1995 PLP 27 (PLC)

Ataur Rehman Sheikh for Respondent. Ghazanfar Ali and two others, petitioners, have been served with charge‑sheets dated 30‑3‑1993 and suspension orders of the same date (Annexure R‑1 to Annexure R‑6) for `gross misconduct' within the purview of Standing Order 15 of West Pakistan Industrial and Commercial Employment Ordinance, 1968. The charge‑sheets in question are more or less identical in nature. The charge‑sheets (Annexure R‑1), issued to Ghazanfar Ali, petitioner No.1 reads: "It is alleged against you that on 29th March, 1993 at about 1230 hours you alongwith Idrees A/Steward. of F&B Department at the instance of Mr. Saeed‑ur‑Rehman, Beverage Controller illegally left your place of duty and went round the various departments/sections of the Hotel. You incited the workers against the management and ordered them to stop work. You called upon them to form a procession and go to the office of the General Manager. At your instigation, about 50 workers from various departments/sections of the hotel struck work, left their places of duty and assembled outside the office of General Manager where 'you alongwith others raised provocative slogans against the management and used abusive language against your superiors. Your above actions constitute gross misconduct within the purview of Standing Order 15 of West Pakistan Industrial and Commercial Employment Ordinance, 1968. You are hereby required to submit your explanation to the undersigned within three days of the receipt of this charge‑sheet failing which it will be deemed that you decline to offer any reply."

2. The petitioners claiming President, General Secretary and Joint Secretary respectively of Employees' Union, Pearl Continental Hotel, Peshawar, feeling aggrieved by issuance of charge‑sheets and suspension orders, have challenged the same, by way of filing the present petition under section 22(8)(g) of the IRO, 1969 accompanied by an application for interim relief, asserting that they had been made` victim of (sic) on account of their trade union activities. It was alleged that the petitioners had presented certain demands to the management and as a measure of victimization, disciplinary proceedings were initiated against the petitioners in order to pressurise them to withdraw the demands and prevent the petitioners to continue with their union activities.

3. In the comments, the management repudiated the allegations of the petitioners and challenged jurisdiction of the Commission to interfere in the matter.

4. I have heard Sardar Muhammad Aslam Afridi, Advocate for the petitioners and Mr. Ataur Rehman Sheikh, Advocate for the respondent at some length in the light of the material on the file.

5. The petitioners, who are employees of the respondent Hotel, have been served with charge‑sheets and placed under suspension in consequence thereof, on the charge of committing `gross misconduct'. They were required to submit their explanation within three days of the receipt of tote charge‑sheets. The petitioners fully participated in the domestic inquiry. Resultantly vide inquiry reports (Annexure R‑3 to Annexure R‑5) dated 13‑5‑1993, the petitioners were found guilty of the charges. The disciplinary proceedings against the petitioners are in progress and the management has yet to announce the final order.

6. It is well‑settled that the initiation of disciplinary proceeding is a routine matter of the Industrial and Commercial Establishments and it does not lead to any presumption of unfair labour practice under section 15 of the Ordinance. The employer is duty bound to initiate such proceedings in cases of delinquencies because the maintenance of discipline is sole responsibility of employer. Even if, there is any illegality or irregularity in charge‑sheet, show -cause notice or explanation letter, it does not attra6t the provisions of section 15 of the Ordinance. To hold an‑ enquiry against its employees is the right of the employer which cannot be curbed or taken away, merely because the employee happens to be an office‑bearer of the union. The issuance of charge -sheet to a worker found guilty of misconduct, is the prerogative of the employer and this Commission is not vested with any power to stay disciplinary proceedings against a workman, even if, such workman happens to be the office‑bearer of the union. If an action is taken against a defaulting worker on account of his misconduct or remissness, he cannot take shelter under trade union activities. Issue of charge‑sheet to a worker found guilty of misconduct is a statutory Requirement under Standing Order 15(4) of the West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968. It cannot be dole away with or quashed on even the ground that the charge has been given mala fide and has been issued on account of trade union activities of the worker. Even if it is so issued it would be the final order passed on the charge‑sheet which would be good or bad in law as the case may be, warranting quashment of order or otherwise. Initiation of disciplinary action and consequential proceedings is a right guaranteed of the employer. It cannot be circumvented prematurely by pleading victimization. It is a part of the process prescribed by the law under the Efficiency and Discipline Rules. This being a statutory requirement enjoined upon the employer does not amount to commission of the offence of unfair labour practice. In Sui Gas Transmission Company Limited v. The Islamic Republic of Pakistan and 2 others PLD 1969 SC (Pak.) 66, it was observed "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 employees were given an opportunity to explain the charge." Similarly, in Pakistan Petroleum Workers Federation, Karachi v. Burma 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 Ismatullah Khattak v. Manager, Administration Wyeth Laboratories (Pak.) Limited and others 1989 PLC 447 (National Industrial Relations Commission) and Amir Ali v. Ghulam Farid, Superintending Engineer, Electricity WAPDA, Lahore and another 1988 PLC 884, the Commission observed that in departmental disciplinary proceedings it is not open to this forum to re‑open and repeat the inquiry or to substitute itself for the Inquiry Officer. The similar view was taken in a number of cases reported in 1993 PLC 8, 1990 PLC 662, 1988 PLC 923, 1979 PLC 238. 1969 PLC 439, 1969 PLC 691, 1974 PLC 69, 1975 PLC 24, 1975 PLC 56,1987 PLC 358,1989 PLC 447 and 1987 PLC 547.

7. The question, requiring determination would be, whether the petition filed under section 22A(8)(g) of IRO, 1969, discloses proper cause of action. The basic matter against which the petitioners have approached this forum is the initiation of disciplinary proceedings against them by the Management are correct or not, is a matter to be inquired into and decided under the relevant law by the management itself. And in case the charges are proved against the petitioners and action, thereupon, is taken against them by the management, they can hardly assail the same as constituting unfair labour practice notwithstanding their assertions in that regard.

8. It needs no emphasis that if no action is taken by the management against the workers suspected of committing misconduct, then the said activities will continue unchecked and discipline in the institution will be ruined. In the instant case, as stated above, the petitioners have been issued charge‑sheets purely as a disciplinary measure in respect of act of misconduct committed by the petitioners, and has noting to do with the union activities. Hence no element of unfair labour practice is involved. The employees cannot be allowed to take law into their own hands and do whatever they like, irrespective of the legal consequences, in the rime of unionism. Taking part in trade union activities, as mentioned above, does not give a licence to an employee to commit a misconduct. In fact, if any action is taken against the petitioners they can challenge the same under section 25‑A of the IRO, 1969 which is an adequate and self‑sufficient remedy. If the holding of inquiry is treated as an act of unfair labour practice then no disciplinary proceedings can be taken against any employee and there will be indiscipline in all the organisations as the management's right to hold inquiry shall be held to be an act of unfair labour practice. If the employees commit any misconduct they are liable to be charge‑sheeted and proceeded against. This Commission is not vested with any power to intervene. The jurisdiction of this Commission is confined to cases falling under section 15 of the Ordinance and nothing beyond that. It implies that in case of victimization for any reason other than trade union activities, this Commission will have no jurisdiction, PLD 1988 SC 53.

9. For reasons detailed above, the petition fails which is hereby dismissed. The stay order dated 11‑4‑1993 is recalled. H.B.T./219/N.I.R.C Petition dismissed.