FAKHRUDDIN G. EBRAHIM, J.----The circumstances giving rise to these two Criminal Miscellaneous Applications under section 561-A, Cr. P. C. And Con--stitutional Petition are identical. Criminal Miscellaneous Application No. 250 of 1971 has become infructuous but some reference to it will be necessary to appreciate the arguments raised in support of Criminal Misc. Application No. 273 of 1971. The Constitutional Petition has been filed by the petitioners in both Criminal Miscellaneous Applications only out of abundant caution and will become inconsequential if Criminal Misc.
Application No. 273 of 1971 is disposed of on merits.
2. The admitted facts giving rise to these proceedings are that the petition--tioners in all these cases are the officers of a company called Esso Standard Eastern Incorporated, a company incorporated in the United States of America. Prior to 22-5-1970 the General Manager of this company, at Karachi was one Mr. R. W. Mitchell, and the petitioner in Criminal misc. Application No. 250 of 1971 succeeded Mr. Mitchell as the Generate Manager in May 1970. The Petitioners Nos. 1 and 2 in Criminal Misc. Application No. 273 of 1971 were the Assistant General Managers of the company in Pakistan, the former dealing with its financial affairs and the latter with its public affairs and public relations, both having no responsibility in personnel matters, including appointments or termination of service of employees or with cases of disciplinary or departmental action against the employees. The petitioner No. 3 in this Misc. Application was at the relevant time the Employees Relation Manager of the Company at Karachi under whom was working Mr. M. H. Mirza, the respondent No. 2 in the Constitutional Petition as Supervisor in the employees Relation Department.
The Company was engaged in the business of storage and distribution of oil and gas in Pakistan and imports of unrefined and refined oil and lubricants. On 9th July 1969 the aforesaid Employees Relation Manager addressed a letter to the Sub-Administrator Martial Law Headquarter Zone 'B', requesting for permission to terminate the services of the said Mr. Mirza on the ground that his performance over a number of years had been constantly unsatisfactory and his general attitude towards his work and his associates needed much to be desired. The Sub-Administrator Martial Law by his letter dated 9th July 1969 replied that the Martial Law authorities would not like to intervene in the case and that the management may take its own decision keeping in view the provisions of the Essential Services Ordinance with plausible excuse for his termination. Following this letter, the services of Mr. Mirza were termi--nated and this decision which was taken by the then General Manager of the Company Mr. Mitchell was communicated to Mr. Mirza by letter dated 22-7-1969. Mr. Mirza represented to the Government of Pakistan against termination of his services which ultimately resulted in a complaint under section 7 of the Pakistan Essential Services (Maintenance) Act, 1952 which was lodged by the Deputy Commissioner, Karachi in the Court of City & A. D. M., Karachi against the petitioner in Criminal Misc. Application No. 250/1971. Mr. Stanley Young, the General Manager and the two Assistant General Managers, B. L. Meyer Jr. And Iftikhar Hussain and the Employees Relation Manager, Lt.-Col. Rizvi, the petitioners in Criminal Misc.
Application No. 273 of 1971. The complaint was presented on 29-4-1971 and the Magistrate forthwith ordered the issue of bailable warrants against the petitioners in the sum of Rs. 1,000.00 each. The Criminal Revision Applications and the Petition are all directed against this order of the City and Additional District Magistrate, Karachi.
3. Mr. Mahmud A.I Kasuri, the learned counsel for the petitioners challenged the prosecution commenced by the Deputy Commissioner, Karachi on several grounds. His first and the main contention was that neither the prosecution before the commencement of the proceedings against the petitioners, nor the learned Magistrate before passing the impugned order applied their minds to the propriety or the necessity for initiating the proceedings and/or entertaining the complaint under section 7 of the Pakistan Essential Services (Maintenance) Act, 1952. The second contention was that under section 7 of the said Act only such officers may be prosecuted who are connected with the violation committed by a body incorporate and that no attempt was made in the present case to ascertain whether or not any of the petitioners were responsible for the termination of the employment of Mr. Mirza. Thirdly, it was contended that the pro--secution was mala fide inasmuch as it was commenced to enrich Mr. Mirza. The fourth and the last contention was that the Deputy Commissioner of Karachi was not competent to file the complaint against the petitioners under the relevant notification.
4. Before I examine the various contentions raised on behalf of the petitioners it is necessary to have a detailed look at the Pakistan Essential Services (Maintenance) Act, 1952, hereinafter referred to as the said Act. The object of the Act according to its preamble was to provide for the maintenance of certain essential services. Under section 3, the employ--ment to which the Act is to apply is every employment under the Central opinion of the central Government is essential for securing the defence or the security of Pakistan or any part thereof or for the maintenance of such supplies or services as relate to any of the matters with respect to which the Central Government has the power to make laws and are essential to he life of the community, and notified by the Central Government declaring that the Act will apply to such an employment or class of employment.
Section 5 of the Act is in two parts. Its subsection (1) firstly makes certain specific acts on the part of the persons engaged in any employment or class of employment to which the Act applies offences and the other part makes certain acts on the part of the employer of a person engaged in any employment or class of employment declared under section 3 to be in the employment or class of employment to which the Act applies, offences. Among other things discontinuance of the employment of a person engaged in such an employment without reasonable excuse is an offence on the part of the employer of the person engaged under the latter part of the section.
Section 7 provides for penalties and procedure and lays down that where the person accused of an offence under this Act is a company or other body corporate every director, manager, secretary or other officer thereof shall unless he proves that the offence was committed without his knowledge or that he exercised due diligence to prevent the commission of the offence, will be liable to punishment provided for the offence and that no Court shall take cognizance of any offence under the Act except upon complaint in writing made by servant of any Governments in Pakistan authorised in this behalf by the Central Government.
5. It is an admitted position in this case that a notification of the Central Government under section 3 of the Act declaring that the provisions of the Act shad apply to all employment in connection with the production and refining of oil and natural gas and their distribution, marketing and transmission was issued and that this notification applied to the petitioners' establishment, the Esso Standard Inc. It is also an admitted position that the Deputy Commissioner, Karachi was under hereinafter produced notification, authorised to make complaints of offences under the Act under subsection (3) of section 7 of the said Act:- "S. R. O. 100 (R)/68, dated the 13th June 1968. In exercise of the powers conferred by subsection (3) of section 7 of the Pakistan Essential Services (Maintenance) Act, 1952 (1,111 of 1952), the Central Government is pleased to authorise the Deputy Commissioners to make, within their respective jurisdictions, complaints of offences under the said Act against persons employed in connection with the production and refining of oil and natural gas and their distribution, marketing and transmission."
6. Mr. Mahmud A.I Kasuri in support of his first contention that neither the Central Government before taking the decision to launch the prosecution against the petitioner nor the learned City & A.
D. M. Before issuing bailable warrants applied their minds to the necessity or propriety of taking the action referred to the object in view of the Legislature and the purpose of the Act, which was to provide for the uninterrupted and adequate maintenance of supplies regarded by the Central Government as essential for securing the defence or the security of Pakistan or any part thereof or as are essential to the life of the community, and that the power of prosecution with which the officer administering the Act was invested, was not invoked for the purposes of the Act so much so that the complaint itself did not allege that the termination of services of Mr. Mirza had or could in any manner affect the maintenance of essential services. The learned counsel invited our attention to several Annextures to the complaint being the correspondence exchanged between the Central Government and the Labour Department at Karachi to demonstrate that this aspect of the matter was at no time considered relevant by the authorities concerned. These annextures no doubt support the learned counsel but I am unable to agree with his premises that it was necessary for the Central Government or the learned City & A. D. M. Before entertaining any complaint, to apply their minds to the aspects referred to by the learned counsel. The objects and the purposes to which the learned counsel referred are relevant only when the Central Government declare by a notification under section 3, that the Act will apply to any employ--ment or class of employment.
Again whether or not it is essential to extend the application of the Act to any employment or class of employ--ment for securing the defence or the security of Pakistan or is essential to A the life of the community are matters to be considered by the Central Government, and whether or not the opinion of the Central Government will be justiciable, need not detain us, for the petitioners do not challenge the relevant notification issued by the Central Government under section 3 of the Act. It will, therefore, follow that it was equally unnecessary to allege in the complaint that the termination of services of Mr. Mirza had in any manner adversely affected the maintenance of essential services. What was relevant for the learned Magistrate to consider was whether or not the complaint disclosed prima facie an offence under section 5 of the Act and for this purpose he had to apply his mind to the question whether the services of Mr. Mirza were terminated without reasonable excuse and this allegation had been clearly made in the complaint and it will, therefore, have to be assumed that the learned Magistrate did apply his mind to this aspect of the matter before making the impugned order.
7. Coming to the second contention of the learned counsel that the prosecution did not take care to prosecute only those officers who may be connected with the violation allegedly committed by the body incorporate, the answer is clearly provided by section 7 of the Act which makes every director, manager or other officer of the company accused of an offence liable to punishment provided for the offence and such an officer can escape 'liability only if he proves that the offence bad been committed without his knowledge or that he had exercised due diligence to prevent the commission of the offence. Section 7 makes it pLaln that the state of mind of such an officer, until he proves that he did not possess requisite knowledge or that he had exercised due diligence in the prevention of the offence, is irrelevant. If, therefore, in the complaint it is alleged that the company terminated the services of Mr. Mirza without reasonable cause the Court would be perfectly justified in proceeding against every director, manager or other officer of the company and it will be open to such an 8 officer to prove at the trial that punishment for that offence be not awarded to him as he had no knowledge of its commission or that he had exercised due diligence in preventing its commission.
8. This brings me to the next contention of the learned counsel that the prosecution launched was not bona fide but its purpose was to enrich Mr. Mirza. In support of this contention the learned counsel invited our attention to some of the Annextures to the complaint lodged by the Deputy Commissioner. In a letter dated 3rd June 1970 addressed to the Secretary, Ministry of Labour & Social Welfare, Government of Pakistan, Islamabad, by the then Joint Director, Labour Welfare, Karachi, it was recommended that the company be directed to cancel the notice of termination of Mr. Mirza's services with retrospective effect or to pay him gratuity at 70 days for each year of service as given to other employees, failing which the company be proceeded against under the said Act. The other letter to which our attention was invited is dated 16th February 1971 addressed to the Home Secretary, Government of Sind by the Government of Pakistan in which request was made that the Deputy Commissioner, Karachi be advised to file a complaint under subsection (3) of section 7 of the said Act. It is remarkable that in neither of these two letters there is any mention that reasons given by the company for terminating the services of Mr. Mirza as contained in the Company's letter dated 9-7-1969 addressed to Sub-Administrator, Martial Law Headquarter Zone 'B' were unreasonable. In fact in the letter dated 3rd June 1970, the Director --General, Labour Welfare, Karachi was at pains to point out that Mr. Mirza was "an old man of 52 years of age having 7 dependents including wife and six children below 14 years of age and his abrupt termination at this old age after 22 years of meritorious service in the company has adversely affected his health and reputation in social and commercial circles." The recommendation made would also show that there would have been no occasion to lodge a prosecution if the company had acceded to the suggestion that gratuity be paid to Mr. Mirza as given to other employees. There is, therefore, substance in Mr. Kasuri's contention that the pro. Section was resorted to for ulterior reasons to coerce the company to pay gratuity to Mr. Mirza and, therefore, in abuse of the process of Court and the proceedings must not, therefore, be allowed to continue.
9. As regards the last contention that the notification dated 13-6-1968 did not authorise the Deputy Commissioner to file the complaint against the petitioners in their capacity as employers, is pLalnly borne out by the notification itself. Under subsection (3) of section 7, the Court is to take cognizance of a n offence under the Act only upon a complaint in writing made by a servant of any Government in Pakistan authorised in this behalf by the Central Government. The acts which are offences under section 5 of the Act are in two parts, those committed by persons engaged in any employment and those committed by employer of such a person. The notification in question authorises the Deputy Commissioner to make complaints under the said Act against "persons employed" while the petitioners have been proceeded against not as "persons employed" but as "employers". Mr. Kasuri invited our attention to a few other notifications under subsection (3) of section 7 of the said Act to show that the authorisa--tions given are either limited in respect of a particular person or persons serving or jointly in respect of offences under the Act. In any event, the Act itself makes a distinction between offences committed by the employer and the employee and since the authorisation in this particular case is confined to "persons employed" the Deputy Commissioner had no authority to lodge any complaint against the petitioners as employers. The learned Magistrate consequently had no jurisdiction to take its cognizance.
10. The result is that Criminal Miscellaneous Application No. 273 of 1971 is allowed, Criminal Miscellaneous Application No. 250 of 1971 and Constitutional Petition are dismissed, the former having become infructuous as prosecution against the petitioner has been withdrawn and the latter as being redundant.