1999 PLP 187 (PLC)

According to the averments made in the petition, Razi Khan was appointed as traffic assistant in the establishment of the respondents and he worked as such for more than two years satisfactorily. He was an active member and representative of the Labour Unity, Shaheen Airport Services Employees' Union and was rendering services for the protection of the lawful rights of the workers. For that reason, the respondents became hostile and inimical towards the petitioner and threatened him to sever his relations with the Union otherwise he should be, prepared to face dire consequences. It is further stated in the petition that in the month of June/July, 1995, the petitioner was arranging a meeting of the Central Body of the Union at Lahore which was nightly disliked by the respondents and eventually a show cause notice dated 3‑7‑1995 on false allegations, was served to the petitioner. He submitted a reply thereto on 6‑7‑1995. Another show‑cause notice dated 8‑7‑1995 was served to the petitioner which was replied. An inquiry was held therein. Respondent No.3 called the petitioner and told him not to arrange the meeting of the union to be held on 26‑7‑1995 and sever his relations with the union but the petitioner refused to accede his request. Thereupon, another show‑cause notice dated 12‑7‑1995 on false allegations and baseless report made by respondent No.3, was issued to him. An inquiry was held in that case also. On 22‑7‑1995, respondent No.3 called the petitioner in his office and again pressurised him to cancel the programme of the meeting of the union and inform the Central Body Officers of the union not to come to Lahore, but the petitioner refused to succumb to the desire of the respondents Then the respondents asked the petitioner to sign an excuse in writing with reference to the event mentioned in show‑cause notice dated 12‑7‑1995 so that he may drop it, which was done in good faith. The union meeting was successfully held by the petitioner on 26‑7‑1995 and certain resolutions safeguarding the rights of the workers, were adopted. To the sudden dismay of the petitioner, the respondent No.1 on 27‑7‑1995 issued dismissal/termination letter of the petitioner. The petitioner was victimised on account of his lawful trade union activities and because a news had been published in the Press against the respondent No. l on 20‑7‑1995 that he was Ahmadi. It is prayed that the impugned order of termination be set aside and the respondents be directed to reinstate the petitioner in service with all back benefits. The petition was also supported by a separate application for grant of interim relief.

2. Notice of the petition was given to the respondents for filing parawise comments. In the meantime, the impugned termination letter dated 27‑7‑1995 was suspended. The respondents filed a reply to the petition, as well as, application. Affidavits in evidence were filed by both the parties and the witnesses were cross‑examined. Arguments were addressed by both sides. Subsequently, the respondents also filed written arguments.

3. After repeating the facts as stated above, the counsel for the petitioner mainly argued that after holding an inquiry in the three show‑.cause notices, increment of the petitioner was stopped by the respondents through order dated 25‑7‑1995. The meeting of the General Body of the union was held on 26‑7‑1995. A news in that regard appeared in the Press on 27‑7‑1995. The respondents on account of the lawful trade union activities of the petitioner dismissed/terminated his services on the same date without issuing any second show‑cause notice or supplying a copy of the Inquiry Report and thereby the respondents committed unfair labour practice. The learned counsel relied on 1980 LLC 583, PLD 1979 Karachi 279, 1973 SCMR 455 and 1966 LLC

613. The learned counsel further urged that during cross‑examination, no question was put to the petitioner with regard to his trade union activities and, therefore, the fact that the action was taken against the petitioner was as a result of unfair labour practice, stood established.

4. The learned counsel for the respondents on the other hand, argued that the respondent was an establishment of Shaheen Foundation of PAF which is a charitable Institution and the provisions of Industrial Relations Ordinance, 1969 were not applicable to its employees. In this regard, reliance was placed on PLJ 1978 Tr.C. (Labour) 31 and 1990 PLC

218. He further urged that the registration of the Union was suspended and the petitioner failed to produce his membership certificate in evidence. It was further stated that the increment of the petitioner was stopped in the first two cases and he was terminated after inquiry in the third show‑cause notice. The petitioner sought written apology and as such no inquiry was necessary.

5. Mr. Noor Muhammad Butt, Advocate for respondent No.2 submitted that the plea of unfair labour practice taken by the petitioner was an afterthought and it was not taken in the petition.

6. The counsel for the petitioner however, repelled the arguments of the respondents' counsel by adding that the registration of the union was challenged by the employer in February, 1996, whereas the impugned action was taken in 1995 when the union was functioning. The petitioner was victimised on account of his lawful trade union activities. He further mentioned that the respondent establishment was registered with the Registrar, Cooperative Societies under the Societies Act and, therefore, provisions of section 1(3)(a) of the Industrial Relations Ordinance, 1969 were not applicable.

7. I have considered the arguments advanced by the learned counsel appearing on behalf of the parties and have perused the record carefully. It is an admitted position that the General Body Meeting of the union was held at Lahore and the petitioner had made all arrangements there for. The respondents have not denial that the union meeting was held at Lahore. It is also a matter of fact that in quick succession, three show‑cause notices were issued to the petitioner. In two cases his increment was stopped but on the third show‑cause notice his services were terminated on 27‑7‑1995 after the meeting of the union was held on 26‑7‑1995, of course, without supplying him a copy of the inquiry report or providing an opportunity of personal hearing. Such an action could not be held to be legal and reference in this regard can be made to 1993 SCMR 455 and PLD 1979 Karachi 257.

8. It is further noticed that during cross‑examination, no suggestion was made to the petitioner that he was not victimised on account of his lawful trade union activities and for holding General Body Meeting of the Union at Lahore and that he had no role to play in that meeting. Thus, the allegations of unfair labour practice go unrebutted. The witness of the respondent although tendered affidavit in evidence but it is of no avail because during cross‑examination he stated that he had been working as General Manager for the last about four/five months. Hence, the witness had no personal knowledge with regard to the facts of the case. The witness during cross‑examination, stated that there was nothing on record to show whether personal hearing was given to the petitioner and that he could not say whether the petitioner was dismissed on account of holding the General Body Meeting of the trade union at the Airport on 26‑7‑1995.

9. A perusal of show‑cause notice dated 12‑7‑1995 (Exh.R‑5) shows that the petitioner was issued show‑cause notice for absence from duty from 13‑30 hours to 14‑30 hours on I 1‑7‑1995 without obtaining permission from his Shift Incharge or D:S.M. and later when asked by D.S.M. about reasons for absence he displayed rude and insolent behaviour and threatened him with dire consequences. The petitioner was subsequently dismissed on the basis of the said show‑cause notice. On 25‑7‑1995 the increment of the petitioner was stopped in the first two show‑cause notices and through order dated 27‑7‑1995, the services of the petitioner were terminated on the basis of show‑cause notice dated 12‑7‑1995. The action prima facie appears to be based on victimisation on account of trade union activities of the petitioner which was an act of unfair labour practice on the part of the respondents. Moreover, absence for a short period would not amount to misconduct and the imposition of extreme penalty was not at all justified. The order of termination of the petitioner is, therefore, not sustainable in the eyes of law and is hereby set aside with the direction to the respondents to reinstate the petitioner in service from the date of his dismissal with full back benefits. It is noted that in view of the interim order, the respondents have already put the petitioner on duty. H.B.T./293/N.I.R.C. Petition allowed.