1994 PLP 131 (PLC)
ALLIED BANK OF PAKISTAN WORKERS' UNION, FAISALABAD ZONE (C.B.A.) and another Versus ZONAL CHIEF, ALLIED BANK OF PAKISTAN LIMITED, FAISALABAD ZONAL OFFICE and another
| Citation | 1994 PLP 131 (PLC) |
| Forum / Court | National Industrial Relations Commission |
| Bench Members | S. Ejaz‑ul‑Hassan, Senior Member |
| Parties | ALLIED BANK OF PAKISTAN WORKERS' UNION, FAISALABAD ZONE (C.B.A.) and another Versus ZONAL CHIEF, ALLIED BANK OF PAKISTAN LIMITED, FAISALABAD ZONAL OFFICE and another |
Q1: What are the key laws and sections cited in 1994 PLP 131 (PLC)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1994 PLP 131 (PLC)?
The case was heard and decided by the National Industrial Relations Commission bench comprising: S. Ejaz‑ul‑Hassan, Senior Member.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1994 PLP 131 (PLC) (ALLIED BANK OF PAKISTAN WORKERS' UNION, FAISALABAD ZONE (C.B.A.) and another Versus ZONAL CHIEF, ALLIED BANK OF PAKISTAN LIMITED, FAISALABAD ZONAL OFFICE and another). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Ch. Ghulam Qadir for Petitioners.
- Sh. Ata‑ur‑Rehman and Ch. Riaz Ahmad Ghuman for Respondents.
Headnotes / Summary
(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 15, 22‑A & 25‑A‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, Regln. 32‑‑‑Unfair labour practice on the part of employer‑‑‑Initiation of disciplinary proceedings was a routine matter of Industrial and Commercial Establishments and it would not lead to any presumption of unfair labour practice on the part of employer under S.15‑‑‑Employer had a right to hold an enquiry against its employees suspected guilty of misconduct‑‑‑Such right of employer could not be curbed or taken away merely because employee happened to be an office‑bearer of union‑‑‑Issuance of charge‑sheet to a defaulting worker, was prerogative of employer and Industrial Relations Commission, was not vested with any power to stay disciplinary proceedings against an employee even if, such employee happened to be an important and prominent office‑bearer of union because if no action was taken by employer pursuant to complaints of serious nature, such activities would continue unchecked and public would lose confidence in Financial Institutions like Banks‑‑‑Service of show‑cause notice on an employee on ground of misconduct, could not be treated as an act of unfair labour practice as taking part in union activities would not give a licence to employee to commit misconduct‑‑‑If any action was taken against employee, he could challenge same by filing grievance petition under S.25‑A in appropriate Court which was an adequate and self‑sufficient remedy‑‑‑Basic matter against which employee had approached Commission was initiation of disciplinary proceedings against employee‑‑‑Whether charges levelled against employee were correct or not, was a matter to be inquired into and decided under relevant law by employer itself‑‑‑If charges were proved against employee, he could hardly assail same as constituting unfair labour practice on the part of employer. Arif Ali v. Gulshan Carpet Industries, Lahore 1994 PLC 35 ref. (b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑S. 15‑‑‑Transfer of employee as unfair labour practice on the part c1; employer‑‑‑Transfer of employee or even office‑bearer of any trade union, had been considered to be an exercise of unfettered right of employer and it would not lead to any presumption of unfair labour practice on part of employer‑‑ Employer had inherent right to transfer its employee for smooth running of its business and it could not be challenged‑‑‑Transfer was discretion of employer and unless such an order was alleged to be mala fide, it could not be successfully challenged‑‑‑Courts of law are slow in interfering in transfer matters unless such transfer, on face of it appears to be mala fide and tainted with extraneous consideration. 1994 PLC 31 ref. (c) Industrial dispute‑‑‑ ‑‑‑‑Injunction‑‑‑Grant of‑‑‑Principles‑‑‑Principles of law relating to grant or refusal of temporary injunction were, firstly, whether petitioner had a prima facie good case, secondly, whether balance of convenience lay in favour of grant of injunction and thirdly, whether petitioner would suffer irreparable loss, if injunction was refused to him‑‑‑Issuance of injunction though was discretionary with Courts, yet principles governing exercise of such discretion were fully settled‑‑‑Loss which was measurable in terms of money, could not be called irreparable loss. PLD 1973 Lah. 120 and PLD 1981 Lah. 752 ref. (d) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 15 & 22‑A‑‑‑Jurisdiction of National Industrial Relations Commission‑‑ National Industrial Relations Commission, had jurisdiction to interfere only if a case fell within ambit of S. 15‑‑‑Said provision of law had provided redress of grievances arising out of victimisation for trade union activities only and no other victimisation, even if proved, was actionable by Commission in exercise of jurisdiction created by Ss. 22‑A(8)(g). Iftikhar Hussain's case PLD 1988 SC 53 ; 1991 PLC 876; 1988 PLC 923;1988 PLC 419 and 1994 PLC 31 ref. (e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑S. 15‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15‑‑‑Misconduct‑‑‑Delay in issuance of charge‑sheet‑‑‑Effect‑‑‑Delay, though had occurred in issuance of charge‑sheet to employee for his alleged misconduct, but that delay had not prejudiced cause of employee ‑‑‑Factum of delay, even otherwise, in issuance of charge- sheet would not necessarily lead to presumption of unfair labour practice on the part of employer. (f) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 15, 22‑A, 22‑F & 25‑A‑‑‑National Industrial Relations Commission (Procedure and Functions) Regulations, 1973, RegIn. 32‑‑‑Unfair labour practice on the part of employer‑‑‑Employer against whom application for prevention of alleged unfair labour practice was filed by employee, had contended that since employee had not served a grievance notice as required under S. 25‑A, petition moved by employee before Commission under S. 22 A(g)(g) was not maintainable‑‑‑Commission while dealing with case for prevention of unfair labour practice, would follow procedure laid down under Regulation 32(2) and not under S. 25‑A of the Ordinance and under Regulation no precondition of serving grievance notice as required under S. 25 A existed‑‑‑While invoking provisions of S. 22‑A(8)(g) of the Ordinance, employee was not required to serve a grievance notice on employer under S. 25‑A. (g) Industrial Relations Ordinance (XXIII of 1969)‑‑‑ ‑‑‑‑Ss. 15 & 22‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of i968), S.O. 15‑‑‑Unfair labour practice on the part of employer‑‑‑Proof‑‑‑Employee was charge‑sheeted for committing fraud and misappropriation not with a view to victimise him for trade union activities as alleged by employee‑‑‑Proceedings against employee could not be circumvented prematurely by pleading alleged victimisation‑‑‑When an employer was performing an act which he was exercising as a right to him under law he could not be said to have committed an unfair labour practice‑‑‑ Initiation of disciplinary action and consequential proceedings against employee was a right guaranteed to employer. 1989 PLC 447; 1988 PLC 884; Sui Gas Transmission Company Limited v. The Islamic Republic of Pakistan and 2 others PLD 1959 SC (Pak.) 66 and Pakistan Petroleum Workers Federation, Karachi v. Burmah‑Shell Oil Storage and Distributing Company and others PLD 1961 SC 479 ref.
Judgment & Decree
So far as the question, regarding jurisdiction of the Commission is concerned, I find that according to law laid down by the Hon'ble Supreme Court of Pakistan in the case of Iftikhar Hussain (PLD 1988 SC 53, para 14), this Commission has jurisdiction to interfere only if a case falls within the ambit of section 15 of the IRO 1969. This provisions of law provides redress of grievances arising out of victimisation for trade union activities only. No other victimisation, even if proved, is actionable by this Commission in exercise of jurisdiction created by section 22‑A (8)(g) of the I.R.O., 1969. 1991 PLC 876, 1988 PLC 923,1988 PLC 419 and 1994 PLC
31. The incident of misappropriation of Rs.65,000 and commission of fraud by petitioner No. 2 is stated to have occurred in the months of October/November, 1989 during the days of posting of petitioner No. 2 in Gole Karyana Branch of the Bank. The charge‑sheet has been served on 26‑8‑1992. The action by the management is shown to have been taken after considerable delay and that too contrary to the provisions of the West Pakistan Industrial and Commercial (Standing Order) Ordinance, 1968 in order to punish petitioner No. 2 for his union activities. It is true that some delay has occurred in the issuance of the charge‑sheet but it is equally true that the delay does not seem to have prejudiced the petitioners cause. The factum of delay alone does not necessarily lead to the presumption of unfair labour practice. The respondents have raised a legal objection that since the petitioner has not served a grievance notice as required under section 25‑A of the I.R.O., 1969, the petition moved under section 22‑A(8)(g) of the IRO is not maintainable. In my opinion, this contention has no force. Section 22‑A(8)(g) of the I.R.O.,1969 is reproduced below:‑ 22‑A. National Industrial Relations Commission‑‑ (2) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (3) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (4) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (5) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (6) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (7) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (8) The following shall be the functions of the Commission, namely‑‑ (a) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (b) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (c) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (d) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (e) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (g) to deal with cases of unfair labour practices speed in sections 15 and 16 on the part of employers, workmen trade unions of either of ‑them or persons acting on behalf of any of them. Whether committed individually or collectively, in the manner laid down under section 25‑A or section 34 or in such other way as may be prescribed, and to take in such manner as may be prescribed by regulations under section.22‑F, measures calculated to prevent an employer or workmen from committing an unfair labour practice; (h) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (i)‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ A perusal of the said section ' would reveal that it provides two remedies. First remedy is provided in a case when an unfair labour practice has already been committed. For instance if an employer in order to victimise a member or an office‑bearer of a union removes him4'rom service due to his trade union activities. Such an act of unfair labour. practice having occurred, the commission shall decide the case in the manner as laid down under section 25‑A of the IRO 1969. In the present case, the petitioner has not yet been removed from service and has prayed that the employer be prevented from committing an act of unfair labour practice and be restrained from dismissing him from service. This falls in the latter part of the said section viz. "and, to take, in such manner as may be prescribed by regulations under section 22‑F, measures calculated to prevent an employer or workman from committing an unfair labour practice". The Commission exercise of powers given under section 22‑F of the IRO 1969 has framed NIRC (P&F) Regulations, 1973. Sub‑Regulation (2) of Regulation 32(2) reads as under:‑‑ "32.‑‑‑(2) Where a case of unfair labour practice is likely to occur, the Commission may take the following measures, namely:‑‑ (a) it may summon all or any of the persons connected with the case which is likely to occur, hereafter in this chapter referred to as the connected persons, hear them and hold such enquiry as it deems fit. (b) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (c) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (d) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (e) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ While dealing as case for the prevention of an unfair labour practice; the Commission shall follow the procedure laid down under Regulation 32(2) and not under section 25‑A of the IRO 1969. In this case the procedure has been complied with. The connected persons have been summoned and heard. There is no precondition of serving a grievance notice as required under section 25‑A of the IRO 1969. Even otherwise the first part of section 22‑A(8)(g) of the IRO 1969 laid down that the Commission shall deal the case in the manner laid down under section 25‑A of IRO or section
34. The Commission has therefore to conform with the manner of deciding the case which is laid down under subsection (4) of the IRO 1969. The relevant part of subsection (4) of section 25‑A of the IRO, reads:‑‑ "(4) if the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3) or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his (Collective Bargaining Agent) or the 2 (Labour Court), or as the case may be, the 1 (Collective Bargaining Agent) may take matter to the 2 (Labour Court) and where the matter is taken to the 2 (Labour Court) it shall give 3 (a decision) within 4 (seven) days from the date of the matter being brought before it as if such matter were in an industrial dispute." The word `in the manner' is used in relations to procedure of trial of cases and not for the petitioner to serve a grievance notice before he files a petition. I therefore, hold that while invoking the provisions of section 22‑A(8)(g) of the IRO 1969 the workers are. not required to serve a grievance notice on the employer under section 25‑A of the IRO 1969. In this particular case, the charge‑sheet shows that the petitioner No. 2 is not being punished for his trade union activities but he has been served with charge‑sheet for committing fraud and misappropriation. When an employer is performing an act which he is exercising as a right given to him under law, he cannot be said to have committed an unfair labour practice. Initiation of disciplinary action, as stated above, and consequential proceedings is a right guaranteed of the employer. In this case petitioner No. 2 has been charge‑sheeted in exercise of powers given to the employer under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not with a view to victimise him for trade union activities. The proceedings cannot be circumvented prematurely by pleading victimisation. The petition appears to have been filed to thwart the departmental action against the petitioner with an attempt to pre‑empt the right of the management to take legal action against employees, said to have committed misconduct, 1989 PLC
447. A chain of authorities were‑relied on from the petitioner side to show that the Inquiry Officer had a biased mind against petitioner No. 2 and that the inquiry proceedings had not been properly conducted which has resulted in grave miscarriage of justice. The objection of the learned counsel cannot be attended to. These submissions are foreign to this Commission in view of the following observations made in 1988 PLC 884:‑‑ "In departmental disciplinary proceedings it is not open to this forum to reopen and repeat the inquiry or to substitute itself for the Inquiry Officer. The ' Supreme Court in Sui Gas Transmission Company Limited v. The Islamic Republic of Pakistan and two others PLD 1959 SC (Pak) 66, held "that it was not the province of the Tribunal to go into the matters of the allegations but that its jurisdiction was only to see if there was a fair inquiry and the employee was given an opportunity to explain the charge." "Similarly, in Pakistan Petroleum Workers Federation Karachi v. Burmah Shell Oil Storage and Distributing Company and others PLD 1961 SC 479 (513) the principle followed by the Tribunal of not sitting in appeal over the proceedings in. the inquiry was approved." In the result and for the foregoing reasons, the petition fails which is hereby dismissed. Stay recalled. H.B.T./201/N.I.R.C. Petition dismissed.