2006 PLP 203 (PLC)

SYED AKHTAR NAQI NAQVI (MEMBER).

The facts which led to the institution of this appeal before this Full Bench of the N.I.R.C. as precisely narrated are that the appellants filed a grievance petition under section 22-A (8)(g) of the I.R.O, 1969 against the respondents contending therein that they are the employees of the Pakistan Railways working in the capacity of Mauwan land on ad hoc basis but they have been working without any break in their service and also without any complaint regarding their work and conduct. That it was decided by the Railway Headquarters vide policy letter dated 28-8-2004 that services of all such workers working on ad hoc basis be .regularized as permanent. The appellants alleged that the respondent now want to dispense with the services of the appellants and they wanted to appoint their favourite A persons on account of unfair labour practice as the appellants were members of Prem Union CBA Lahore Division and they are the active members of the union and on this ground the respondent No.2 wants to victimize and discriminate the appellants although the appellants requested not to terminate them by committing act of unfair labour practice but he is bent upon doing it hence this grievance petition. Along with the main grievance petition the appellants also filed an application under Regulation 32 (2) of the N.I.R.C. (P&F) Regulations, 1973, for a temporary relief of restraining the respondents from committing the aforesaid unfair labour practice.

2. The respondents contested the main grievance petition as well as the stay application inter alia on the grounds that the appellants were engaged as Mauwan against the short term vacancies and on expiry of each term they were dis-engaged and re-engaged whenever short vacancies accrued and their services have therefore, again been terminated there being no vacancies and that in 1998 the appellants had challenged their termination from service on the basis of unfair labour practice but their petition was dismissed on the ground of lack of jurisdiction vide order Annex-A. It was also contended that permanent posts of Mauwan sanctioned for AIOW/Sui Gas were of limited strength and excess posts could not be regularized and service of the appellants had been terminated on the directive of the competent authority. They also denied of the appellants' being active members of the PREM Union. After hearing the learned counsel for the parties, the learned Single Bench was pleased to dismiss the application for temporary injunction as well as the grievance petition which has been assailed by means of this appeal. We have heard the arguments addressed at the bar and have perused the record.

3. We have given our anxious considerations to the fact that while disposing of an application for temporary relief the main grievance petition has been disposed off although there were certain matters to be looked into on merits. Right or wrong, the appellants are alleged that they are active members of a trade union having the status of CBA and take part in its activities and the learned Single Bench has observed that prima facie no discrimination is indicated from the notification dated 15-6-1999, which hit the services of the appellants and therefore, the question of unfair labour practice or victimization due to so-called trade C union activities of the petitioners did not arise. We are absolutely not in agreement with such kind of approach. If a litigant has asserted something and it is being denied and on the basis of such assertion if a right is created in his favour, the judicial approach demands that litigant to prove that allegation by way of concrete evidence. No such opportunity was awarded to the appellants in this case and simply on the basis of one idea that the appellants were appointed in the year 1992 hence they could not get benefit of a notification which was issued in 1990. A perusal of record would show that two of the appellants named Abbas Ali and M. Arshad were appointed prior to that and they could get benefit of the notification in question but they could do so only if they had proved that allegation. The learned Single Bench has presumed the correctness of the respondents contention without letting them prove the same. If there is an allegation of unfair labour practice and if the appellants were given a chance to establish their allegation only then it could be held whether the respondents committed with unfair labour practice or not. We are therefore, unable to sustain such type of verdict. So far as the application for temporary injunction is concerned, the appellants stand terminated and therefore, no purpose shall be served by issuing an order of temporary nature in a mandatory form and therefore, we agree with the finding of the learned Member regarding the dismissal of application for temporary injunction. 7. (sic) The upshot of the above discussion is that this appeal is partly accepted to the extent of dismissal of the main grievance petition, order under appeal is set aside and the matter is remanded back to the learned Single Bench for its decision on merits in accordance with the aforesaid instructions. File of this appeal be consigned to record. The file of the Single Bench shall be restored to its original position. H.B.T./122/N.I.R.C.??????????????????????????????????????????????????????????????? Appeal partly accepted.