1989 PLP 447 (PLC)

Saleem Baig for Respondents. The relevant facts for the disposal of both these petitions are that Ismatullah Khan Khattak was issued a charge-sheet by his employer the Wyeth Laboratories. The NIRC had in effect directed through its order dated 15-8-1985, that it confirms its order requiring that final action be not taken against him in regard to the charge-sheet issued till the final decision of the main petition, as the respondent's order was issued due to petitioner's trade union activities.

2. The petitioner has to go to the factory daily for getting his attendance marked. He was going to the factory on 23rd September, 1985 at 7.30 a.m. when the petitioner was got hold off by the Goondas employed in the factory and was beaten lavishly. He lodged a report with the Police the same day.

3. On 1-10-1985 he was issued a charge-sheet by the respondent alleging that on the 23rd September, 1985 he came to the factory gate for marking his attendance and abused two security guards, a senior mechanic and a gell operator, which was a misconduct. He was asked to explain why he should not be proceeded against. He denied the incident and asserted that he was beaten on the other hand as the management intended to victimise him for his trade union activities. The respondent his reply not sati factory and installed an inquiry against him. a

4. The main petition states that these acts constitute unfair labour practice and the charge-sheet was liable to be quashed. It prayed that respondent be restrained from committing any act of unfair labour practice. It further prays that respondents may be directed not to take any action in regard to charge-sheet dated 1-10-1985 pending decision in the "present petition".

5. The stay application states that the contents of the main petition be kindly read as an integral part of that petition. It prays that the respondent be directed not to pass any final order in regard to the above-noted charge-sheet. It further prays that ad interim order directing the respondent not to pass any final order till the final disposal of this petition may be passed.

6. I have heard the arguments of both the sides. The petitioner's counsel seeks to assail the charge-sheet on the ground that it is a counter-blast to the FIR lodged by the petitioner on the same day i.e. 23-9-1985, while the charge-sheet as issued on 1-10-1985. The second ground of attack is that the incident referred in the charge-sheet does not constitute misconduct. According to him since the incident occurred outside the factory premises and before the working hours, therefore it did not constitute the mis-conduct. The learned counsel for the respondents assaild the main petition as well as the petition for the interim relief on the ground that no trade union activities of the respondent had been stated. Consequently the action was not being taken against the petitioner for trade union activities. Para 13 of the petition, which gives the detail of the incident does lot state whether the attack on the petitioner by GHUNDAS was carried out on chest of the management or because of his trade union activities. The petitioner omes to mark his attendance on the gate even now.

7. On legal plane he said that the Commission has no jurisdiction because a grievance notice was essential for any action under Section 25-A read with section 22(B) (3)(a). He stated that the FIR had been concocted to avoid the incident of the misconduct. He further stated that the misconduct if committed, outside the factory premises and beyond the office hours was still the misconduct. He further stated that since it has not been shown that the action against the petitioner was taken due to trade union activities remedy of the petitioner lay before the Labour Court. He cited 1978 P L C 492.

8. A perusal of the prayers in the main petition as well as in the petition for interim relief would, show that the counsel for the petitioner has sought quashment of the charge-sheet, which according to him constitutes unfair labour practice. It is prayed that the respondent may be restrained from committing act, of unfair labour practice and direct them not to take any action with respect to the charge-sheet. I am afraid this prayer could not be granted. Issuance of charge -sheet to a worker suspected of having committed a misconduct is a statutory requirement under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, it could not be done away with or quashed on even the ground that the charge has been given mala fide and has been issued on account of trade union activities of the petitioner. Even if it is so issued it would be the final order passed on the charge -sheet which would be good or bad in law as the case may be which could be, quashed or otherwise.

9. Since beyond the issuance of the charge-sheet dated 1-10-1985 and holding the inquiry the employer has done nothing so far and has committed no offence of unfair labour practice so far. As I have already stated that issuance of charge-sheet constituted no unfair labour practice the main petition is not thus maintainable. -

10. The stay application prays that the respondent be directed not to pass any final order in regard to the above-noted charge-sheet. It further prays that the ad interim order directing the respondent not to pass any final order till final disposal try this petition may be passed. This shows that the stay application is merely an application of anciliary character. It seeks to restrain the action by the respondent pending disposal of the main petition, which is dismissed. This petition is also therefore dismissed. M.Y.H./135/NIRC Petition dismissed.