' ATAULLAH SAJJAD (CHAIRMAN).-This is a complaint under section 53(1-A), read with sections 15 and 22-A of the Industrial Relations Ordinance, 1969, and Regulatioa 32(1) & (2) of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973. The complainant in this case is Mansab Ali, who is the General Secretary of Pakistan Telephone Operators Union (Regd.), Sargodha Division. Out of the four respondents named in the complaint, we summoned only two I. e. Zafar Ali, Divisional Engineer, Sargodha Division and Mohammad Yasin, ssistant Engineer (Trunks), Sargodha.
2. The allegations contained in the complaint are that the respondents with the active connivance of some higher authorities let loose a reign of repression generally against the members of the Collective Bargaining Agent, but the complainant was singled out as a special target. It is alleged that five office-bearers of the Union were transferred due to their Trade Union activities, but the orders of transfer of the complainant and four others were suspended by the then acting Chairman, Ch. Ghulam Hussain. It is also alleged that a number of criminal cases wore manoeuvred by the respondents against the complainant and some others, within a span of about three months, commencing from 22-1-76 to 15-4-76. Two other cases were registered against the complainant on 23-9-1976 and 28-9-76. Out of these two, the first case was under section 506, P. P.
C. And the other was for possession of an unlicensed revolver. A move was made by Mr. Bashir Khadim, Divisional Engineer, for the detention of the complainant under sections 43 and 49 of the Defence of Pakistan Rules, but the Special Tribunal returned the case with the observation that the provisions of the Defence of Pakistan Rules were not attracted. We have it from the evidence of Mohammad Yaqoob, Sub-Inspector of Police Station, Gantt., Sargodha, who appeared before us as a Court witness on 18-6-77, that in reply to the charges against him, the complainant had referred to the affairs of the Union and his dispute with the officers of the Telephone Department. In cases Nos, 185 and 429 registered on 1-4-76 and 23-9-76 respectively. He had taken the stand before the Police that the Divisional Engineer was giving support to his adversaries on account of the fact that he had divulged the misdeeds of some of the officers who had involved him in criminal cases.
3. The case came up for hearing on 25-6-1977 in the presence of the respondents. Mr. Mshmood Zeman, their learned Counsel, raised a preliminery objection that the respondents belonged to the category of the Government servants who were removable by the Central Government, and the provisions of section 197 of the Criminal Procedure Code provided a bar against the initiation of the criminal proceedings against them in the absence of sanction from the Central Government.
Arguments were addressed to us on 25-7-77 when it was conceded that one of the respondents, namely Mr. Mohammad Yasin, Assistant Engineer, Sargodha Division, was not removable by the Central Government. It was, however, asserted that since he performs functions in a sphere in which the Central Government was the final authority, sanction was necessary also in his case. The words of precondition contained in section 197, of the Criminal Procedure Code, are to be construed stcrty, and as the section gives protection only to those public servants who are removable by the Central Government, the case of Mr. Mohammad Yasin dces nct fall within the pale of section 197 of the Criminal Procedure Code. It, therefore, cannot be claimed on his behalf that previous sanction of the Government is necessary for his prosecution. We have now to consider whether Mr. Zafar Ali, respondent No, 1, who is removable by the Central Government is entitled to the protection of section 197 of the Criminal Procedure Code.
7. Mr. Mahmocd Zeman, the learned Counsel for the respondents, relied on subsection (2) of section 5 of the Criminal Procedure Code, and said that in the absence of any clear indication by the Legislature, the provisions of section 197 will be applicable to all the Government servants who are performing their functions in the industrial sphere. Subsection (2), of section 5 of the Criminal Procedure Code, relied upon by Mr. Mahmood Zaman clearly sass that the applicability of the Criminal Procedure Code to offences under any other law would he "subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences". The offence of unfair labour practice is a creation of the Industrial Relations Ordinance, and we have to see whether this Ordinance explicitly, or by necessary intendment, does away with the formality prescribed in section 197 of the Criminal Procedure, in relation to Government servants who fall within the category of "employer" as defined in clause (viii), of section 2, of the Industrial Relations Ordinance, 1969. Mr. Mahmood Zaman also relied upon the judgment of the learned Senior Member of the National Industrial Relations Commission, Mr. Mamoon A. Kazi, in case West Pakistan Road Transport Worker,' Uuion, Rawalpindi v. The Managing Director (Technical), Punjab Road Transport Board, Lahore and another wherein the objection raised on the basis of section 197, of the Criminal Procedure Code, was upheld by the learned Senior Member, and was observed that the accused in that case being removable by the Government of the Punjab, the prosecution could not proceed without the required sanction. Mr. Asghar Khadim, the learned Counsel for the complainant, on the other hand, submitted that there is no indication in the Industrial Relations Ordinance that section 197 was applicable to the Government servants who come within the category of "employer". It was his contention that by necessary intendment the Legislature excluded the application of section 197 of the Criminal Procedure Code, to the Government Servants accused of unfair labour practice.
5. In order to find out whether a Government Servant who has been transplanted as an employer within the framework of Industrial Relations Ordinance carries with him the protection under section 197 of the Criminal Procedure Code, we may have to refer to certain provisions of the Industrial Relations Ordinance and the Regulations framed thereunder. In the first place. The1 definitions of 'employer' as contained in the sub-clause (c), clause (viii), of section 2 of the Industrial Relations Ordinance, 1969, is so general in terms that it cannot be said that the intention was to give any special status to the Government servant as "employer". It is stated in this sub- clause in respect of establishments run by or under the authority of any Department of the Federal Government or the Provincial Government that the authority appointed in this behalf or, where no authority is appointed, the head of the Department shall be the "employer". Again, while making a "Special Provision" in the same clause, for the purpose of distinction between the categories of workers and officers, it has been clarified that in the Departments run by the Federal Government or the Provincial Government persons belonging to managerial, secretarial, directional and supervisory staff will be deemed to fall within the category of 'employer'. While the mind of the Legislature was adverted to the question of making special provision for the Governments Servants who fall within the category of employer, one would expect that it should have also been clarified if any other special provision was intended to be applied to the Government servants falling in that category. On general principles also, we think that it could not be the intention of the Legislature to create two categories of "employers", one of which could be prosecuted straightaway, and the other who carried with them the protection of section 197 of the Criminal Procedure Code. The Industrial Relations Ordinance in that case could not run in a uniform manner and the whole object of providing punishment for unfair labour practices could be frustrated. To illustrate our point, we may mention that some of the Steel Mills are being managed by the Government, while some others are run by private enterprisers. An anomalous position would arise in the same industry if we hold that the Government Servants in this industry are protected by the provisions of section 197 of the Criminal Procedure Code.
6. The scheme of the Ordinance otherwise negatives the assertion that the intention of the Legislature was to give protection of section 197 to the Government servants who perform functions within the orbit of the Industrial Relations Ordinance. Subsection (9) of section 22-A of the Industrial Relations Ordinance, 1969 gives the Commission the power to initiate prosecution, trial or proceedings etc. On the application of a party or "of its own motion". The plenary powers given to the Commission for initiating prosecution and trial etc. Are unfettered, and the words used are of such wide import that it cannot be asserted reasonably that it was intended to impose a rider in respect of trial of Government servants. Where the Legislature want to impose a pre-condition on the exercise of any power, they make it very clear. Under section 22-F, the Commission has been authorised to frame Regulations with the approval of the Government, Inter alia, providing for-
(i) procedure including rules of evidence for adjudication of the Industrial Disputes.
(ii) procedure including rules of evidence for trial of offences, and WO procedure for dealing with unfair labour practice.
' It is to be pointed out that in view of subsection (1) of section 22-F of the Industrial Relations Ordinance, these Regulations prevail "notwithstanding anything inconsistent therewith contained In the Evidence Act, the Code of Criminal Procedure, the Code of Civil Procedure, or ony other law for the time being in force". The Commission has framed Regulations prescribing the manner of trials before it and in view of the language of subsection (1) of section 22-F of the Industrial Relations Ordinance and subsection (2) of section 5 of the Criminal Procedure Code, the Regulations will have ascendancy over the Criminal Procedure Code.
' The Criminal Procedure Code as such has not been applied to the proceedings before Labour Courts or the National Industrial Relations Commission. All that is said in section 36 of the Industrial Relations Ordinance, is that Labour Courts while trying criminal cases shall follow "as nearly as possible" summary procedure as prescribed in the Criminal Procedure Code.
7. As stated above, the powers given to the Commission under section 22-A of the Industrial Relations Ordinance, to start proceedings suo motu militate against the proposition that section 197 of the Criminal Procedure Code, was intended to be applied to Government servants who fall within the definition of "employer" within the sphere of Industrial Relations Ordinance.
8. We may state that even if we had agreed with the contention of the learned counsel for the respondents, Mr. Mahmood Zairian, that section 197 of the Criminal Procedure Code, was applicable to the case of Zafar Ali, respondent No, 1, we would not have on merits upheld his objection. The allegations contained in the complaint are that five officers were transferred for their Trade Union activities, which action falls within the mischief of unfair labour practice. It has been asserted that a spate of criminal cases were manoeuvored by the respondents against the complainant, and that his detention orders were procured by the Department which later on had to be withdrawn because the Tribunal concerned found that the case was not covered by the provisions of the Defence of Pakistan Rules. Ali these actions are said to have been committed for curbing the Trade Union activities of the complainant, and can, by no stretch of imagination, be termed to have been committed by the respondent while acting or purporting to act in the discharge of his official duties. These acts decidedly stretch beyond the pale of protection provided by section 197 of the Criminal Procedure Code, and cannot be said to have been performed in the discharge of his official duties. The mere fact that an opportunity to commit an offence is furnished by the official position of an accused person is not sufficient to justify the view that the act complained of is within the scope of official duty. The offence will not be covered by section 197 of the Criminal Procedure Code, merely because it is committed by a public servant when he is in his office.
9. We, therefore, overrule the objection raised by Mr. Mahmood Zaman and proceed with the case.
We may say with great respect that the case entitled West Pakistan Road Transport Workers' Union, Rawalpindi v. The Managing Director (Technical), Punjab Road Transport Board, Lahore and another was not correctly decided, and we, in all humility, dissent from it.
1974 CLC 106 1974 L L C 106