1996 PLP 461 (PLC)

"Section 22‑C. Additional powers to the Commission.‑‑In addition to the powers which the Commission has under section 22‑B‑‑ (a) the Commission shall have power to punish any person who obstructs or abuses its process or disobeys any of its ‑order or does anything which tends to bring it or any of its members in relation to proceedings of the Commission into hatred or contempt or does anything which, by law, constitutes contempt of Court, with simple imprisonment which may extend to six months or with fine which may extend to two thousand rupees, or with both; and (b) .............................................................................

6. Under the circumstances since he has deliberately failed to comply with order dated 14‑9‑1995 of this Commission he is directed to explain as to why the proceedings under section 22‑C of the IRO, 1969 be not initiated against him for having disobeyed the orders of this Commission. To come up on 26‑10‑1995."

6. I may observe here that some of the advocates in cases argued before me that the Commission has power under section 22‑A(9)(b) only to withdraw from the Labour Court those cases which were covered by subsection (10) of section 22‑A and not in other cases. I have applied my mind to this position and I am of the considered view that meaning of word 'withdraw' as per 20th Century Chambers' Dictionary is 'to take back' or 'take away' which clearly means that the Commission has both the power to withdraw the cases so transferred under subsection (10) of section 22‑A or to withdraw any application, proceedings or appeal relating to unfair labour practice which means that the Commission has both the powers and it can awfully exercised. This view is very strengthened by the fact that the appeals are filed against the orders of Labour Court before learned Sindh Labour Appellate Tribunal and those cases also where there is element of unfair labour practice clearly shows that the Commission has in such situation right, jurisdiction and authority even to withdraw the appeals from the Sindh Labour Appellate Tribunal; therefore the orders to withdraw the cases from the Labour Court are proper and legal.

7. However thereafter the learned Labour Court on 14‑11‑1995 sent the above files to this Commission for further proceedings and adjudication.

8. Copies of the charge‑sheets/show‑cause notices pursuant to which the above five applicants were dismissed from the respondents' service have been filed alongwith their above/respective applications under section 25‑A of the IRO, 1969. It transpires that there was a common joint charge‑sheet/show‑cause notice dated 11‑6‑1995 issued to all five applicants separately and‑ that in the case of Tabish Shamim, the applicant at S.No. 5 in Case No. 358, there was an additional/earlier charge‑sheet dated 6‑6‑1995 as well.

9. The four applicants at S.Nos. 1 to 4 above, upon their dismissal on being found guilty to the misconduct alleged in the said joint/common show cause notice dated 11‑6‑1995, have filed their respective applications under section 25‑A. So also the applicant at S.No. 5 namely Tabish Shamim has filed his application under section 25‑A on being dismissed for misconduct alleged against him in the said joint show‑cause notice dated 11‑6‑1995 (pursuant to which a joint enquiry was held against all five applicants) as well as for misconduct alleged against him separately earlier in the charge‑sheet dated 6‑6‑1995 (for which a separate domestic enquiry was held by a different enquiry officer).

10. All allegations of unfair labour practice and illegalities etc. on the part of the respondent made in the above five applications under section 25‑A of the IRO, 1969 have been denied by the respondent in its reply statement filed in the above five cases. .

11. All five applicants filed their respective affidavits in evidence on their behalf but only two of them namely Tabish Shamim and Saeed Ali were cross -examined and their evidence has been agreed by consent to be treated as a common evidence on behalf of all the five applicants and no other evidence was produced on their behalf.

12. On behalf of the respondent common affidavits in evidence of Maj.(R) Saeed Jung (General Manager, Administration and Logistics), Shamim Javed (Deputy Manager Employees Relations), Khalid L. Aslam (Regional Manager Sales) and Azam Akhtar (Manager Commercial) were filed in all the five cases. Each one of them was cross‑examined by the advocate of the applicants.

13. I have perused the record and proceedings in all five cases and considered the arguments of the learned Advocate of the applicants and the respondent. My observations and conclusion are as follows.

14. As regards the case of Tabish Shamim (Case No. 4A(358)/95‑K) the issuance of the earlier charge‑sheet dated 6‑6‑1995 to him had been necessitated and was unavoidable because his superior namely Tamkin Ahmed had complained that the said Tabish Shamim had not only repeatedly refused on 31‑5-1995 to carry out the reasonable and lawful orders of said superior Tamkin Ahmed to start production on the production line at the relevant time but also threatened the said superior that he will see him. The relevant production line thus remained idle for about 30 minutes and the loss in production has to be made up later on the same day. The applicant Tabish Shamim was therefore rightly charged in the charge‑sheet dated 6‑6‑1995 with misconduct under S.O. 15(3)(a) of the Standing Orders Ordinance, 1968 i.e. "wilful insubordination" and/or "refusal to carry out reasonable and lawful orders of his superiors".

15. This Commission has already held in its earlier order dated 21‑6‑1995 in Case No. 4A(286)/95‑K and 24(95)/95‑K under section 22‑A(8)(g)/Reg.32(2)(c) that mere issuance of the charge‑sheet dated 6‑6‑1995 to applicant Tabish Shamim could not be said to be victimisation due to his trade union activities or an act or unfair labour practice in the aforesaid circumstances of the case.

16. It is significant that no allegation of empty or bias has been made by applicant Tabish Shamim against Azam Akhtar the Enquiry Officer or the manner of conducting the enquiry by him either in the grievance notice or in his above Application No. 4A(358)/95‑K under section 25‑A or in his affidavit‑in evidence except that he alleged in his affidavit in evidence only that there was no evidence against him to prove the charge which allegation is also contrary to the record of enquiry proceedings.

17. The Enquiry Officer namely Azam Akhtar who conducted the dome9tic enquiry in the case of applicant Tabish Shamim has 'filed his 'affidavit in evidence alongwith the relevant documents including the record of the ex parte enquiry proceedings held by him on 14‑6‑1995 besides his enquiry report finding Tabish Shamim guilty of the misconducts as alleged in the show‑cause notice dated 6‑6‑1995 issued to him. Mr. Azam Akhtar has deposed among other things, that he conducted the enquiry into the misconduct alleged in the charge‑sheet against Tabish Shamim honestly, fairly and impartially and without any. influence from the management. The enquiry proceedings show that he recorded the statements of Tamkin Ahmed being the officer incharge of Tabish Shamim as well as of Syed Muhammad Taqi another superior of Mr. Tabish Shamim, both of whom are named in the charge‑sheet dated 6‑6‑1995 issued to Tabish Shamim.

18. The statements given by the said two superiors of Tabish Shamim during the ex parte domestic enquiry proceedings have gone rebutted due to non participation in the enquiry by Tabish Shamim, lead to the inescapable conclusion that he was guilty of the misconduct as alleged in the show‑cause dated 6‑6‑1995 as held by the Enquiry Officer in his enquiry report because both the said superiors of Tabish Shamim supported and confirmed the facts as alleged in the said charge‑sheet dated 6‑6-1995.

19. As regards the holding of the enquiry ex parte on 14‑6‑1995 the said, Enquiry Officer in the case of Tabish Shamim has not only produced the respondent's letter dated 13‑6‑1995 (informing the applicant Tabish Shamim that his enquiry into the charge‑sheet dated 6‑6‑1995 will be held on 14‑6‑1995) alongwith the acknowledgment slip issued by T.C.S. Courier service showing receipt thereof at Tabish Shamim's address on 13‑9‑1995 but the said Enquiry Officer (Azam Akhtar) also deposed on oath in his affidavit in evidence that Tabish Shamim did appear before him on 14‑6‑1995 at 10‑00 a.m. being the scheduled time of the enquiry as advised by the respondent's said letter dated 13‑6‑1995 but that he i.e. Tabish Shamim refused to participate therein on the false pretext of having obtained a stay order copy of which‑was never produced in Court etc. as deposed in the said affidavit in evidence of Azam Akhtar, the Enquiry Officer.

20. Applicant Tabish Shamim also admitted in his cross‑examination that he had appeared on 14‑6‑1995 before Azam Akhtar the Enquiry Officer regarding charge‑sheet dated 6‑6‑1995. This admission on the part of applicant Tabish Shamim clearly militates against his denial of prior knowledge that his enquiry was fixed on 14‑6‑1995 in the City Office before Azam Akhtar who was the Enquiry Officer regarding charge‑sheet dated 6‑6‑1995 only, issued to Tabish Shamim. If he did not know that his enquiry was fixed on 14‑6‑1995 before Azam Akhtar in the City Office, there was no occasion or need for him to appear before Azam Akhtar the Enquiry Officer on 14‑6‑1995 in the city office. As regards his alternate stand that the enquiry regarding charge‑sheet dated 6‑6‑1995 before Azam Akhtar was fixed on 15‑6‑1995 purported to be taken by him relying on two letters dated 15‑6‑1995 (which were introduced in the above case before this Commission for the first time during the cross‑examination of Azam Akhtar the Enquiry Officer on 17‑12‑1995 when the respondent closed his defence evidence), it may be noted that applicant Tabish Shamim has produced no letter of the management or the Enquiry Officer (Azam Akhtar) that his enquiry regarding charge‑sheet dated 6‑6‑1995 was fixed on 15‑6‑1995 therefore the stand taken by applicant Tabish Shamim in this regard is not believable and rejected.

21. Neither in the applicant's grievance notice, nor in his above application under section 25‑A nor in his affidavit in evidence Tabish Shamim has alleged that either Tamkin Ahmed or Syed Muhammad Taqi who‑gave evidence against him in the ex parte enquiry had any bias or ill‑Will against him and therefore they are deposing against him in the domestic enquiry. Under the circumstances I have no option but to accept their testimony to be believable.

22. Perusal of the enquiry proceedings and the enquiry report alongwith the related documents produced by Azam Akhtar the enquiry officer alongwith his affidavit in evidence in Tabish Shamim's case would prove beyond doubt that his finding/conclusion that Tabish Shamim was guilty of the misconduct as alleged in the show‑causc notice/charge‑sheet dated 6‑6‑1995 stands proved by the statements recorded in domestic enquiry and that he had validly and properly held the enquiry ex parte in the circumstances of the case.

23. In view of the facts discussed above I find no justification at all to hold that by any unfair labour practice or due to any victimisation for trade union activities the applicant has been framed in a concocted inquiry to be removed from service. The misconduct has been proved against Tabish Shamim according to law as detailed above merited and the punishment nothing short of dismissal from service as awarded to him by the respondent and it does not call for my interference from this Court.

24. As regards the issuance of the joint charge‑sheet/show‑cause notice dated 11‑6‑1995 which led to' the dismissal from service of the five applicants including Tabish Shamim. The case of the respondent is that the same was necessitated and was unavoidable because the said Tamkin Ahmed, a superior of the five applicants including Tabish Shamim, had complained that they all gave a surprise visit to his house in the evening of 7‑6‑1995 and‑threatened him that if he did not withdraw the complaint against Tabish Shamim (which led to issuance to him of the said charge‑sheet dated 6‑6‑1995), he i.e. Tamkin Ahmed or any member of his family may come to harm as stated in the said joint charge‑sheet dated 11‑6‑1995.

25. This Commission's said order dated 21‑6‑1995 also holds that mere issuance of the said joint charge‑sheet dated 11‑6‑1995 to the five applicants could not be said to be an act of unfair labour practice or victimisation due to trade union activities of the applicants in view of the seriousness of the complaint against them.

26. Since all five applicants in their respective replies denied the allegations made ~ in the joint charge‑sheet/show‑cause notice dated 11‑6‑1995, a joint domestic enquiry was admittedly held in which all five applicants admittedly C participated and the joint enquiry proceedings in this regard have been signed by all the five applicants besides their common co‑worker assistant Adnan Siddiqui in the domestic enquiry.

27. The Enquiry Officer Khalid Aslam who conducted the joint enquiry against the five applicants also filed his affidavit in evidence alongwith the relevant documents including the record of joint enquiry proceedings held on 15‑6‑1995, 18-6‑1995 and 19‑6‑1995 besides his enquiry report finding the five applicants guilty of the misconduct alleged in the joint charge‑sheet/show cause notice dated 11‑6‑1995 issued to the five applicants. Khalid Aslam has deposed among other things that he conducted the enquiry honestly, fairly and without any influence from the management.

28. Neither in the applicants grievance notices nor in their applications under section 25‑A nor in their affidavits in evidence, the five applicants have alleged that either Tamkin Ahmed or Shamim Javed who gave evidence against the five applicants in the joint domestic enquiry, had any enmity for animosity against them.

29. A perusal of the joint enquiry proceedings and the enquiry report alongwith the relevant documents produced by Khalid Aslam the enquiry officer alongwith his affidavit in evidence would prove beyond doubt that he acted fairly and impartially and that his conclusion/finding that the five applicants were guilty of the misconduct alleged against them in the joint show‑cause notice dated 11‑6‑1995 is well reasoned, sound and valid and based on the statements recorded in the joint enquiry proceedings warranting no interference.

30. In view of the above facts, there is no scope at all for alleging any unfair labour practice or victimization due to trade union activities in the above five cases as the misconduct alleged against them is proved according to law as detailed above and the same merited strong action nothing short of all least dismissal from service as awarded to them by the respondent. It would also be open to them to any other action in the Criminal Court of justice if so advised.

31. It is denied by the respondent that any assurances were given either at the time of or after the signing of the settlement dated 11‑1‑1995 to CBA that any further demands or concessions will be granted or that 'the show‑cause notices issued and the disciplinary proceedings taken against the five applicants were for any mala fide considerations.

32. The affidavit of S.U. Jung on behalf of the respondent and the annexures thereto further prove beyond doubt that there is no scope in the relevant circumstances for the applicants to allege unfair labour practice or victimization due to trade union activities and that all such allegations are by way of afterthoughts, besides being not correct. The cross‑examination of Faisal Pasha in Labour Court No.4 (being Annexure R/7 to S.U. Jung's affidavit) would clearly show that the three office‑bearers out of eight were dismissed earlier for go slow which allegedly was reported to by them as appears from the said cross‑examination of Faisal Pasha.

33. It is pertinent to note that certain allegations against certain officers were made for the first time in the affidavits in evidence of the applicants which appear to be an afterthought. Similarly false allegation of threatening Saeed Ali to leave the union was made for the first time in the latter's cross‑examination but the same has been denied by the said Shamim Javed, Deputy Manager, Employee Relations of the respondent in his affidavit dated 6‑12‑1995.

34. The rulings cited on behalf of the applicants are clearly distinguishable not relevant to the facts of the present cases.

35. It was contended on behalf of the applicants that no copy of complaint was supplied, however as per law no copy of a complaint on which the charge sheet is based is required to be produced according to case reported as PLD 1981 SC 225 at page 234 as well as a DB ruling of the honourable Sindh High‑Court reported as‑ 1987 PLC 23.

36. It was also argued on behalf of the applicants that the list of respondents, witnesses was not provided in domestic enquiry, but as per law supplying list of witnesses to the accused is not a condition precedent, or requirement of law as held in 1983 PLC 143 and 1969 PLC 691.

37. For the proposition that non‑issuance of a second show‑cause notice or supplying a copy of the enquiry report is fatal to the enquiry is not tenable at law as the same is not a requirement of law or is violative or principle of natural justice. A reference may be made to PLD 1981 SC 225 at page

234. Applicants' objection in this regard also stands repelled.

38. The orders of dismissal in the above cases were signed by Mr. War Maria, General Manager, Human Resources. In 1995 PLC 675 which is a ruling of our honourable Supreme Court, the High Court's ruling that the Manager Personnel and Administration was covered by the definition or "employer" was approved and it was further held that neither the approval for dismissal was required to be in writing nor it was necessary that dismissal order must be passed by the employer himself. The applicants' objection in this regard also holds no water. '

39. For the proposition whether a threat given to a superior by a worker outside the factory premises in connection with an occurrence in the factory is covered or not by S.O.15(3)(h) i.e. an act subversive of discipline. The answer to this proposition is in affirmative in the given facts and circumstances of this case. Reliance is placed in case reported as 1980 PLC 972 at page

975. The applicants' contention to the contrary is therefore misconceived and wrong.

40. In the arguments on behalf of the applicants as number of incorrect allegations of fact have been made such as that all five applicants were office‑ bearers whereas applicant at Sr.No.2 was not an office‑bearer. Similarly it is falsely alleged that Syed Wajid Ali Shah was dismissed in August, 1994 whereas he is applicant No.3 above before in this Commission and was dismissed on 22‑6‑1995 alongwith other four applicants. A number of other factually incorrect assertions have been made in the applicants' arguments in respect of the two enquiries and the enquiry reports. In view of the discussion made above it is held that all the above five applicants have been rightly dismissed from service for proven misconducts and the said findings do not deserve to be interfered with. Consequently the orders of dismissal of the five applicants .are maintained and their applications under' section 25‑A of the IRO, 1969 are hereby dismissed. Announced in open Court, this 12th day of May, 1996. H.B.T./271/NIRC Application dismissed.