' Z. A. CHANNA , J.-This petition calls in question the validity of the proceedings taken against petitioners 1 to 6, who are said to be the members and office-bearers of the Indus Jute Mills Mazdoor Union, by the National Industrial Relations Commission, hereinafter for the sake of brevity referred to as N. L R. C., resulting in the judgment of the N. I. R. C., dated 10-7-1976, by which the said petitioners were convicted of an offence under section 16 (1) (d) of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Ordinance, read with section 53 of the Ordinance, and each of them was sentenced for the said offence to undergo R. I. For a period of one month.
Petitioner No, 7 is Vice-President of the Indus Jute Mills Mazdoor Union and is said to be the close associate and friend of petitioners 1 to 6. We had by a short order dated 3.11-1976, dismissed the petition with costs and we now proceed to give the reasons in support of the said order.
2. The facts which have given rise to this petition, briefly stated, are that on 21-8.1975 an incident occurred at the Indus Jute Mills Ltd., Dhabeji, District Thatta, wherein petitioners 1 to 6 alongwith others are said to- have forcibly entered the office of respondent No, 2, who is Manager of the said Mills and are said to have insulted him, beaten him, and wrongfully restrained and confined him and also forced him to write an order for immediate purchase of plastic sheets for workers not residing within the Mills Colony. As a result of this incident, a report was lodged by respondent No, 2 with the police, who challaned petitioners 1 to 6 and 4 other persons in the Court of S. D. M., Thatta, for offences under sections 504, 323, 142, 342 and 341 P. P. C. This case, however, was later on withdrawn by the Government. In respect of the same incident, a complaint was also lodged by respondent No, 2 before the N. I. R. C. Against petitioners 1 to 6 for an offence under section 16 (1) (d) read with section 53 of the Ordinance. The case was beard by the Senior Member of the N. I. R. C., who, by his judgment, dated 10-7-1976, as already stated, convicted petitioners 1 to 6 and sentenced each of them to undergo R. I. For one month.
3. Mr. Obaidur Rehman, the learned counsel for the petitioners, has assailed the proceedings before the N. I. R. C. And the conviction of petitioners 1 to 6 on the grounds:-
(i) That the N. I. R. C. Exceeded its jurisdiction in taking cognizance of a case which related to a Union, which was neither an industry-wise Trade Union nor a federation of such Trade Unions ;
(ii) that the complaint before the N. I. R. C., being from a private individual and without authorization from the Registrar of Trade Unions, was not maintainable; and
(iii) that the prosecution and conviction of petitioners 1 to 6 are violative of Article 13 of the Constitution.
4. Subsection (8) of section 22-A of the Ordinance details the functions of the N. I. R. C. Clause (1) of the said subsection, before its amendment by Act XVI of 1975, read as follows 1- "(f) to try offences in respect of matters relating to any of its functions ;".
It may be pointed out that the functions of the N. I. R. C., to which reference was made in the above clause, mainly related to industry-wise Trade Unions, federations of such Trade Unions and federations at the national level. However, by Act XVI of 1975, the aforesaid clause was substituted by the following - "( f ) to try offences of unfair labour practice punishable under :- (i) section 53, other than subsections (1) and (5) thereof 1 and
(ii) any other section, in so far as they relate to employers or workers in relation to an industry-wise Trade Union, a federation of such Trade Unions, a federation at the national level or officers of such Union or federation ;".
It will thus be seen that under the amended clause the N. I. R. C. Can try an offence of unfair labour practice punishable under any of the provisions of section 53 of the Ordinance, other than those contained in subsections (1) and (5), by whomsoever it is committed, and the qualification or limitation that the offence should be in relation to an industry-wise Trade Union, a federation of such Trade Unions, a federation at the national level or officers of such Union or federation is applicable only to offences other than those specified in section 53, subsections (2) to (4) and (6) to (7). The offence of which petitioners 1 to 6 have been convicted was under subsection (2) of section 53 read with section 16 of the Ordinance, and therefore, was clearly within the jurisdiction of the N. I. R. C., despite the fact that the said petitioners were members and officers of a Trade Union which pertained to a single Mill.
5. In support of his second contention, namely, that a complaint from a private party without authorization cannot be maintained by the N. I. R. C., Mr. Obaidur Rehman relied upon section 13 (c) of the Ordinance, which reads as follows : - "13. The following shall be the powers and functions of the Registrar:-
(c) to lodge, or authorize any person to lodge, complaints with the Labour Court or Commission for action, including prosecution, against Trade Union employers, workers or other persons for any alleged offence or any unfair labour practice or violation of any provision of this Ordinance or for expending the funds of a Trade Union in contravention of the provisions of its Constitution ;".
' It was contended by Mr. Obaidur Rehman that in as much as the above section empowers the Registrar to lodge, or to authorise any person to lodge, complaints with a Labor Court or the N. I. N.
C., a complaint to the N. I. R. C. Or the Labour Court, by a person not authorized by the Registrar of Trade Unions is not maintainable. We find no force in this contention. Merely because the Registrar is empowered to lodge complaints or authorize any person to lodge a complaint, does not mean that no other person can institute proceedings or file a complaint before the N. I. R. C. Clause (a) of subsection (9) of section 22-A of the Ordinance empow the N. I. R, C., on the application of a party, or of its own motion, to initiat prosecution, trial or proceedings, with regard to any matter relating to its B functions. Since one of the functions of the N. I. R. C., as already shown is to try offences under section 53 (2) of the Ordinance, it can do so on the complaint of a party. It is not disputed that respondent No, 2, in respect of whom the offence was committed, was a party concerned.
6. It only remains to be considered whether the prosecution and the conviction by the I. R. C. Of petitioners 1 to 6 are violative of clause (a) of Article 13 of the Constitution. The said clause is as follows :- "13. No person-
(a) shall be prosecuted or punished for the same offence more than once;".
' The aforesaid clause is new and did not find a place in any of our previous Constitutions. It is wider in scope than the corresponding provisions contained in clause (2) of Article 20 of the Indian Constitution, which is to the effect that "no person shall be prosecuted and punished for the same offence more than once," and is more akin to the double jeopardy clause in the American Constitution.
7. It was submitted by the learned counsel for the petitioners that petitioners Nos. 1 to 6 were prosecuted and convicted by the N. I. R. C. Of the same offence for which they were prosecuted before the learned S. D. M., Thatta, because the prosecution before and conviction by the N. I. R. C.
Was founded on the same facts which formed the basis of the prosecution before the learned S. D.
M. Support for this proposition was sought from a decision in the Indian jurisdiction reported in AIR 1951 Cal.
452. The facts of that case are that one M filed a complaint against B and others alleging that they had assaulted her with blows and slaps. Upon this complaint, B and the others were summoned under section 352, but on the day fixed for the hearing, the complainant was absent and accordingly the accused were acquitted in accordance with the provision of section 247, Cr. P. C.
Thereafter, a second complaint was filed by M against the very same persons and with respect to the same occurrence, making virtually the same allegations against them. However, in the second complaint, the place of assault was stated to be the kitchen of M. Upon this complaint being filed, the accused were summoned to answer charges punishable under sections 323 and 504, I. P. C. It was held by a learned Single Judge of the Calcutta High Court, on the basis of the provisions contained in section 403, Cr. P. C., that since B and his companions were tried with respect to the allegations contained in the first complaint and acquitted, "It must be taken that they were acquitted with respect to all the offences which can be said to have arisen upon the allegations made in the petition of complaint and in the initial deposition, It follows from this that the petitioners could not be tried a second time for any offence which was based on the very same allegations. The second petition related to the identical incident." It was further held that since the offence of assault charged against the accused could not have been committed if they had not committed criminal trespass, the offence of trespass is not distinct from an offence of an assualt, but both the offences are interdependent.
8. The provisions of section 403, Cr. P. C., on the basis of which th above decision was given, however, are substantially different from the provisions contained in Article 13 (a) of the Constitution. Subsection (1) of section 403, Cr. P. C. Not only bars subsequent trial of a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for the same offence, but further bars his trial on the same fact for any other offence for which a different charge from the one made against him might have been framed under section 236, or for which be might have been convicted under section 237. It will thus be seen that an extended meaning has been given to "same offence" by including within its fold other offences for which, on the same facts, a charge under section 236 might have been framed or a conviction may have been recorded under section 237. The bar in the Constitution, however, is against prosecution or punishment for the same offence for which a person has been previously tried or convicted. No extended meaning of 'same offence,' as in section 403, Cr. P. C., thus can be given to this expression as used in the Constitution. The test for the 'same offence' is whether the former offence and the offence subsequently charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction of the other, not that the fact; relied on by the prosecution are the same at the two trials. Furthermore, the previous prosecution must be before a Court which had jurisdiction to try both the first offence alleged as well as the offence for which the accused is being subsequently prosecuted. There cannot be a valid prosecution before a Court if the Court had no jurisdiction to try the offence for which the accused is being subsequently tried.
' Mr. Mohammed All Sayeed, the learned counsel for respondent No, 2, strongly contended that the prosecution of petitioners Nos. 1 to 6 before the learned S. D. M., Thatta, was for altogether different offences than the one of which they have been convicted by the N. R. C., though both the prosecutions related to and arose out of the same incident. In support of his contention, the learned counsel referred us to the charge-sheet sent up by the police against petitioners 1 to 6 before the learned S. D. M. A perusal of the said charge-sheet shows that the said petitioners were challenged for the alleged commission of offences under sections 504, 323, 142, 342 and 341, P. P. C.
The said sections respectively deal with offences of intentionally insulting, with intent to provoke the person insulted to commit breach of peace, voluntarily causing hurt, being member of an unlawful assembly, wrongfully confining any person and wrongfully restraining any person. The learned counsel submitted that the trial and conviction of petitioners 1 to 6 by the N, I. R. C. Was in respect of an offence of unfair labor practice under section 16 (1) (d) read with section 53 (2) of the Ordinance. Section 15 (1) (d) of the Ordinance, is to the following effect :- "16.-(1) No workman or Trade Union of workmen and no person acting on behalf of such Trade Union shall-
(d) compel or attempt to compel the employer to accept any demand by using intimidation, coercion, pressure, threat, confinement to or ouster from, a place, dispossession, assault, physical injury, disconnection of telephone, water or power facilities or such other methods."
It will be seen that the essential ingredients of an offence under the aforesaid section are -
(a) that an employer should be compelled or an attempt should be made to compel him to accept any demand ;
(b) such compelling or attempt to compel should be done by using intimidation, coercion, etc. ; and
(c) it should be done by a workman, a Trade Union of workmen or other persons acting on behalf of such Trade Union.
' The ingredients of an offence under section 16 (1) (d) of the Ordinance are thus wholly different from the ingredients of the offences for which petitioners Nos. 1 to 6 were prosecuted before the learned S. D. M. Such offences do not require that the offenders should be workmen, a Trade Union of workmen or persons acting on behalf of such Trade Union nor do they require that the offence should be in relation to an employer or that the employer should be compelled to accede to a demand by use of unlawful means, In fact, the charge-sheet submitted against petitioners 1 to 6 before the learned S. D. M. Makes no mention whatsoever of any one having compelled or forced respondent No, 2, by use of unlawful means, to accede to any demand
(1) AIR 1951 Cal. 452 ' of workmen or to sign a paper sanctioning a demand, which was the charge against them before the N. I. R. C.
' In support, of his contention that the conviction of petitioners 1 to 6 by the N. I. R. C. Was for a different offence and the bar against a second trial enshrined in Article 13 (a) of the Constitution irs not attracted in the instant case, the learned counsel for respondent No, 2 relied upon the decision in State of Bombay v. S. L. Apte (I). That was a case wherein the question arose whether a conviction for an offence under section 409 of the Penal Code barred a trial and conviction for an offgrice under section 105, Insurance Act. It was held in that case by the Supreme Court of India that even assuming that the allegations to be found in the two complaints were identical, in order to attract the bsr imposed by either Article 20 (2) of the Constitution or section 26 of the General Clauses Act on a second punishment, it was necessary further that the ingredients which constituted the two offences should be identical. On a comparison of the provisions of section 409 with those of section 105 of the insurance Act, it was held that the two offences were distinct and hence there was "no question of the rule as to double jeopardy as embodied in Article 20 (2) of the Constitution being applicable'. The Indian Supreme Court in -that case has referred to its earlier decisions on the subject reported in AIR 1957 SC 458 and AIR 1957 SC 592, as also the following passage from Willoughby's "The Constitution of the United States," Volume 2, p.Sge 11 58 :- "Cases may occur in which the same act may render the actor guilty of two distinct offences ; . . . . . .
In such cases the accused cannot plead the trial and acquittal, 151.'16 'Conviction and punishment for one offence in bar to a conviction for the other."
' We have already referred to the fact that the rule in the American Constitution against double jeopardy is more akin to the immunity granted under our Constitution. The words of the Fifth Amendment in the American Constitution are "Nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb."
' In Albercht v. United States, the question arose whether separate convictions for possessing liquor and selling liquor were barred by the Fifth Amendment. Repelling the contention that the two were same offences, Brandeis, J., observed :- "The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offences. One may obviously possess without selling ; and one may sell and cause to be delivered a thing of which he has never had possession ; and one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor stuff which he possessed does not render the possession and the sale necessarily a single offence. There is nothing -in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction." We have already shown that the ingtediants,which constituted the offences
(1) AIR 1961 SC 578 (2) (1929),2D 'PKEd 505 ' for which respondents 1 to 6 were being prosecuted before the learned S. D. M. Thane, are materially different from the ingredients constituting the offence for which they were prosecuted and convicted by the N.
1. R. C. The mere fact that the two prosecutions arose out of the same incident or some of the facts in the two prosecutions are common, in our opinion, will make no difference.
' For the foregoing reasons, we consider that there is no merit in this petition. We accordingly dismiss the same with costs. The petitioners 1 to 6. Who were released on bail by this Court, should surrender to their bail and serve out the remainder of their sentence.