the Employees' Cost of Living (Relief) Act, 1973. It also appears that in this Act of 1973 neither word 'Cost' has been defined nor any Court has been specified, which can take cognizance of the offences under section 9 of the Act. The Labour Courts, being creation of statute, cannot assume the powers which are not conferred upon them by that statute.
6. Reference may also be made to subsection (3) of section 36 of the I.R.O., 1969, which provides as under:-- "(3) A Labour Court shall, for the purpose of trying offences under this Ordinance or the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (W.P.
Ordinance VI of 1968), have the same powers as are vested in the Court of a Magistrate of the first class specially empowered under section 30 of the Code of Criminal Procedure, 1898 (Act V of 1898)."
' Even under this provision the Labour Courts are vested with the powers of Court of Magistrate only for trying offences under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance and I.R.O., 1969 and not for offences under any other law.
7. The question arises as to which Court is competent to try the offence under section 9 of the Employees' Cost of Living (Relief) Act, 1973. In this context it will be pertinent to refer to section 29 of the Criminal Procedure Code. Subsection (1) of section 29 lays down:- "(1) Subject to the other provisions of this Code, any offence under any other law shall when any Court is mentioned in this behalf in such law, be tried by such Court."
As already pointed out no Court has been mentioned in the relevant law for trying the offence in question. Consequently subsection (2) of section 29 would be applicable which reads as under:-- "(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence shown in the eighth column of the second schedule to be tribal."
Under column 8 of second schedule the offences against other laws when punishable with imprisonment for less than one year are tribal by any Magistrate. The offence under section 9 of the Employees' Cost of Living (Relief) Act, 1973 is punishable with six months' imprisonment. As such it is tribal by any Magistrate.
8. In view of this legal position the learned Labour Court had no jurisdiction to take cognizance of the offence under question and as such the proceedings pending before the learned Labour Court are quashed. However, it will not preclude the complainant/respondent No, 2 from filing the complaint before the competent Court for the offence, if authorized under section 10 of the said Act of 1973.