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Petitioner: JAVED AKHTAR AND 11 OTHERS VS Respondent: THB DAILY JANG, LAHORE
Court Name: National Industrial Relations Commission Judge(s): Mehmood Akhtar Title: JAVED AKHTAR AND 11 OTHERS vs THB DAILY JANG, LAHORE Case No.: Case No, 12 (32) of 1982 Date of Judgment:1983-05-07 Reported As: 1984 PLC 259 Result: Reference replied accordingly.
Judgment DECISION ' The Full Bench of the National Industrial Relations Commission was pleased to refer the following question of fact to this Bench for recording its findings :- "Whether appellants Nos, 1 & 4 were coerced into signing the agreement, dated 20th April, 1982 and whether the remaining appellants were so coerced on subsequent dates." ' For this purpose evidence of four petitioners' witnesses, two defence witnesses and one Court witness were recorded. Besides record of National Industrial Relations Commission and Implementation Tribunal for newspapers Employees was produced and arguments of the counsel were heard. 2. The counsel for the appellant urged that the term 'coercion' had not been defined in the Industrial Relations Ordinance, 1969, although it has been used in section 15 (I) (i) and section 16 (1) (d) of the Industrial Relations Ordinance, 1969. Though term 'coercion' had been defined under section 15 of the Contract Act, yet the Industrial Relations Ordinance, 1969 being a beneficiary law it could not be equated with property laws in terms of the dictum laid down by the Supreme Court in Marker Employees' Union v. Marker Al.Kaloids Limited and others . He stated that the definition of 'coercion' in Contract Act could not be read into the Industrial Relations Ordinance, 1969, Even otherwise, he submitted words in one statute were not be interpreted with regards to the same word occurring in another statute. He said that the words in a statute were to be interpreted in the context in which they occurred. In his support he relied on the dictum of the Supreme Court in Government of West Pakistan v. Wali Muhammad Habib and another , Commissioner Income, Tax Rawalpindi v. Noon Sugar Mills . He stated that there were a chain of authorities to hold that the words not defined in a statute were to be given their plane and ordinary dictionary meanings. For1 2 3
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his support be relied on Shafi Corporation Ltd. Karachi v. Government of Pakistan and Muhammad Aslam v. Umer Bibi . He said that there was no ambiguity about the term 'coercion, and where there was no ambiguity, the words were to be interpreted according to their ordinary meanings. He cited Muhammad lqbal Khan Niazi v. Vice-Chancellor University of Punjab , Ghulam Sarwar v. Pakistan and Pakistan Textile Mills Owners Association v. Administrator of Karachi for support. ' The learned counsel for respondents stated that section 15 of the Contract Act defined word 'coercion' as follow :- "Coercion is the committing or threatening to commit any act forbidden by Pakistan Penal Code or the unlawful detaining or threat- ' ending to detain any property to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement." ' Section 19 of the Contract Act states that when consent to an agreement is caused by coercion the agreement shall be voidable at the option of the party entering into it. He states that the appellants' case in appeal before the Full Bench of National Industrial Relations Commission was that since the agreement, dated 20th April, 1982 had been got executed under coercion from appellants Nos, 1 and 4 besides other appellants, the same was voidable at the option of the appellants. This was a principle of the Contract Act. So therefore, the provisions of the Contract Act will have to be necessarily read into the Industrial Relations Ordinance, 1969. He stated that the Industrial Relations Ordinance, 1969 did not lay down that the agreement arrived at, under coercion, would be voidable. It was only the Contract Act which laid down that provision. Since the appellants had invoked that provision themselves, therefore, they were bound by the implications of the definition of coercion as given in the Contract Act. He said that both sections 15 (f) and 16 (1) (d) of the Industrial Relations Ordinance, 1969 used word 'coercion alongwith words 'pressure and threat' etc. This referred to exercise of physical force in the objective sense, as has been held by the National Industrial Relations Commission itself in a case reported as Sher Muhammad v. Adamjee Papers and Board Mills, Nowshera . Precisely speaking that judgment related to pressure, which is lesser degree of coercion. Coercion in itself meant show of physical force, to subject a worker or employer, as the case may be, to physical restraint. 4. I have seen the case reported as Marker Employees Union v. Marker Alkaloids Limited. It would be too categorical a statement to say that the Supreme Court had observed that the Labour Laws were beneficial laws and they could not be equated with the property laws. The case before the Supreme Court was about the provision of Ordinance, 1969. In that context the Supreme Court had observed as follows : "The interpretation placed by the learned Judge on section 26 of the Ordinance has not commended to us. The period of 10 days prescribed in subsection (2) are intended to expedite settlement of industrial dispute. The Ordinance does not contemplate that if the employer and collective bargaining agent of the workers enter into negotiations beyond the period of 10 days or the negotiations continue beyond the entire process under section 26 shall exhaust itself. The same is true if notice of strike is given beyond the period of 7 days after the negotiations have failed. ' The learned Judge has held that the word 'may' in section 26 of the Ordinance is used in compulsive and not permissive sense. We are unable to agree with him. The provision of a notice in a beneficial statute such as the Ordinance should not be equated with similar provisions in laws dealing with rights in property. For example, if notice terminating a tenancy is not given by the landlord to a tenant in time the tenant acquires the right to renewal of the tenancy. There are similar provisions in the Electricity Act. If the notice terminating the licence is not given to the licensee in time,' the licence is renewed for a further period of 20 years. The Ordinance with which4 5 6 7 8 9
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we are dealing is however, designed to promote harmony between the workers and the employer and does not deal with property rights." 5. Consequently I am constrained to observe that the dictum of Supreme Court in Marker Employees Union v. Marker Alkaloids Limited was not general application but was limited to the notice under section 26 of the Industrial Relations Ordinance, 1969, and could not, therefore, be construed in such broad context. However, I do find some force in the submissions of the counsel for the appellants that it would be dangerous to import the definition of a word occurring in one statute into another because the context and the requirements of every statute are different from the other. It was observed in Government of West Pakistan v. Wali Muhammad Habib and others that the meanings attached to terms and phrases used in one statute as aid in support of interpretation of a different statute meant for different purposes and dealing with a wholly different subject-matter was always unsafe. Consequently recourse was advised to ordinary dictionary meanings in interpretation a statute. It is true that as Lord Coleridge stated "dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliament, but it is a well-known rule of Courts of law that words should be taken to be used in their ordinary sense and we are, therefore, sent for instruction to these books." (Maxwell on the Interpretation of Statutes, 12th Edition, page 55). 6. As for the definition of coercion under section 15 of the Contract Act, it may be stated that the Contract Act itself was not intended to be C exhaustive. The preamble which is the object of the Act, stated it to be an Act ; "to define and amend certain parts of the law relating to contracts." The definition under section 15 of the Contract Act is introduced merely for the purposes of Chapter II of the Contract Act of which it forms part, which deals with voidable contracts. This is evident from the wording of section 14 which refers to 'coercion' as defined in section 15 of the Contract Act. Thus, the definition of word 'coercion' in section 15 of the Contract Act which was introduced merely for the limited purpose of Chapter II of the Contract Act-which in itself is an Act to define and amend only certain parts of the law relating to contracts, could not be of general application. The Privy Council had an occasion to consider the import of word 'coercion' in Seth Kannayalal v. The National Bank of India . Delivering the judgment Lord Mouthan had stated that- "The word 'coercion' must, therefore, be used in general and ordinary sense as an English word and its meaning is not controlled by the definition in section 15. That definition of 'coercion' is expressly inserted for the special object of applying to section 14 i,e, to define what is the criterion, whether the agreement was made by means of consent extorted by coercion and does not control the interpretation of coercion when the word is used in other surroundings." (5) As for the dictionary meaning of word 'coercion' the Chambers' Tewentieth Century Dictionary (Revised Edition) page 205 states as follows : `Coercion' restraint ; Government by force ;" ' The New Webster Encyclopaedic Dictionary, of the English Language, page 129 states as follows : "Coercion, koershon, n. The act of coercing ; restraint ; compulsion ; constraint.-" ' Mozley Whitley's Law Dictionary (Ninth Edition) by John B. Saunders Butterworth states at page 63 as under :- "Coercion. The threat of taking away from another something that he possesses, or of preventing him from obtaining an advantage he would otherwise have obtained by influence or duress. See Ellis v. Barker [(1878), 40 L J Ch. 603] "Coercion involves something in the nature of negation of choice" Hodges v. Webb, [(1920) 2 Ch. 70]. Words and Phrases legally Defined. Volume I : A. C. At page 272 states as follows : "Coercion" is word of ambiguous import. In one sense anyone is coerced who under pressure does that which he would prefer not to do : but a reluctant debtor who pays under stress of proceedings10 11
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is not coerced within the legal meaning of the word...Coercion' involves something in the nature of the negation of choice...An employer cannot properly be said to be coerced if, having two alternative courses presented to him, he follows that course which he considers conductive to his own interest. Hodges v. Well, [(1920) 2 Ch. 72] per Peterson, J. At pp. 85-87". Black's Law Dictionary (Revised Fourth Edition) page 342 states as follows : "Coercion. Compulsion constraint : compelling by force or arms. Fluharty v. Fluhorty Del Super, 8 W. W. Harr. 487, 193 A. 838, 840 ; Santer v. Santer, 115 Pa. Super, 7, 174 A. 651, 652. It may be actual, direct, or positive, as where physical force is used to compel act against one's will, or implied, legal or constructive as where one party is constrained by subjugation to other to do what his free will would refuse, Metro-Civ App. 56 S. W. 2d. 489, Fluharty, 8 W. W. Harr. 387, 193 A 838, 840. It may be actual or threatened exercise of power possessed, or supposedly possessed. In re, New York Title and Mortgage Co. 271 N. Y. S. 433, 150 Miscellaneous 827 ; Weir v. Mc Grath, D. C. Ohio, 52 F 2d 201, 203. As used in testamentary law, any pressure by which testor's action is restrained against his free will in the execution of his testament, Max Ars Mach. Co. v. International Ass of Machinists. Bridgeport Lodge, No, 30, 92, 500, 181 P. 200, 203, 5 A. L. R. 817. Duress and coercion are not synonymous though their meanings often shade into one another. Mekenzie Hogus Co. v. Carbide and Carbon Chemicals Corporation C. C. A. Minn. 73 F 2d, 78, 85." Ballentine's Law Dictionary, Third Edition, page 213 states as follows : Coercion. Compulsion by the application of physical or mental force or persuasion. A word descriptive the result of an act rather than a designation of an act. N. L. R. B. v. Grower-Shipper Vegetable Asso. [(C. A. 9) 122 F2d 368]. A form of abuse of process (I Am. J2d P & 9). The compulsion, presumed by some, especially older, authorities, to have been exercised by a husband upon the wife for the commission of a crime which was committed by her in his presence. (21 Am J2d Crim L. And 102) As a defence to an action upon a written instrument-importunity which destroys the free agency of person, subjected and substitutes the will of another in place of his own, Gomillion v. Forsythe, (218 S. C. 211, 62 SE2d 297, A. L. R. 2d 169) ; As an unfair labour practice physical or mental persuasion by affirmative conduct, (31 Am J Revised Lab. And 226); As an excuse for the commission of an act, otherwise criminal a present, imminent, and impending physical or mental force of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. State sr St. Clair [(Mo) 262 SW2d 25, 40 Alr 2d 903]." Thus, the meanings of the words coercion as noun and coerce as verb commonly understood are the act of coercing, restraint, compulsion or constraint or the act of compelling by physical or mental force or arms ;E to repress, to compel, to compliance. A person is coerced who under pressure does that which he would prefer not to do, a negation of choice and free will etc. 8. Sections 15 (1) (f) and 16 (d) of the Industrial Relations Ordinance 1969 where word 'coercion' occurs run as follows : "15 "Unfair labour practices on the part of employers. (1) No employer or trade union of employers and no person acting on behalf of either shall (f) compel or attempt to compel any officer of the collective bargaining agent to arrive at a settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water power and telephone facilities and such other methods. "16 "Unfair Labour practice on the part of workmen. (1) No workmen or other person or trade union of workmen shall- (d) compel or attempt to compel the employer to accept any demand by using intimidation, coercion, pressure, threat, confinement, or ouster from a place, dispossession, assualt physical injury, disconnection of telephone, water or power facilities or such other methods."
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9. Here one could see the words of the same kind keeping their own company.. The use of word 'coercion' alongwith words intimidation pressure and threat in both these ' clahses, particularly words "pressur and threat" is very significant, and provides an example of Noscitur a Sociis. Coercion, therefore, means not only the constraint or compulsion or pressure etc. By application of physical force but also mental force with the intention to occasion negation of free will and choice, through affirmative action. Thus, threat to unlawfully cause injury or actually causing an injury unlawfully in respect of employment including removal, discharge, dismissal or transfer of a workman in, order that he executes a settlement would also amount to coercion and unfair labour practice under the 1. R. O. 1969. 10. In this context it was urged that the evidence of P. W. 1, P. W. 2 and P. W. 3 corroborated with each other in material detail to establish that after the stay order issued by Member-I N. I. R. C. On 27th March, 1982. (a) The petitioners were made to sit in a separate room in the establishment with effect from 28th March, 1982. (b) A new attendance register was introduced on which a line was drawn against column of attendance meant for them for the period from 9th to 27th March, 1982. The impression was given that the petitioners were absent for those days. (c)The petitioners were not given any work or assigned any duty. (d) The petitioners were denied wages from 9th March, 1982. (e)The petitioners were asked mala fide to attend office at 6-00 a.m. Which practice is not resorted to in any other newspapers. (f) The petitioners were not allowed to go to kitabat section in the same establishment. (g)The special pay of Rashid Qamar Head Katab P. W. 1 was stopped w. e. f, 1st April, 1982. (h) Abdul Rashid Qamar, Muhammad Jameel Qaiser and the petitioners including Javed Akhtar and Ghulam Yasin were either issued show-cause notices or charge-sheets or were threatened of being issued the show-cause notice or charge-sheets for conducting strike, instigating strike and riotous behaviour etc. Even though the statutory period of one month during which such action could be taken had expired. (1) Rashid Qamar and Jamil Qaisar were suspended from 15th April, 1982 to 18th April, 1982 the period immediately preceding the signing of agreement Exh. C/1 which was signed on 20th April, 1982. U) The attendance marked by Jamil Qaiser was converted into absence. (k) Ch. Rahmat Ali threatened that D. W. 2 being as ex-Police Officer, he shall implicate them (petitioners) in false cases under section 182, P. P. C. 11. On this basis the counsel for the petitioners urged that each of these acts amounted to application of pressure and force amounting to coercion. He stated that the giving of the charge- sheets after the expiry of a period of one month to these 12 petitioners (h) was an exercise enucleating a state of mental terror and fear among the petitioners amounting to coercion for the purpose of executing a settlement. For after a period of one month, the offence of illegal strike, even if he admitted it to be the case for the sake of argument, had lost its culpability. He stated that after the order of the Court the action of the respondent in not assigning the duties to the petitioners, (c) seating them in a separate room (a), denying them free movement inside the establishment and not allowing them to go to the kitabat section (f), requiring them to observe such odd hours as were not in practice in any newspaper establishment located in the area (e), were the unfair labour practices calculated to coerce the petitioners with a view to making them execute the agreement Exh. C/1. Similarly introduction of a new attendance register in which a dine was drawn against the names of the petitioners giving them impression of being absent for those
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days (b), and denying them wages for that period (d), were also blatent exercises in coercion. Similarly stoppage of special pay of Head Katib Abdul Rashid Qamar and suspension of Jameel Qaiser, Vice-President of the Union as well as that of Rashid Qamar had their own demonstration impact. He said that the management of Daily Jang was clearly the beneficiary of this agreement. By this agreement the petitioners lost their permanent status and future of employment in the establishment. Therefore, it could not be said that this was an agreement under free will. 12. He said that giving appointment letters to Muhammad Rafiq and Ehsanullah Jora workers who were also locked out with the rest of the petitioners was another discriminatory tactic against the petitioners and the petitioners were discriminated because they were members of the trade union. Even if it is admitted for the sake of argument that the petitioners had conducted strike, then the guilt of the petitioners as well as Muhammad Rafiq and Ehsanullah Jora was the same. They were, however, treated differently because they forsook the union. This was a. Tactic to demonstrate to the workers that those who exercised their free will were in the process of being punished and those who did not were rewarded. 13. Apart from that there was harassment of workers through frequent visits of police in which officers of the union were subjected to the process of police investigation. Then there was almost open collusion between the respondents and the Katibs engaged by them who threatened Javed Akhtar etc. Petitioners with breaking his legs. Thus, an atmosphere of oppression and terror persisted in which the free will and choice of petitioners has been negated and could do nothing else but sign the agreement. 14. About the quality of the evidence he stated that the evidence of D. W. 1 amounts to hearsay because he is neither a party nor he went to the Labour Department. The evidence of D. W. 1 is contradicted by D. W. 2 in respect of assignment of duties. D. W. 1 stated that when the 12 petitioners came back with stay order they were assigned work. Later on be said that he used to assign work and he used to assign` duties. About Abdul Rashid Qamar he stated that actually he had been giving work to him. D. W. 2 stated on the other hand that he and not D. W. 1 used to assign work to these petitioner Katibs. About Rashid Qama.r he said that he used to give matter for calligraphy to him. There was contradiction also in the statements relating to seating of petitioners after they came with stay order, dated 27th March, 1982. D. W. 2 stated that the petitioners were allowed to sit in the same usual place reserved for Katibs in the Hall where the rest of them used to sit. While D. W. 1 stated that only 3 of them were accommodated in the calligraphy section and the rest in magazine section. In reply to a Court question that he was deposing in that manner because he was to lose his own job if the petitioners succeeded, D. W. 1 denied the suggestion, while D. W. 2 was of the opinion that if the petitioners were issued permanent appointment letters D. W. 1 and others appointed on 10th March, 1982 would have been retrenched. This makes D. W. 1 an interested witness. 15. The counsel for the petitioners further stated that it was incorrect to assert that the petitioners had conducted any strike. The plea of illegal strike by the petitioners was merely a counterblast to the submissions of petitioners that the respondents had conducted an illegal lock-out on 9th March, 1982. This is merely an afterthought to cloak their illegal action for neither National Industrial Relations Commission nor Labour Department nor Police nor any other authority had been informed of any illegal strike having been conducted by petitioners. 16. A perusal of Exh. P. W. 1/17 gives the history of the dispute from the workers' point of view. It states that the union was formed on 5th March, 1982 and the workers demanded that they should be issued permanent appointment letters at least in the computer section on 6th March, 1982. The management refused and conducted lock-out in computer section. Therefore, all the work had to be done by the calligraphists who numbered only 40 while at least 100 were needed. Of these 40 only 19 bad been issued permanent appointment letters while 21 calligraphists working since 1st
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October, 1981 against permanent vacancies had not been issued appointment letters. They demanded extra staff to be provided. On that Mir Shakeel-ur-Rehman evicted them from their place of work. On the intervention of Nisar Usmani, Mir Shakeelur Rehman allowed the workers to go back to their duties and assured to lift the lock out. He also promised that he was issuing permanent appointment letters to all of them, but while in the office he went back on his word. This shows that the real dispute was about issuance of permanent appointment letters. 17. Apart from that Exh. P. W. 2/3 being the complaint filed by Akhtar Hayat President of the Union (which inter alia lead to the stay order by N. I. R. C. On 27th March, 1982 under which petitioners derived benefits and made claims) shows that the dispute was about issuance of permanent appointment letters to workers. Same would appear from Exh. P. W. 1/3, Exh. P. W. 1/16, Exh. P. W. 2/5 and Exh. P. W. 4/2 (demand No, 4). Further, Javed Akhtar P. W. 3 makes it very clear in his statement ; he says "on the 9th of March, 1982 the Union had demanded from Ch. Rahmat Ali, Mir Shakeelur Rehman and Abdul Rab Sajid that the 12 petitioners may be given appointment letters. On this Ch. Rehmat Ali said that we will not be given any appointment letter. The police was called and we were forced to get down from the place of our work-". In other words the petitioners demanded to be issued appointment letters when already the computer machine operators were not working. At that time it is asserted that the respondents conducted lock-out. This on the very face of it seems to be false because it is highly improbable that an employer whose establishment is already partially closed should conduct a lock-out without making a demand on the workers. On the other hand it is very much probable that seeing the employer under pressure the petitioners also pressed for their demand of being issued appointment letters, at that opportune moment and…
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