GHULAM HUSSAIN (MEMBER)..-Mohammad Akram, the appellant, has preferred this appeal from the order dated 24-2-1974 of a learned Single Bench of the Commission hereafter referred to as the trial Member, dismissing a complaint filed by the appellant with a view to getting Mr. K. T. Kidwai, Chairman of the Railway Board, Lahore and Mr. Ahmed Raza, Divisional Superintendent, P. W. R., Karachi, both hereafter referred to as the respondents, punished under section 53, Industrial Relations Ordinance, 1969, hereinafter referred to as I. R. O., read with section 15(c) thereof.
2. Broadly speaking, the facts alleged in tine complaint were to the effect that upon failure of the respondents to implement the order dated 3-4-1973 of the learned 5th Sind Labour Court, Karachi, directing his confirmation to be made in accordance with the award of the learned industrial Court, Central Zone, published in the official Gazette dated 13-10-1966 the appellant made an application to the learned Sind Labour Appellate Tribunal, Karachi, under section 38(5), I. R. O., for punishing the respondents for committing the contempt of the learned Labour Court by the aforesaid failure.
Subsequently, he, upon the respondents' giving an assurance that they would positively implement the order of the learned Labour Court withdraw that application. After this, the respondents have resiled from the assurance, with a view to victimising the appellant for his being a member of the Executive of the P. W. R. Workers' Trade Union (Regd.), and for his striving bard to get this Union elected as C. B. A. against the rival Union, which is a pocket Union of the Railway Administration. In this way, the respondents have committed the unfair labour practice on the part of an employer, punishable under section 53, I. R. O.
3 The learned trial Member, after calling written comments from the respondents, and perusing the complaint, the said written comments, and the replication of the appellant, dismissed the complaint, without examining the complainant car any witness on his behalf. While postponing the issue of the process at the initial stage, the learned trial Member did not assign the complaint to anybody for an inquiry into the truth or falsehood of the complaint, and report.
4. On merits, the learned trial Member took notice of a plea of the respondents that the appellant and certain other persons in his position, with whom, he is being treated on an equal footing, are being automatically treated as confirmed in accordance with the order of the learned Labour Court.
He however, did not give any finding as to the truth of falsehood of this plea, and for that matter, about the truth or falsehood of the complaint instead, he dismissed the complain; on the sole ground that the case does not fall within the jurisdiction of the Commission, inasmuch as "If Labour Court has not been implemented, the petitioner can still go before the Labour Appellate Tribunal. In any case, the Commission does not come into the picture".
5. The basic point raised by the appellant therefore is that the case is patently for punishment of unfair labour practices therefore, it clearly fads within the jurisdiction of the Commission. The second point raised in the appeal is that dismissal of the appeal is vitiated by the circumstance that it was ordered without recording first of all a statement of the appellant-complainant we have heard the arguments of both the parties on the first point and given our anxious consideration to them, On the second point, the arguments, if at all advanced, have not been lively enough, because the fate of the appeal hinges on the first point.
6. On the aforesaid point of jurisdiction we are struck by the following para. 1 of the impugned order :- "As the petitioner had alleged discrimination against him by to respondents for the reason of his being the executive member of the Pakistan Western Railway Workers' Union, cognizance was taken by me in the matter,"
We are of the opinion that the learned trial Member, having himself, in this way, treated the case as one for punishment of an unfair labour practice and hence cognizable by the Commission, could not have justifiably concluded at the end of the order that "the case does not fall within the jurisdiction of the Commission", or, in other words that the Commission is incom--petent to inquire into the truth or falsehood of the allegation of unfair labour practice. We further find, consequently, that the learned trial Member ought to have recorded his finding, after holding a due inquiry, as to whether the evidence and law afforded sufficient ground to summon the respondent as accused persons. The mere fact that the aforesaid acts and omissions of the respondents amount to contempt of the learned Labour Court and can be punished as such, try the learned Labour Appellate Tribunal does not debar the Commission from further, puni.3hing the said acts and under section 53, I. R. O, if they constitute of offence of unfair labour practice, too. The Tribunal and the Commission, both, can take their respective proceedings independently of each other. We, therefore, feel constrained to reverse the finding of the learned trial Member on the point of jurisdiction.
7. On the point of procedure, reliance is apparently placed on section 200, Cr. P. C., which provides that "A Magistrate taking cognizance of an offence on complaint stall at once examine the com-- plainant upon oath, and the substance of the examination shall be reduced to writing and shall be signed by the complainant and also by the Magistrate." The requirements of this section have not been fulfilled in this case, therefore, the first question which arises for consideration is about the effect of the non-compliance of these provisions, while the second question which arises for disposal is whether the aforesaid section inapplicable to this case, having regard to section 22- B(3), I. R. O., which firstly lays down that the Benches of the Commission shall, in relation to cases based on allegations of unfair labour practices brought before the Commission for trial of offences, perform such functions and exercise such powers as are performed and exercised by a Labour Court", and secondly provides that "in the performance of those functions and in the exercise of those powers, the Benches shall, unless otherwise provided in this Ordinance, follow the procedure laid down in the regulations to be made under section 22-F". As to the first question, we find, that no matter whether non-compliance of the provisions o section 200, Cr. P. C., in a case such as this whose dismissal is based on ground other than falsity of the complaint, have or have not prejudiced the case of the appellant-complainant and vitiated the proceedings, the ends o justice demanded that he should have been examined. As to the second question, we find, in the first instance, that applicability of the said section of the Code of Criminal Procedure is (a) by absence of any contrary provision either in the I. R. O. or in the regulations made under section 22-F thereof, called the National Industrial Relations Commission (Procedure and Func--tions) Regulation, 1973, and (b) the specific provision of Regulation 31 of the Regulations that subject to the provisions of these regulations prescribed under the Code of Criminal Procedure, 1898 (Act V of 18913), shall apply to) the proceedings in relation to trial of offences before the Commission. From this point of view the section should be held to be applicable to this case, but there is one more aspect to be considered, namely, that the section deals with the proceedings before a Magistrate, while the complaint in question was before a Bench of the Commission competent to exercise, by virtue of the foregoing provisions of section 22-E (3), I. R. O. the Magisterial powers vested in a Labour Court by virtue of section 36 (3), I. R. O., but not declared to be a Magistrate. After duly considering all these aspects of the law, with reference to their contexts, we incline to hold that section 200, Cr. P.
C. is applicable to complaints filed before the Commission, despite the provisions of Regulation 31, aforementioned being in need of a suitable amendment.
8. The case being remandable in view of both the foregoing findings, we are absolved of the need to go into some other points of law which could also be discussed, for instance, as to whether the Commission, in the event of finding a complaint to be beyond its jurisdiction, can dismiss the complaint or "return it for presentation to the appropriate Court with an endorsement to that effect"
(as provided by section 201, Cr. P. C.).
9. The result is that we accept the appeal, set aside the impugned order and remand the case for fresh decision after the holding of a due inquiry in accordance with the law and the foregoing observations. The appellant is directed to appear before Mr. Mamoon A. Kazi, Member on 16-2-1976, for further proceedings.