2003 PLP 244 (PLC)

"I did not submit any application for stick-leave of the petitioner to the Management. Even the petitioner had not directed me to tile sick-leave application on his behalf".

8. The respondents witness Saeed Tabassum (Administration Manager) in his affidavit in evidence has submitted that the petitioner Faisal Ali is not a workman as defined under the IRO, 1969 and Standing Order Ordinance, 1969. He was employed in supervisory capacity and therefore, he has no locus standi to file the instant petition. It is further asserted that one Ch. Muhammad Afzal who was employed as Admn. Manager was beaten by Mr. Faisal Ali petitioner on 16-7-1998 at the Factory Gate and the said Ch. Muhammad Afzal lodged F.I.R. against the petitioner. On the basis of which, a charge-sheet dated 18-74998 was served on the petitioner. He replied the same, but it was found unsatisfactory, therefore, Mr. Muhammad Rashid Siddiqui, PA to Managing Director was appointed as an Inquiry Officer by the General Manager in his capacity as Factory Manager who conducted the inquiry. On' the basis of the Inquiry-findings, the petitioner was dismissed from service. He further stated that the petitioner was dismissed from service on the above said ground and not on the ground of trade union activities. He was not given any threat by any body from the management for leaving trade union activities which is evident from the record that before this petition, the petitioner has never made any complaint regarding the threats as alleged by him. He further submitted that the Inquiry Officer had fixed 28-9-1998 for hearing, but on the request made by the petitioner for adjournment due to death of his relative, the Inquiry officer fixed 29-9-1998 for inquiry and informed the petitioner through courier service (TCS) arid also by telegram too. Although the petitioner was present on 29-9-1998 but he refused to participate in the inquiry proceedings intentionally, however, he has received the impugned termination order On 29-9-1998 in the Factory premises. It is further stated that Ch. Muhammad, Afzal former Manager Admin has left service of the Company and at present he is serving in Saudia and not available in Pakistan. Therefore, his affidavit

9. In his affidavit in evidence Muhammad Rashid Siddiqui (Respondent witness) has asserted that the petitioner had submitted an application for change of Inquiry Officer which was rejected by the management and he was informed accordingly: On 29-9-1998 the petitioner appeared before the Inquiry Officer but he did not participate in the inquiry and went away. He therefore, completed the inquiry and on the basis of the statements, prepared the inquiry report. In his affidavit in evidence (Respondent's witness) Amanat Khan has asserted that he was performing his duties at the Factory Gate as Gate Keeper, when Mr Faisal Ali asked Ch, Afzal as to why he has summoned the persons before, the Police. Subsequently he abused the said Ch. Afzal and gave hire beating,

10. In his cross-examination (RW/1), Saeed Tabassum has stated that: - "It is incorrect to suggest that the petitioner is a worker but he is Asstt. Foreman. It is also correct that the petitioner was appointed to the capacity of Supervisor which is also mentioned in my affidavit. He was performing his duty as incharge of the workers. I do not know how many workers were performing their duties under supervision of the petitioner. The function of the petitioner was to look after the work of workers. He was also authorised to grant leave to any worker, again said only the short leave. At present, I am not in possession of the record pertain to the workers but. however, I can produce... I have not seen the petitioner while he beating Ch. Afzal Admn. Manger of the Factory. The fight between the parties was due to their personal reasons and have no connection with the trade union. While RW/2 Amanat Khan, Chowkidar, in his cross-examination, has stated:-- "On the day of occurrence, the petitioner came to factory at 8-30 a.m. while he was standing outside the gate of the factory and Chaudhry Muhammad Afzal was standing inside the factory near the gate. The petitioner abused Chaudhry Muhammad Afzal... After that both the persons scuffled each other and thereafter, the public separated them.

11. The (RW/3) Muhammad Rashid Siddique in his cross-examination has stated that:- ".I have recorded statement of witnesses on 24-7-1998. I have provided opportunity to the petitioner for cross-examination. The rest of the witnesses of the case who were not examined by me, was due to the reason as they were absent. It is correct that I postponed the inquiry for recording statements of rest of the witnesses to 25-7-1998 and then to 28-7-1998. I could not record statements of rest of witnesses for the reason that the petitioner was arrested by police. It is incorrect to suggest that I have not issued a notice for inquiry when the petitioner was released from jail. The notice was issued to the petitioner on 28-9-1998. I did not hold any inquiry on 24-9-1998 but on 25-9-1998, the inquiry was carried out. It is correct to suggest that on 28-9-1998 the petitioner submitted an application for leave in order to attend the demise ceremony of his near relative. The petitioner was informed through telegram and courier service for 29-9-1998 and through a messenger... I have not recorded statement of the petitioner till now. On 29-9-1998, the petitioner refused to record his statement with me. The Management appointed me as Inquiry Officer. I was appointed by the General Manager of the Company namely Syed Riffat Mehmood. It is correct that the petitioner objected to my being an Inquiry Officer in September, 1998 but not on the date when, I was appointed as Inquiry Officer. The appointing authority who appointed me as Inquiry Officer is the General Manager and Factory Manager. I am not in possession of Notification of Riffat Mehmood who has been declared/authorised as Factory Manager."

12. Arguments were heard. Representative of the petitioner has reiterated the petitioner's stand taken in the petition. While justifying filing of the instant petition under section 22-A(8)(g) of I.R.O., 1969 before the Commission on the ground of unfair labour practice, representative of the petitioner has contended that the impugned termination letter was issued due to trade union activities of the petitioner. He further contended that even on merits dismissal of the petitioner was illegal on the grounds which are briefly stated as under:- "(I) that charge-sheet dated 18-7-1998 was not only based on false and baseless allegations, but also devoid of verifiable details. (II) that the petitioner while giving rep y to the said charge-sheet as denied all allegations that on 16th and 17th July, 1998. he was on medical leave vide Medical Certificate No.79916 and 79912 dated 16-7-1998 and 17-7-1998 issued by the Punjab Employees' Social Security Institution, Rawalpindi. (III) that there was no material on record against the petitioner with the Management to order a domestic inquiry. Even otherwise the General Manager who issued the notice of enquiry was not competent as he was pot Factory Manager, thus he could not appoint "Enquiry Officer" under the law. lie further submitted that the said Enquiry Officer was not an independent person as he was already annoyed with the petitioner due to his lawful trade union activities. The petitioner was not given proper opportunity to contest his case and even statement of the petitioner has not been recorded. He has further submitted that there was no evidence against the pe6rioner except a hearsay narration: The petitioner was, not told that the Enquiry proceedings have been finalised on 29-9-1998 He was under the impression that he would be allowed to lead his evidence to prove his innocence. But the petitioner was dismissed without holding any lawful enquiry and without affording any opportunity of defence to the petitioner. As regard the objection raised by the respondents that .the petitioner is not a workman, it was contended by the Representative of the petitioner, that the objection of the respondents is without any substance. He contended that though the petitioner was working as Assistant Foreman, but the question whether he is a workman within the purview of Clause (XXVIII) of section 2 of IRO, 1969 cannot be determined on the basis of the designation of his post, but on-the basis of the duties which he was performing. The petitioner is not only a workman but also President of the union and he was victimized on account of his trade union activities. He further contended that the petitioner is the. President of Sabro Air-conditioning, S.A. Brothers (Private) Ltd. Employees Union; Islamabad and he was continuously pressurized to quit his union, but when the respondents failed in their efforts, they challenged the registration of the union in Writ Petition No.1591 of 1998, before the Honourable Lahore High Court. Rawalpindi Bench (which has now been dismissed with cost of Rs.20,000). He further contended that the respondents are hostile to the petitioner union and the termination of the petitioner is tentamount to unfair labour practice. He has prayed that the petition may be accepted and the impugned dismissal order dated 29-9-1998 issued by the respondent-management may be rescinded as illegal and not sustainable in the eyes of law and the petitioner be reinstated in service with all back-benefits. In support of his contention, he sought reliance on the judgment reported in 1979 SCMR 304, 1984 PLC 408, 1988 SCMR 1664, 1989 PLC 206, 1990 PLC 96. 1992 SCMR 505, 1973 SCMR 672, 1979 TR(C) Labour 98 and 1985 PLC 112.

13. Replying to the contention of the Representative of the petitioner as stated above, learned counsel for the respondents has not only denied all allegations but also contended that the petitioner has failed to point out any specific allegation of victimization on the part of the respondents as mere holding of a post in a trade union does not bring the case within the mischief of section 15 of the IRO, 1969. He referred 1974 PLC 306, 1987 PLC 547 and 1988 PLC 923; wherein it has been held that initiation of disciplinary proceedings against an employee being a routine matter would not lead to any presumption of unfair labour practice under section 15 of I.R.O. 1969. To hold any enquiry against its employees suspected guilty of misconduct is the right of the employer which could not be curbed or taken away merely because the employee happened to be an office-bearer of the union and as such this Commission has no jurisdiction to adjudicate upon and deal with the matter. He further contended that the petitioner was employed in supervisory capacity and was working as Assistant Foreman at the time of his termination and he was not covered under the definition of workmen as laid down under the I.R.O., 1969 and Standing Order Ordinance, 1968, therefore, he has no locus standi to file this petition. He-further submitted that Ch. Muhammad Afzal Admn. Manager was beaten by the petitioner on 16-7-1998 at the Factory Gate and the said Ch. Afzal lodged F.I.R. against the petitioner and on the basis of which a charge-sheet dated 18-7-1998 was served upon the petitioner and he was afforded a fair opportunity of hearing. but he failed to rebut the allegations. He further contended that the Medical Certificate issued by the Punjab Employees Social Security Institution dated 16-7-1998 and 17-7-1998 (Mark P/I, Page 8 of the file) seems to be forged as the Certificate dated 16-7-1998 contain No.79916 while Certificate dated 17-7-1998, contain No.79912. He further contended that it is an admitted fact that the petitioner has beaten Ch. Afzal (Adorn. Manager) on 1.6-7-1998 and it was proved beyond any doubt that he has committed misconduct and his termination is the result of misconduct committed by him. He prayed that since the petitioner failed to make out a case of unfair labour practice, thus the petition being not maintainable, be dismissed. In support of his contention learned counsel for the respondents has placed reliance an the decisions reported in PLD 1970 (BL), 05; 1970 SCMR 491, 1992 CLC 235, 2001 PLC 79, 1996 PLC 107 and 1997 PLC 246.

14. I have given my anxious consideration to the submissions made by the Representative of the petitioner and learned counsel for the respondents and have also examined record of the case minutely. I find that one of the most important feature of the case is that the petitioner is the President of a registered trade union and if in a normal situation a charge-sheet is served upon the petitioner, it could be definitely a case of unfair labour practice, particularly when the charge-sheet is being used as a cover for an unjustified action by the employer with a view to eliminate him from the screen/union, but on the other hand, the petitioner is not immune from disciplinary action/proceedings if he is involved in some charges which amounts to misconduct and punishment of which is dismissal from service, thus the petitioner could be dealt with in accordance with law for the misconduct committed by .him. The petitioner being occupant of a highest office in the union does not deserve any leniency, if it is proved that he has committed misconduct. The charge-sheet is a very serious action. The charge-sheet I against the petitioner is that on 16-7-1998 at about 9-20 a.m. on Gate No.4 of the Factory. he exchanged sonic hot words with Mr. Muhammad Afzal, Manager Administration and then started abusing him profusely and thereafter, asked one Saadullah worker to catch hold of Ch. Muhammad Afzal, who while rescuing himself ran towards Gate No. 1, but the petitioner chased him and given him serious blows with some instrument, on the head and the ear resulting in injuries on his head and ear. As a consequence he bled profusely. While replying to the said charge-sheet, the petitioner denied the allegation and contended that due to fever and pain, he was on medical leave vide Medical Certificates Nos.79916 and 79912 dated 16-7-1998 and dated 17-7-1998 issued by the Punjab Employees'. Social Security Institution, Rawalpindi. He further submitted that to punish the petitioner on account of his trade union activities, the respondents have concocted a false and baseless case against the petitioner. The reply of the petitioner was not found satisfactory by the management and therefore, a domestic inquiry was ordered. According to inquiry report which is on record, the Inquiry Officer appointed on 24-7-1998, held inquiry in which the complainant Ch. Muhammad Afzal (Manager Administration) and the petitioner Faisal Ali participated. The petitioner Faisal Ali requested for services of a co worker namely Sajid Hassain General Secretary of the union to assist him in the inquiry. The request was allowed and the Inquiry Officer summoned the said Sajid Hussain to help/assist the petitioner in the Inquiry. In the presence of the accused Faisal Ali, statement of the complainant Ch. Muhammad Afzal was recorded by the Inquiry Officer, who corroborated the allegations made in the charge-sheet. The petitioner was asked to cross-examine the complainant, who cross-examined the complainant and put question mostly in respect of the nature of injuries received by the complainant but he could not dig-out anything from the witness in his favour. On behalf of the prosecution another witness Amanat Khan was produced. The petitioner was asked to cross-examine the said 'witness, but he declined to do so. Third witness Muhammad Younus Chowkidar was also produced. His statement was recorded: But he was also not cross-examined by the petitioner. Both the said witnesses corroborated the statement of Ch. Muhammad Afzal in all respects. The petitioner has affixed his signatures on the inquiry proceedings below the statements of the said witnesses. However, thereafter, the inquiry was adjourned to 25-7-1998 as witness Saadullah was not present. On 25-7-1998, the petitioner attended the inquiry alongwith his Co-Worker. However, the petitioner requested that as he has to attend the Court in a case on 27-7-1998, therefore, the inquiry be held on 28-7-1998. Though on the said date the witness Saadullah was present, but it was informed that the petitioner could not attend the inquiry because his bail was cancelled by the Court. As a result the inquiry was postponed/adjourned to 1-8-1998. But on 30-7-1998 a request was received that the petitioner Faisal Ali is in the custody of police station I-9 and that as soon as he is released on bail he would request for the next date of the inquiry proceedings Consequently the Inquiry Officer ordered that the next date would be fixed after release of the petitioner on bail. However, on 2d-9-1998 when the petitioner was released on bail, he during the inquiry proceedings submitted a copy of his application to the Inquiry Officer which he had moved before the management for change of Inquiry Officer an the allegation of his partiality and requested for adjournment of the inquiry proceedings pending decision of the application by the Management, the Inquiry Officer, therefore, accommodated the petitioner and adjourned the inquiry till decision of the Management on the said application. At this stage, I consider it necessary to observe that throughout the proceedings which were held on different dates the petitioner never objected to the conduct of the Inquiry Officer who was holding the inquiry. On the contrary, it appears .that the Inquiry Officer accommodated the .petitioner by postponing inquiry proceedings. He was also allowed to cross-examine the witness but the petitioner himself did not cross? examine the witness acid the petitioner affixed his signatures to confirm the proceedings as correct. I am, therefore, inclined to hold that the conduct of the Inquiry, Officer was above board. Since application of the petitioner for change of Inquiry Officer was rejected, the inquiry was again fixed to be held on 28-9-1998 at 10-00 a.m. On the said date the petitioner submitted an endorsed copy of the application for leave to the Inquiry Officer moved by him before the Management: The leave was sought on the ground that the petitioner had to attend funeral ceremony of his relative. The Inquiry was, therefore again adjourned to 29-8-1998. The petitioner was informed through a telegram about the neat date. Copy of the said telegram was also sent through courier service to the petitioner.

15. On 29-9-1998 the inquiry proceedings commenced at 10-00 a.m., but Faisal Ali was not present, however, some one on his behalf informed that he is busy before some Court. On receiving this information, the said person was instructed to cotnmunicate6isal Ali to come to attend the Inquiry as soon as he is free from the Court. Faisal Ali presented himself before the Inquiry Officer at 11-30 a.m. and requested for postponement of the inquiry. As he did not disclose any valid/cogent reasons/ground for postponement' of inquiry; he was directed to participate in the Inquiry. But Faisal Ali went out saying that he does not want to participate in the inquiry and the Inquiry Officer may indeed continue with his inquiry. As witnesses of the prosecution have already been cross-examined and the accused in spite of affording many opportunities did not participate in the inquiry accordingly the Inquiry Officer concluded his inquiry proceedings and the inquiry report holding the petitioner guilty of the charges was sent to the Management who have passed the impugned dismissal order of the petitioner which has been challenged in this petition.

16. I have also gone through the statements recorded in the inquiry and find that there is no reason to disbelieve the testimony of the witnesses produced before the Inquiry Officer. I also find that there is no reason to disagree with the findings of the Inquiry Officer because the-petitioner himself did not cross-examine the two eye-witnesses of the incident. It is also on record that the petitioner did not produce his witness before the Inquiry Officer in spite of the fact that he was given full opportunity to prove his innocence.

17. In this view of the matter, it has been rightly contended .by the learned counsel for the respondents, that the petitioner has failed to quote any specific instance of unfair labour practice on the part of the respondents as he admitted in his cross-examination that he. has not filed any complaint regarding the alleged threat given by the respondents to quit the trade union activities. There is also no mentioning in the evidence adduced by the petitioner's, witnesses- namely Sajid Hussain, Muhammad Idrees and Muhammad Nawaz, regarding the alleged unfair labour practice on the part of the respondents. The- petitioner fails to produce any witness in support of his assertion. It may be pertinent to mention here that a perusal of the inquiry proceedings placed on record would show that though the petitioner cross ?examined the prosecution witness, but he could not digout anything from the said witness in his favour. Similarly there is no mentioning regarding the allegation of unfair, labour practice against the respondents. The petitioner has failed to mention the naive of any officer/executive of the Management who pressurised/persuaded him to quit his trade union activities, therefore, it cannot be believed that he was victimised by the respondent-Management. Though the petitioner has cited certain irregularity in the disciplinary proceedings and the inquiry report, but the same are pointless because the Commission would acquire jurisdiction only if it is shown that an unfair labour practice has been committed. In this view of the matter, while determining whether an unfair labour practice has been committed or not, the allegation that the disciplinary proceedings/actions violated the most basic tenets of a fair trial would be foreign for consideration by this Bench unless the element of unfair labour practice is first proved to be present. I, therefore, could not bring myself to agree with the petitioner that his case is based On allegation of unfair labour practice.

18. In view of what has gone above, it follows that it is exclusive domain of the employer to. proceed with the disciplinary proceedings unless there is a streak of unfair labour practice and the disciplinary proceedings/inquiry are being used as a cover for an unjustified action and unfair labour practice, the Commission would have no jurisdiction to go into I regulating or otherwise the disciplinary proceedings. To take disciplinary proceedings against any employee is the vested right of the employer and the Commission have no jurisdiction to interfere, however, if an action of the Management is found to have been initiated by way of victimization or unfair labour practice, the Commission will then have the jurisdiction to interfere with the proposed action, otherwise jurisdiction of the Commission is completely ousted because the assumption of jurisdiction by the Commission is depending upon prima facie of unfair labour practice.

19. As discussed above, on a minute examination of the pleadings of the parties and their respective versions, I find that the petitioner failed in proving that on account of his trade union activities his services were, terminated by way of unfair labour practice as defined under section 15 of! I.R.O., 1969. He has failed to quote any specific instance of unfair labour practice, but has repeated his allegations of being victimised due to trade union activities. Mere bald allegations of unfair labour practice are not sufficient to. prove victimization and make amenable for interference by the Commission, in the circumstances the relief prayed for cannot be granted.

20. Upshot of the above discussion is that the petitioner fails in proving unfair. labour practice on the part of the respondents, I, therefore, have no hesitation in holding that this Commission have no jurisdiction to deal with the petition which is hereby dismissed. Parties are directed to bear their own costs. File be consigned to record. H.B.T./75/NIRC????????????????????????????????????????????????????????????????????????????????? Petition dismissed.