2020 PLP 218 (PLC)

MIAN SHAKIRULLAH JAN, CHAIRMAN.

Through the instant appeal, the appellants have impugned the order dated 21-01-2019 passed by the learned single bench NIRC Karachi, whereby their petition under section 54(e) & (h) read with section 33 of IRA, 2012 was dismissed.

2. The appellants in their petition before the learned single bench have stated that they have been working in PIAC since long. They have prayed to declare the impugned letters dated 17.05.2017, 19.02.2018 and show-cause dated 26.02.2018 along with other similar notices impugned in the petition as unlawful, arbitrary, mala fide and in violation of principles of natural justice, as the misconduct under section 2(75)(aj) of PIA (Employees Service and Discipline) Regulations, 1985 cannot be attracted to the petitioners (PG- I-IV) who submitted their genuine educational degrees and to grant permanent injunction restraining the respondents not to injure the services of the petitioners.

3. The learned counsel for the appellants have argued that the appellants have been issued show-cause notice pursuant to the order of the Hon'ble Islamabad High Court in W.P. No. 4064/2014 as stated in the impugned show cause notice; however, the Hon'ble Islamabad High Court had passed order against the officers and officials of the PIAC. There is no mention of the staff i.e. staff drawing pay in the PG-I to IV. The W.P. No. 4064/2014 was filed by an employee drawing salary in PG-I to IV; therefore the Hon'ble High Court directed initiation of disciplinary proceedings against the beneficiaries of the decision of 64th ELT meeting and willfully restricted itself only to the officers/officials. The manual of PIAC has classified the employees drawing pay in PG-I to PG-IV as staff, the employees drawing pay in PG-V to PG-VIII as officials and the employees drawing pay in PG-IX and above as officers. All the appellants are drawing pay either in PG-IV or below and all such employees are classified as staff in the manual of PIAC. Thus, the order of the Hon'ble Islamabad High Court is not applicable to the appellants and the respondent establishment is victimizing the appellants who are poor worker under garb of the order of the Hon'ble Islamabad High Court.

4. The learned counsel has contended that the decision of 64th ELT meeting whereby the employees in non-management cadre i.e. PG-IV and below whose degrees have been found bogus/fake were allowed a grace period of two years to submit the genuine degrees/certificates is still intact. As the order of the Hon'ble Islamabad High Court did not set aside the same as the said order is not applicable to the staff member of PIAC. The learned counsel for the appellant referred to the principle of Locus Poenitentia and submitted that a vested right has been accrued in favour of the appellants and it can't be withdrawn in disadvantage of the appellants. Reliance has been placed on 2007 PLC (C.S.) 824; 1988 MLD 374 and 2004 SCMR 1864.

5. The learned counsel for the appellants has further submitted that the appellants were appointed in the PIAC after scrutiny and in case of any irregularity the appointing authority is to be blamed and proceeded against instead the poor worker who earns livelihood for himself and his family. Reliance has been placed on 2004 SCMR 1077 and 2014 PLC (C.S.) 479.

6. It has further been argued that the appellants are being vexed twice for the same accusation. Earlier the Employees Leading Team (ELT) in its 64th meeting has decided that the career growth of all employees whose degrees have or will be found bogus/fake, to be frozen and now again, show-cause notices intending dismissal from service have been issued in violation of the principle of double jeopardy as envisaged in Article 13 of the Constitution of Pakistan. Reliance has been placed on 2004 PLC (C.S.) 959.

7. With regard to service of grievance notice being pre-requisite for taking cognizance under section 33 of the IRA, 2012, the learned counsel for the appellant has stated that requirement of service of a grievance notice is directory and not mandatory. The appellant can't be non-suited for non-service of grievance notice to the employer, especially in the peculiar circumstance of the case when there exists strong apprehension of dismissal from service as law is made for man, not a man is made for law.

8. He submitted that the authority having power to grant ultimate relief also have to grant interim as well as ancillary relief. It has also been argued that the learned single bench has committed serious irregularity by non-suiting the appellant without affording an opportunity to furnish evidence to prove their accusation regarding acts of unfair labour practice on part of the management of PIAC. The learned counsel contended that the question involved in the petitions is a mixed question of law and fact and it is a well settled law that the mixed question of law and fact can only be decide after recording evidence.

9. Conversely, the learned counsel for the PIAC has vehemently opposed the contention raised by the learned counsel for the appellants and supported the impugned order. It has been argued that no illegality or irregularity has been committed by the learned single bench that has rightly dismissed the petition. It has further been submitted that essential pre-requisites of service of grievance notice to the employer before filing a grievance petition before this Commission had not been fulfilled by the appellants and PIAC has sufficient documentary evidence to proceed against the appellants.

10. The appellant had invoked the jurisdiction of this Commission. It appears that the petition was initially under Section 54 (R) but subsequently on the top of the line, (e) has been added in order to bring it within the ambit of Sections 31 of the IRA, 2012 but the petition as a whole does not contain any averment relating to Section 54(e) rather in para 5 of the petition specifically stated that the grievance of the petitioner falls under Section 33 of IRA, 2012.

11. We have given anxious consideration to the arguments advanced by learned counsel for the parties and perused the available record with their able assistance.

12. For the assessment of the above mentioned question as to whether the show-cause notice about the fake degree is a pretext on the part of the respondent and it really inclined to remove the appellant for ulterior motive or otherwise, a little background is required.

13. The Establishment Division in the year 2011, on the directive of the Prime Minister of Pakistan, that measures should be taken to authenticate degrees / certificates of all Federal Government Employees of the respective Ministries / Divisions their Departments, Subordinate Offices and Autonomous Bodies under their administrative control, has issued instructions accordingly. It is these directives under which the verification of the degrees/certificates was initiated through verification by the concerned Board/Universities.

14. The honourable Supreme Court has also taken cognizance of the fake certificate/degree in a number of cases and one of them is the case of Anwar Ali v. Chief Executive HESCO (WAPDA) (2009 SCMR 1492), where the Supreme Court has taken a serious view that where department has imposed a penalty of dismissal from service of civil servant for submitting forged academic certificate. The service tribunal, on appeal, changed the penalty of dismissal from service into compulsory retirement. The Hon'ble Supreme Court while setting aside the conversion of the penalty restored that of passed by the department of dismissal from service and observed that a department was free to examine the possibility of getting a criminal case registered against the civil servant. This process of submission of fake certificates and their scrutiny still continued when in the HRC case No. 8645/2018 on the directions of the honourable Supreme Court issued to scrutinize the cases even of the pilots and cabin crew and on scrutiny a number of them was disqualified as evident from the report submitted on 09-01-2019 by the management to the honourable Supreme Court.

15. Certainly, initiating disciplinary proceedings against a worker on account of misconduct is a legal-right of the employer and restraining him from exercise of such right will tantamount to preempting his decision which cannot be the scheme of the law as it may give rise to anarchy. The issuance of show-cause does not mean that the case will be invariably decided against the appellant and there is always a possibility that the same may be decided in favour of the appellant. It is well settled that mere issuance of a show-cause notice does not amount to adverse action.

16. The Islamabad High Court in Saeed Ahmed case (supra) has held: "Framing of charges, conducting enquiry, issuing show-cause notice and taking action after enquiry are the various stages of continuous process of disciplinary proceedings. Disciplinary proceedings one initiated must reach the finality, culminating in imposing punishment or exonerating the delinquent. Testing each stage of the proceeding as to whether they are in conformity with the norms as laid down would be an unwarranted judicial interference in the domain of disciplinary authority by the N.I.R.C. Compliance of the norms laid down under the disciplinary rules can be examined when the process culminates in a penal action causing injury to the delinquent. Non-observance of norms at various stages may vitiate the ultimate action of imposition of a penalty or exoneration, as the case may be. I fully agree with the observation of the learned Member NIRC that the object of a show cause notice is to provide an opportunity to the person to whom it is addressed to explain his position and to defend himself against the allegation that is levelled against him. It is well settled that mere issuance of a show cause notice does not amount to an adverse action."

17. Section 33 of IRA, 2012 provides a detailed procedure for the redressal of individual grievances. First of all an employee before recourse to the Commission will have to given grievance notice to the employer of his grievance in writing within 90 days of the day on which the grievance has arisen which reads:- "A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent within ninety days of the day on which the cause of such grievance arises."

18. Admittedly, the appellants did not serve a grievance notice as stated in para No. 5 of the petition that the petitioners (appellants) are severely aggrieved from the Respondents Nos. 1 and 2 and cannot submit a notice/reply to the same as they are apprehensive of being hauled into the ongoing illegitimate inquiry proceedings and a consequential dismissal. Contention of the learned counsel for the appellant that requirement of service of a grievance notice is directory and not mandatory is not convincing and is not legal. Industrial Relations Act, 2012 is a special law and for availing a remedy under a special law. The prescribed procedure is mandatory to be followed. In this respect, reliance can be placed on the judgement of Islamabad High Court reported as Matee-ul-Hassan v. National Industrial Relations Commission Appellate Bench at Islamabad and 4 others 2018 PLC Note 30; the relevant part is reproduced hereunder: "Filing of grievance notice was an essential pre-requisite for filing grievance petition before National Industrial Relations Commission. Procedure prescribed under S. 33 of Industrial Relations Act, 2012 had not been followed as no grievance notice had been served." "Essential pre-requisites of issuing grievance notice to the employer before filing a grievance petition before National Industrial Relations Commission had not been satisfied in the present case

Forums below were correct in dismissing the petitioner's grievance petition"

19. What has been stated above and in view of the circumstances of the case, while upholding the impugned order of the Single Bench, we hold the petitioner's challenge to the show-cause notice under the provisions of law is not maintainable; thus, any discussion on other points of arguments is not required. Also CMA is disposed off.

20. During the course of arguments another question came up under consideration is with regard to the applicability of the laws dealing with the disciplinary proceedings in the case of the workman of the respondent establishment. The respondent having their own service rules i.e. Pakistan International Airlines Employees (Service and Discipline) Regulations, 1985 dealing with such cases. However, in case of the workman the primary law dealing with such type of cases is Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. According to proviso to Section 1(4)(c), the Ordinance would not be applicable in case of the establishment having statutory rules of service. It is only the statutory rules which have been excluded from the purview of Ordinance, 1968 in case of workman. However, such a provisions do not exist regarding the non-statutory rules. The respondent's service rules i.e. Pakistan International Airlines Employees (Service and Discipline) Regulations, 1985 are non-statutory as held by the honourable Supreme Court in case titled Pakistan International Airline and others v. Tanveer-ur-Rehman PLD 2010 SC 676, Mrs. Anisa Rehman v. PIA and others 1994 SCMR 2232 and by the honourable Peshawar High Court in case titled Zafar Iqbal v. PIA through General Manager (Personnel) PIA Karachi and 4 others 2011 PLC (C.S.)

259. Since the PIA Service Rules are non-statutory so it would be the Ordinance, 1968 which is applicable. However, this aspect is not available in the present lis as the petition has been dismissed on the question of non-maintainability of the petition before reaching the adjudication of the instant question.

21. The other question for consideration as to whether the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would cover the cases of fake and forged degree certificates. The honourable Supreme Court in case titled M. Musa v. HBL and others 2012 SCMR 979, held that using fake certificates either getting employment or further benefits has been dealt under Standing Order 15(3)(b) of Ordinance, 1968. The relevant extract of the judgment is reproduced as under:- "The Standing Order provides for punishment, Sub-clause (3) of it defines the acts and misconduct. Sub-clause (2) of this Standing Order lays down that a workman guilty of misconduct shall be liable to punishments and item (iv) of it provides dismissal without payment of any compensation in lieu of notice. The acts and omission which are misconduct are enumerated in sub-clause (3) item (b) of it is 'theft, fraud, dishonesty in connection with the employer's business or property'. In our view, the acts and omission of the appellant squarely falls within the above referred item (b) of sub-clause (3) of Standing Order 15 in that by producing bogus intermediate marks sheet and certificate in the first place, the appellant has committed fraud and dishonesty and further by obtaining benefit on the basis of such marks sheet / certificate that of promotion to the post of Cashier in the Bank, the appellant again committed fraud and dishonesty in respect of the employer's business and property in that he procured for himself unlawful gain in the form of monetary benefits which amounts to defrauding the property of the employer."

22. In the case of Saeed Ahmed (Supra) Islamabad High Court has also expressed the same view as under:- "the submission of fake academic qualifications to an employer in indeed an act of misconduct."

23. Before parting with the order we may mention here that the PIA Employees (Service and Discipline) Regulations 1985 of the PIA are non-statutory and if any action is to be taken against a workman either it should be under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and if it is under the establishment's own rules or under the terms and conditions of the appointment letter, the same should be in conformity with the Ordinance, 1968 and not in violation of the same as in case of non-statutory rules the provisions of the Ordinance, 1968 shall prevail.

24. The respondent if intends to proceed against the appellant it should be strictly in accordance with and in line with the Ordinance, 1968. In this respect we are fortified by a judgment of the Hon'ble Supreme Court in case titled Hafeez Shah v. United Bank Limited (2001 SCMR 931) wherein it was held that provisions of Standing Order 15 of the West Pakistan Commercial and Employment (Standing Orders) Ordinance, 1968 are mandatory and their non-observance would vitiate the entire proceedings.

25. Moreover, the fundamental right of fair trial and due process is to be ensured.

26. For the foregoing reasons, the instant appeal is dismissed.

27. Parties to bear their own costs. File be consigned to the record room after due completion. ZC/5/NIRC Appeal dismissed.