This is a revision application against the order of the Indus--trial Court, West Pakistan, Karachi, acquitting the respondent under section 245 (1) of the Criminal Procedure Code.
2. The petitioner Qazi Salim was in the employment of Messrs National Products Company, Sher Shah Colony, Karachi and was working as a Jobber. The respondent is Manager of that Company.
The petitioner was discharged from service on 23-7-1965. Subsequently there had arisen some dispute between the company and its workmen and a settlement was reached on 7-8-1966. Apart from other questions the re-instatement of the petitioner was also considered and it was agreed that he would be re-instated with all the benefits including wages for the entire period of unemployment. In pursuance of this settlement the petitioner was taken back in service on 10-8- 1965 and was paid full wages. However, he was re-instated not as a Jobber but he was employed as a weaver. It was alleged by the Petitioner that he protested against his new assignment and insisted that he should be re-instated as Jobber which post he had originally held before his service was terminated but the management did not agree and on the contrary stopped him from work on 21-8-1965. Aggrieved by this he filed a complaint against the respondent on 27-12-1965 as the refusal of the respondent to re--employ him as Jobber contravened the provisions of section 26 of the Industrial Disputes Ordinance which punishes the violation of the terms of settlement or award which is binding under the Ordinance.
3. Preliminary enquiry under section 202, Cr. P. C. Was held in February 1966, and process was issued against the respondent. On the date of hearing the statement of allegations as required by section 242, Cr. P. C. Was read over to the respon--dent and he pleaded not guilty. On subsequent hearings the evidence was recorded. The petitioner appeared in the witness box in support of his contention and did not examine any other witness. The statement of the respondent under section 342 was recorded and it reads as under:- "When the Memorandum of Settlement was arrived at B Shift was closed. The complainant was working as a Jobber in the B shift before it closed. After agreement the complainant came to me I explained that as B shift was not working he was prepared to take as weaver on the same pay. The complainant could (see) as much as could turn out. I then kept him as a weaver on piece rate basis. He earned Rs. 28.72 in all for four days, that is average of Rs. 7.18. As a Jobber he would have earned Rs. 7.00. I have not contravened Memorandum of settlement nor changed the service condition."
The respondent also examined one witness, Hatim, who stated that when the petitioner was retaken in service `B' shift was totally closed and the petitioner voluntarily offered that he was willing to work as weaver. He never complained either orally or in writing that he should be employed as Jobber. He also added that the petitioner was a gainer as a weaver.
4. On the appraisal of the evidence the learned Chairman of the Industrial Court observed that the petitioner had not given true evidence and further he had voluntarily offered to work as a weaver and made no complaint against it and was also a gainer while working as weaver and, therefore, in his opinion the petitioner had waived his right by voluntarily accepting the post of weaver. In conclusion he stated that no offence was made out against the respondent who was, then, acquitted.
5. Aggrieved by this acquittal the present revision petition was filed. The findings of the learned Chairman, were challenged on merits. It was pleaded that the learned Chairman had totally ignored the clear admission of the respondent and his findings were contrary to the facts on record and the respondent was guilty of the violation of the terms of settlement which he was bound to carry out.
6. A preliminary objection was taken by the learned counsel for the respondent that the present revision petition was not maintainable as there was nothing in the Industrial Disputes ordinance which gave powers to the High Court to revise the decision of the Chairman, Industrial Court, under its revisional jurisdiction. In this connection the relevant provision regarding the procedure and power of the Industrial Court is embodied in section 11 of the Industrial Disputes Ordinance, 1959, which held the field at the time when the present revision petition was filed. This section is divided into, four subsections but the subsection which we are concerned in this revision petition is subsection (3). It lays down that the Court shall for the purpose of trying an offence under sections 26 and 28 have the same powers as that of a Court of the Magistrate of the first class, under the Code of Criminal Procedure and shall for the purpose of appeal from a sentence passed by it be deemed to be a Court of session under that Code. The Court referred to in this sub-section is the Industrial Court constituted under the Ordinance. It comprises of a Chairman and two members, one from the industry and the other from the labour. All the three are appointed by the Government. The role of the members is of an advisory capacity. Although the Chairman is bound to consult them but their opinion is not binding upon him. He has to form the opinion after consulting the members.
7. It is clear from the subsection (3) referred to above that against the sentence which is passed by the Industrial Court an appeal is provided but neither in this subsection nor any where in the Ordinance there is any provision for revision against the decision of the Industrial Court. In the absence of any ex--press provision relating to revision in the Ordinance it is to be seen whether this can be implied. This will be possible only if it is held that Industrial Court is an inferior criminal Court subject to the revisional jurisdiction of the High Court. The solution of this problem must be found in the Industrial Ordinance which is an independent legislation, the object of which as expressed in the preamble, is the investigation and settlement of industrial dispute and for the matters connected therewith. A machinery is provided to resolve the dispute and the matters which agitate their mind within the scope of the Ordinance. Industrial Court is constituted under the Ordinance as part of that machinery for the adjudication of the aforesaid disputes and matters.
8. Dealing with the question involved in the present case, confusion may arise from the nature of the powers to be exercised by the Industrial Court. It is laid down by section 11 (3) that the Court shall have the same powers as that of the Court of Magistrate of First Class under the Code of Criminal Procedure. In my view although the Court has been invested with the powers of the Magistrate of First Class yet it is not possible to hold that the Court is an inferior criminal Court within the meaning of section 435, Cr. P. C. The industrial Court is constituted under the Ordinance and not under the Criminal Procedure Code. Simply because for the trial of the offence under section 26 or 28 of the Ordinance he can exercise the powers under the Criminal Procedure Code, it cannot be termed as a Court constituted under that Code so that the various provisions of the Criminal Procedure Code in matters of appeal or revision may be attracted. Although the right of appeal was provided against the sentence passed by the Industrial Court by sub--section (3) yet the Ordinance is silent with regard to the revision. It, therefore, follows that the Legislature did not intend that any such revisional powers should be exercised by the High Court, or any party should have right to go in revision against the order passed by the Industrial Court. It is a settled principle of law that there is no such thing as inherent right of appeal or revision but these are purely the creatures of Statute and unless these rights are clearly and expressly given by Statute no such right exists, nor is there any scope for inferring such right by implication. It may be further stated that if a new jurisdiction is given to an existing Court the usual incidence of litigation of such Court is also attracted by the exercise of that jurisdiction. In other words if a First Class Magistrate or any other Court constituted under the Criminal Procedure Code is invested with the powers to try an offence under any other enactment then the natural consequence is that the decision is open to appeal and revision as provided by the Criminal Procedure Code unless these provisions are expressly excluded by the statute itself. The power which has been conferred on the Court of revision dealing with the cases under the Criminal Procedure Code cannot be inferred by implication simply because the Court constituted under an enactment has been invested with the powers under the Criminal Procedure Code.
9. It is interesting to note that although the Industrial Court has been invested with the same powers as that of the Court of a Magistrate of first class for the trial of offence under sections 26 and 28 of the Ordinance yet for the purpose of appeal it is to be deemed to be a Court of Sessions under the Code of Criminal Procedure. If it is said that since the Industrial Court exercises the same powers as that of the Court of First Class Magistrate under the Criminal Procedure Code, the revisional jurisdiction is attracted and it is likely to create anomaly which cannot be easily ignored in view of the qualifi--cations prescribed for the appointment of the Chairman of the Industrial Court. According to section 7 (3) of the Ordinance, the Chairman shall be a person who is or has been a Judge of the High Court or a District Judge. Although for the purpose of appeal against sentence it is deemed to be a Sessions Court yet for the trial of the offence it exercises the powers of a Magistrate of the First Class under the Criminal Procedure Code. Turning to the Criminal Procedure Code, a First Class Magis--trate appointed under the Code is subject to the revisional jurisdiction of not only the High Court but Sessions Court and District Magistrate as well although the powers of the latter B two Courts are confined to certain cases so far the passing of) the final order is concerned. All the same the revisional juris--diction is there. Now in view of the qualifications, let us presume that a sitting Judge of the High Court is appointed as Chairman, can it be imagined that his decision can be scrutinized either by the Sessions Court or by the District Magistrate in exercise of their revisional powers if he passes an order which is within their revisional jurisdiction such as dismissal of complaint under section 203, Cr. P. C. Such a situation apart from being anamolous is inconceivable. To say that only the, High Court is competent to invoke the revisional jurisdiction in such case is in consistent with the provisions of section 435 to section 439 of the Criminal Procedure Code. It was in view of the qualifications prescribed for the appointment of the Chairman that although the Industrial Court was empowered to exercise the powers of a Magistrate of First Class under the Cr. P. C. It was to beg deemed to be a Sessions Court for the purpose of appeal asp even under the Cr. P. C. An appeal against the Judgment of the, Sessions Court lies to the High Court and similarly under, Letters Patent an appeal against the judgment of a Single Judge of the High Court lies to the High Court. So the provision in the, Ordinance regarding appeal in either case is not in conflict with' the existing law. It, therefore, follows that in the absence of any provision regarding revision in the Ordinance, no such revisional jurisdiction can be presumed or implied simply from the fact that the Chairman while trying a case exercises the powers of a First Class Magistrate. This is further supported by subsection (4) of section 12 of the Ordinance which reads; "any award published under subsection (2) or subsection (2-B) or any decision of the Court shall be final and shall not be questioned in any manner by or before any judicial or other authority including the High Court and the Supreme Court". Thus not only no provision for revision was made but the jurisdiction of the High Court was also expressly barred. The object was that finality must be given to the decision of the Industrial Court except where the accused person was sentenced and the appeal was provided. The object of this finality would be frustrated and this provision would be rendered nugatory in case the decision of the Industrial Court is open to revision under the Cr. P. C. Investing the Industrial Court with the powers of the First Class Magistrate under the Criminal Procedure Code does not mean that the remaining provisions of the Code are also applicable. This power is confined to the trial of the offence and nothing beyond it. In this connection it may be pointed out that besides sections 26 and 28 of the Ordinance there are various other sections in the Ordinance which provide certain offences as well as the punishment. All those cases are triable by the First Class Magistrate appointed under the Criminal Procedure Code. It will be only in those cases that the appellate and revisional jurisdiction of the superior Courts under the Criminal Procedure Code is attracted.
10. Same question arose in the case of Sakhi Muhammad v. Wajid A.I and others (PLD 1964 Lah.
426), which was decided by Anwarul Haq, J. In that case also a revision petition was directed against the order of acquittal passed by the Industrial Court, West Pakistan, Lahore. It was a case under section 28 read with section 30 of the Industrial Disputes Ordinance and it was held that the Industrial Court was not an inferior criminal Court and, therefore, the revisional powers of the High Court under sections 435 and 439 of the Code of Criminal Procedure were not attracted. It was observed that the powers of a criminal Court are conferred on the Industrial Court by special statute, namely, the Ordinance, and only for dealing with offences specified in the Ordinance itself.
His Lordship after relying upon two authorities reported in Banwari Gope and others v. Emperor (AIR 1943 Pat. 18) and Kumar Singh Chhajor and others v. King-Emperor (73 I A 199), observed that "It would be seen that the view taken by judicial authorities is that the revisional powers of the High Court can be exercised only with regard to inferior criminal Courts which are functioning under the Code of Criminal Procedure and not in respect of proceedings before criminal Courts which may be created by special statutes, although acting in accordance with the procedure prescribed in the code. On this view of the matter it appears to me that the Industrial Court, while acting as a criminal Court in the matter of offences created by the 1959 Ordinance, cannot be said to be an inferior criminal Court and for these reasons its orders are not open to revision by the High Court specially in view of the provisions contained in the order itself conferring finality on the decision of the Industrial Court".
11. I am in respectful agreement with the above dictum. The observation that "the revisional powers of the High Court can be exercised only with regard to inferior criminal Courts which are functioning under the Code of Criminal Procedure is per--tinent, Thus it is only that Court which has been constituted under the Criminal Procedure Code which can be treated to be an inferior criminal Court for the purpose of sections 435 and 439, Criminal Procedure Code, and not the Court which is constituted under any other enactment unless the enact--ment specially provides that such a Court shall be subjected to the appellate and revisional jurisdiction of the various superior Courts under the Criminal Procedure Code. His Lord--ship observed that "the treatment of the Industrial Court as Court of Sessions for the purposes of appeal against sentence would not mean that the Industrial Court has either been specially declared to be or can by necessary implication be deemed, an inferior criminal Court so as to attract the revisional powers of the High Court. This view is in accord with the view taken by their Lordships of the Judicial Committee of the Privy Council in the case already cited namely, that whatever powers are enjoyed by the High Court must be derived from the statute concerned, once it is held that the criminal Court in question is not an inferior criminal Court within the meaning of sections 435 and 439, Cr. P. C.".
12. I may also refer to the case of Hari Meah v. The State (PLD 1959 SC (Pak.) 307). It was a case under the East Pakistan Food (Special Courts) Act (X of 1956), in which an order was passed by a Special Magistrate appointed under that Act It was held that Special Magistrate appointed under that Act was not a First Class Magistrate under the Code of Criminal Procedure, and, therefore, there was no right of appeal nor any such right of appeal could be inferred from section 408 of the Cr. P. C. In that case also section 8 of the Food Act provided that "the provisions of Code of Criminal Procedure in so far as they were applicable and in so far as they were not inconsistent with the provisions of the Food Act, shall apply to all matters connected with, arising from or consequent upon a trial by a Special Magistrate appointed under the Act".
13. On the other hand, the learned counsel for the Peti--tioner relied upon the case of B. A.
Chowdhury v. Rogar Pearson (PLD 1964 Dacca 441). It was also a revision petition against the order of the Chairman, Industrial Court, dismissing the complaint which was filed under section 28 read with section 30 of the Industrial Disputes Ordinance, 1959. It was held that the revision was competent. It was observed that the reading of subsection (3) of section 11 of the Ordinance was that the Industrial Court while trying the case under section 26 or 28 had to do so as a Court of Magistrate of First Class, and since no separate procedure was provided by the Ordinance the procedure laid down by the Code of Criminal Procedure had to be followed for the trial of the offence under these two sections and in view of section 5 (2) of the Cr. P. C. The Industrial Court so far as its power to hold a trial was concerned, was a Court subordinate to the High Court and as such was subject to revisional jurisdiction of the High Court. His Lordship also considered implication of subsection (4) (of section 12) of the Ordinance and observed that "although it was final in its terms but it did not and could not take away the jurisdiction of superior Courts in respect of a decision of Indust--rial Court trying a case under section 26 or 28 of the Ordinance nor this subsection superseded or controlled the remedies that were available to the parties under the Code of Criminal Pro--cedure which is the law that governs the rights of appeal and revision in a criminal proceeding." With regard to the use of the word "decision" accruing in subsection (4) it was observed c "the "decision" mentioned in subsection (4) of section 12 of the Ordinance does not, in my opinion, include a decision (in the generic sense), in a case under section 26 or 28 of the Ordinance, but means and refers to a "decision" other than awards (which have been made appealable) in industrial dispute case". With due respect I am unable to share the view. If a finality is conferred on any decision it cannot be taken away by importing something into the statute which does not exist. No revision has been provided by the Ordinance and this provision could not be introduced by implication by referring lo another enactment specially when the decision has to be treated as final and the jurisdiction of the High Court has been expressly barred. As already observed by me above that if right of revision is made available to any party or the decision of the Industrial Court is open to revision the finality imposed by subsection (4) is not maintained. His Lordship interpreted, the word "decision" as something other than the decision taken under section 26 or 28 of the Ordinance but no such qualification can be attached to it. The word "decision" has not been defined by the Ordinance and it must be treated to be in the ordinary -sense. The decision is all the same a decision whether it is taken under subsection (2) or subsection (3) of section 11. Obviously this cannot be confined to subsection (2). The word "award" has been defined by section 2 (b) and if the Legislature intended that the word "decision" shall be confined to the decision other than the awards in an Industrial dispute case as observed by 'his Lordship, nothing prevented the Legislature to define it expressly as such.
14. The learned counsel for the petitioner also referred to the case of Mst. Nur Jehan Begum v.
Authorised Officer, Chittagong (PLD 1967 Dacca 166). It was a case under East Bengal Building Construction Act (II of 1953). That case is clearly distinguishable from the present case. In that case the trial had taken place before the First Class Magistrate appointed under the Criminal Procedure Code and by the Construction Act he was given additional power for the imposition of fine. So, that case is no authority for the proposition that although appeal or revision is not provided yet by implication such a right is available. The crux of the whole question is whether the case is tried by a special kind of tribunal specially brought into existence by a Statute or it is tried by a Court of Magistrate constituted under the Criminal Procedure Code. The Industrial C' Court is not a Court constituted under the Criminal Procedure Code but it is constituted under the Industrial Disputes Ordinance and despite the fact that the powers of a First Class Magistrate for the trial of the offence are conferred upon it, no revision is maintainable.
15. Even on merits the conclusion reached by the learned. Chairman of the Industrial Court is not open to interference. The learned Chairman had found that although the terms of settlement provided the re-instatement of the petitioner as-- Jobber but he waived this right and agreed to work as weaver as by accepting that post he was entitled to receive enhanced wages. It was also found by the learned Chairman that the petitioner did not raise any objection to his being engaged as weaver. No fault can be found with this conclusion. The view of the learned Chairman is also supported by the fact that although the, petitioner was stopped from work with effect from 21-8- 1965 but he did not approach the Court till 27-12-1965, that is he took no action for three months. Of course no period of limitation is prescribed for the institution of the criminal pro--ceedings but the delay which is caused cannot be ignored. No explanation has been offered by the petitioner why he delayed the filing of the complaint. The absence of expla--nation indicates that originally the petitioner agreed to, work as weaver and later after the lapse of 3 months the complaint was filed at the instigation of some other person.
16. For the foregoing reasons there is no merit in. This, revision petition which is, therefore, dismissed.