2010 PLP 4 (PLC)

GHULAM NABI DEESHAK (MEMBER).

This petition under section. 25(8)(g) of the IRA, 2008 along with stay application under rule 32(2) of NIRC (P&F) Regulations, 1973 supported by affidavit filed by the petitioner against the respondents.

2. The brief facts of the case are that the petitioner was initially appointed as Collection Officer on 7-2-2008 in the respondent No.1 Bank. The petitioner started performing the duties and on the basis of best performance the petitioner was promoted/appointed as Supervisor in the OG-III by respondents vide order, dated 4-11-2008 and on probation for six months. During this period some employees/workers of respondent No.3-Bank formed a trade union and submitted it for registration with the objective to protect the legal rights of workers in respect of their employment, terms of employment, timing of employment and such other legal rights provided under the law. As soon as the union was formed and workers started becoming the members of the said union, the behaviour of the respondents Nos.1 to 3 got annoyed of with the employees, they started harsh and openly extended threats to all the workers with following terms:

"in case anyone join the said union will not remain in service." The petitioner considering all the legal aspects decided to join Trade Union of his own choice and became the member of All Pakistan United Workers Union United Bank Limited. He filed the membership form and handed it over to the President of the Union. Upon this particular act of the petitioner, the respondents are neither issuing confirmation letter, nor otherwise extending the period of probation for this reason. The petitioner is 'apprehended that the respondents intend to refuse the petitioner became employee only on the ground that the petitioner became member of trade union of his own choice. The petitioner prayed that respondents may be directed not to commit any act of unfair labour practice and not to cause injury to the employment of the petitioners by way of dismissal, discharge, removal, termination, posting, shifting, transfer etc.

3. The instant petition was procured to this Bench by learned counsel Mr. Abdul Hafeez Amjad on 11-5-2009 which was accompanied by stay application and affidavit duly attested by Oath Commissioner. After preliminary hearing of the case the petition was admitted and status quo was granted notices were issued to the respondents for filing parawise comments on main petition and counter-affidavit on stay application. The respondents filed parawise comments and raised legal objections on the maintainability of the petition that the petitioner was under probation period of six months. The performance evaluation of petitioner as a probationer was conducted on 7-5-2009 and his performance during the probation period was found unsatisfactory and petitioner was terminated. Copy of probation Evaluation Form filed as Annexure "R/3". The said, termination letter posted through TCS on 9-5-2009 and received by the petitioner on 11-5-2009 at 12-3 hours.

4. I have heard the arguments of the learned counsel for the parties at quite length. Mr. Abdul Hafeez Amjad, learned Advocate for the petitioner has contended that the petitioner was initially appointed as Collection Officer on 7-2-2008 in the respondent No.1-Bank and started performing the duties on the basis of best performance of the petitioner, the respondents Nos.1 to 3 management vide order, dated 4-11-2008 promoted/appointed him as Supervisor in the OG-III on probation of six months. He contended that during this period the employees of respondent No.3 formed a trade union and submitted it for registration in order to provide legal protection to the rights of workers because still nobody is secured with regard to his employment, terms of employment, timing of employment and such other legal rights provided under the law, as soon as the union was formed and workers started becoming the members of the union, the behaviour of the respondents Nos.1 to 3 management with the employees became harsh and openly extended threats to all the workers category, that in case anyone would join the union will not remain in service and he would also be subjected to actions. He further contended that the petitioner considering all the legal aspects decided to join Trade Union of his own choice and became the member of All Pakistan United Workers Union United Bank Limited, and filed the membership form. He further contended that upon this particular act of the petitioner, he has been terminated from service although in presence of status quo order issued by this Bench which is violation of order of this Commission and prayed reinstatement the petitioner with further of initiating action under the contempt of Court for disobedience of order against the .respondents. He referred the following case-law in. support of his contention:

1990 PLC 23, PLD 1969 (?) 349, 1991 MLD 1608, PLD 1996 (?) 610, 1980 SCMR 89, 2000 PLD (?) 387, 1998 PLC 390, 2004 PLC 182.

5. Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has argued that the petitioner was undergoing probationary period of six months and performance evaluation, of the petitioner, as a probationer was conducted on 7-5-2009 and his performance was found unsatisfactory: He was terminated from service on 9-5-2008 which was served on the petitioner on 11-5-2009 at' 12-03 hours through TCS. He has also contended that the petitioner was in the knowledge that he had been terminated and the Commission under Regulation 32 have been vested the powers to prohibit an act likely to be committed and not those acts which have already been committed. He argued that the petitioner wilfully and deliberately filed this petition with mala fide intentions on 11-5-2009 and the factum of termination having undertaken on 9-5-2009 was suppressed and false plea/statement was taken. He contended that the petitioner was non-workman in Bank, the trade unions of workman registered in the two CBUs of UBL by the Honourable RITU, NIRC have specifically excluded officers from its membership and it only contains membership of clerical and non-clerical cadre of the Bank who are workmen. He contended that the petitioner as OG-III was Card Collection Supervisor and his main function was to implement collection strategy, supervise and manage a team of Collectors in Credit Card Collection by assigning accounts, monitoring for performance against given monthly objects and targets, evaluate training requirements of subordinate Collection Officers, -plan and conduct the same, carry out supervisory reviews, attain goals and objectives of collection for the assigned product in line with product/policy assigned parameters. He also contended that this petition is not maintainable in law as none of the ingredients of unfair labour practice have been alleged nor claimed to have been violated by the respondents but with mala fide intentions the terminologies have been used to justifies the petition alleging unfair labour practice and the respondents have not been committed unfair labour practice. He contended that the petitioner has made false statement and have misconstrued the facts in the present petition and even otherwise not entitled to the discretionary relief by this Honourable Commission. He prayed that apart from the legal objections, even on merits the petition is liable to be dismissed. He referred the following law case with support of his contention:

1985 SCMR 257, 2002 PLC 212, 2008 PLC 147, 2002 TDL 330, 1996 PLC 687, 2001 PLC 310, 1998 SCMR 53-66 and 1999 PLC 447.

6. I have considered the arguments advanced by the learned counsel of the parties and have gone through the petitions under section 25(8)(g) of IRA, 2002 along with applications under rule 32(2) of NIRC (Procedure and Functions) 1973 supporting affidavits filed by the 'petitioners, reply statements with legal objections and case referred by the learned counsel. The learned counsel for the petitioner has not filed rebuttal of the counter-affidavit filed by respondents.

7. It is crystal clear from perusal of documents that the petitioner has been terminated from service on 9-5-2009 and the letter of termination was served upon him on 11-5-2009. The petitioner has concealed the facts from this Commission to file this petition for granting of status quo order.

8. For the aforesaid reasons, I am of the view that the petitioner has failed, to make out prima facie case for grant of interim relief. Accordingly the application under Regulation 32(2) of NIRC (P&F) Regulations, 1973 is hereby dismissed and the interim prohibitory order passed by this Bench of Commission on 11-5-2009 stands recalled. Put off to 31-8-2009 for filing affidavit-in-evidence by the petitioner. H.B.T./16/NIRC????????????????????????????????????????????????????????????????????????????????? Order accordingly.