2006 PLP 357 (PLC)

RAJA ABDULLAH KHAN (MEMBER).

The petitioner has filed this petition against the respondents with the following prayer: "That this petition may be accepted and the respondents may be directed not to dismiss, discharge, terminate him from service or otherwise pass any adverse orders. It is further'prayed that the respondents may be directed not to take any disciplinary action on the basis of statement of allegations and the order of inquiry dated 11-6-2002 and they may further be directed not to commit any unfair labour practice as defined under section 15 of the I.R.O., Any other relief which this Honourable Court deems fit may be awarded to the petitioner"

2. The facts in brief giving rise to this petition are that the petitioner joined the respondents department as Porter in the year, 1970. He was promoted as Sorter in the year, 1974 and since then he is performing his duties as Sorter. It is alleged that the petitioner is not a civil servant and is a worker as defined under the Workman Compensation Act. It is also alleged that during the whole service the petitioner performed his duties upto the satisfaction of his superiors, has an excellent record at his credit and no charge-sheet was ever served upon him regarding his performance. It is alleged that there is a registered trade union namely All Pakistan RMS Employees Union in the respondent-Department which is registered with the N.I.R.C. having its registration No.5/1974. It is alleged that the said union is also a CBA in the Establishment. It is alleged that the petitioner is an active trade unionist and he has remained office-bearer at the national level since 1980. It is alleged that the last election of the union was held on 28-3-2000 and intimation of the result was also communicated to the respondents. It is also alleged that the petitioner contested the election for the post of General Secretary and won the same on 28-3-2000. It is alleged that the result of the election, was also submitted to the learned Chairman/RITU who gave approval vide letter dated 13-1-2001 i.e. after one year of the election. It is alleged that after the election the petitioner union requested the respondents for arranging meeting with the office-bearers of the union but the respondents declined the request on the ground that without approval they will not entertain them as office-bearers of the union. It is alleged that after receipt of the approval the Work Council was constituted on 15-2-2001 and subsequently the petitioner as General Secretary of the Union and Member of Work Council served the respondents with demand notice on 10-3-2001 as required under section 26 of the I.R.O. but no meeting has been convened by the respondents in this behalf. It is alleged that the petitioner in his capacity as General Secretary of the union has written so many letters to the respondents for negotiating the demand notice. It is alleged that the petitioner is also a Member of Work Council at Punjab Level and only one meeting was given by the then Postmaster General, Islamabad but no meeting was convened by the respondents for the Central Work Council for negotiating on the demand notice. It is alleged that the conduct of the respondents shows that they are not recognizing the office-bearers of the union and they are creating hurdles in the way of the healthy trade union activities. The-previous General Secretary Mr. Tahir Rashid was dismissed from service by the respondents during his tenure and thereafter his dismissal was converted as compulsory retirement. It is alleged that after the service of demand notice upon the respondents, the petitioner was served with statement of allegations on 11-6-2002 without any show-cause notice along with the order of inquiry signed by the respondent No.1 vide letter dated 11-6-2002 and it has been alleged in the statement of allegations as under:- (a) That while posted as Sorter DMO Rawalpindi he addressed a number of letters direct to the President of Pakistan by name knowing that he was a Government Servant and was liable to submit his grievances through proper channel. He also endorsed copy of his letters to unconcerned authorities in connection with referendum. (b) That he misused the status of General Secretary RMS Employees Union CBA Rabita Office, Rawalpindi DMO despite the fact that he ceased to hold the office of the Union as General Secretary w.e.f. 28-3-2002 as he was elected as General Secretary on 28-3-2000 for a term of two years. (c) Violated rules 19 and 24 of Government Servants (Conduct) Rules, 1994. (d) Addressing the President of Pakistan unnecessarily in connection with General Referendum as a Civil Servant ignoring the rules which tantamounts to inefficiency and misconduct.

3. It is alleged that simultaneously Mr. Aftab Rashid, Divisional Superintendent Postal Services (Rural) Rawalpindi was appointed as Inquiry Officer under the Removal from Service (Special Powers) Ordinance, 2000 and the respondents directed the Inquiry Officer to conduct the inquiry and submit the inquiry report to respondent No.2 within 25 days. It is alleged that this action against the petitioner has not been initiated by the respondent No.1 on his own but the respondent No.2 has directed the respondent No.1 to initiate the disciplinary action against the petitioner and he also directed the respondent No.1 to intimate the action vide his letter dated 7-5-2002. It is alleged that the petitioner has not committed any sort of misconduct. It is alleged that the respondent has initiated the action against the petitioner when he asked the respondent for negotiating with him upon the demand, notice dated 10-3-2001 which was served by him upon them and subsequently the petitioner is not being recognized by the respondents as office-bearer of the Union on the false pretext that the tenure of the office of the General Secretary has expired. It is alleged that the respondents are therefore committing unfair labour practice against the petitioner which is not permissible under section 15 of the I.R.O. It is alleged that the petitioner has already submitted his reply to the charge-sheet/statement of allegations and have stated the position that he has not acted in violation of the Government Servant (Conduct) Rules, 1964. It is alleged that the petitioner in his capacity as General Secretary of the Union along with the other office-bearers of the Union addressed the employees of RMS and subsequently a resolution was carried out that the General Secretary may apprise the situation to the Chief Executive by writing a letter. It is alleged that as a consequence of resolution, the petitioner in his legal and constitutional obligation wrote a letter. However an advance copy has been submitted to the Chief Executive and has gone through the proper channel, by addressing the said letter to his immediate boss and other relevant authorities. It is alleged that the petitioner has not violated any rules. As far as the tenure of the General Secretary is concerned, the petitioner alleged that he can act as General Secretary of the Union till the new elections. The petitioner alleged that he has issued a circular ' dated 17-5-2002 to all the office-bearers of the Union and to Work Councils for the purpose of holding elections and they were asked to submit the new voter list within 30 days hence according to petitioner the holding of elections is under process. It is alleged that the petitioner has not participated in any political activities but only obeyed the orders of the Chief Executive by supporting him in referendum. It is alleged that the petitioner apprehends that the respondents are mentally against the petitioner due to his trade union activities and may dismiss, terminate or discharge him from service due to his trade union activities which constitutes unfair labour practice as they have already issued the statement of allegations without any show-cause notice due to his trade union activities and if not restrained they may pass any adverse order against the petitioner. Hence he filed this petition along with stay application under Regulation 32(2) of N.I.R.C. (P&F) Regulations, 1973.

4. The respondents filed written statement as well as reply to the stay application. The respondent took preliminary objections that the petition was not maintainable as the petitioner has no cause of grievance and the petition is based on presumptions and concealment of facts. They have contended that the petitioner has no locus standi to file this petition because he ceases to be the General Secretary of the Union with effect from 28-3-2002 after the expiry of two years of election which was held on 28-3-2000. They have contended that the petitioner has misused the status of General Secretary and addressed letter to the President of Pakistan by name in connection with Presidential Referendum in May, 2002. They have contended that according to clause 3 of the Constitution of the Union the petitioner being General Secretary was not entitled to criticize anyone taking shelter of presidential referendum just to put the pressure on the management with baseless blame of its support to the defeated persons. They have also contended that the petitioner has violated section 4 of the I.R.O., 1969 and hence the instant petition is not based on facts which is liable to be dismissed. The respondents have however, admitted that the petitioner joined service in 1970 as porter and was promoted Sorter in 1974. The respondents have contended that the petitioner is a Civil Servant because he draws salary and allowances from regular budget of the Federal Government. They have contended that the case of the petitioner was reviewed and he was found to be below average/average/good and not excellent and he was issued a show-cause notice for his retirement on completion of 25 years. They have contended that the statement of petitioner that he has excellent record of service is not correct. They have contended that the disciplinary action is taken against the officials who are corrupt, inefficient or commit misconduct. They have contended that there is a trade union namely All Pakistan RMS Employees Union which is registered with this Commission having Registration No.5/1974. They have also admitted that this Union is CBA in the Establishment. They have contended that in 1992 the petitioner penal was defeated in the union election. They have admitted that the petitioner won the union election in 2000 as General Secretary. They have contended that this position was for two years which expired on 27-3-2002 and thereafter the petitioner ceased to be the General Secretary. They have admitted that the petitioner union has submitted the demand notice and meeting was arranged on 20-9-2001. The respondents have denied the contention of the petitioner t--Rashid was dismissed due to his trade union activities contended that he was dismissed due to disciplinary subsequently this dismissal was converted into compulsory retirement. They have however, admitted that the service dispensed with when he was General Secret admitted the appointment of inquiry of against the petitioner on the basis of charge-sheet issued to him of enquiring into the charges as indicated in para 2 at page3 of this order. They have contended that as the petitioner has misconducted himself and inquiry has been initiated against him due. to misconduct, the petition may be dismissed and the respondents may be allowed to pass an order in disciplinary proceedings on the receipt of the inquiry report and after completion of the prescribed procedure and formalities as they have not committed any unfair labour practice against the petitioner.

5. It may be pointed out that the stay application of the petitioner was accepted on 16-12-2003 by my learned predecessor.

6. Parties have adduced oral as well as documentary evidence in support of their respective contentions. I have heard the Advocate for the parties and examined the record carefully.

7. The petitioner has examined himself by filing affidavit Exbt.P/1. He has produced documents in support of his case as Exh.P/1 to P.15 which fully corroborate his case. The respondents have examined Mr. Altaf Hussain Qamar, Divisional Superintendent in support of their case. The affidavit of D.W. Altai Hussain Qamar, Divisional Superintendent is Exh. R.W.1. He has produced documents in support of his version as Exh.RW.1/K to R.W.1/J. The petitioner has fully supported his case in his affidavit that he is being victimized by the respondent due to his trade union activities. He has deposed that the statement of allegations has been issued to him after he served notice of demand on the respondents in his capacity as General Secretary of the Union. He has been cross-examined by the Advocate for the respondent but his evidence has not been sheltered in the cross-examination in any way. He has deposed that he is a unionist and was elected as General Secretary in the year, 2000 and continues to be so even after expiry of the tenure of two years because no new elections have been held so far. He has deposed that he has not misconducted himself and he has addressed the letter to the President of Pakistan in connection with the Referendum in his capacity as General Secretary of the Union which is CBA. He has deposed that he has been exonerated in the inquiry conducted by the respondent on the basis of the statement of allegations. The version of the petitioner that he has been exonerated in the inquiry by the Inquiry Officer Mr. Zaheer Baig is fully supported by the witness of the respondent in his cross-examination as this witness of the respondent Mr. Altaf Hussain has admitted in the cross-examination that Mr. Zaheer Baig was appointed as Inquiry Officer against the petitioner to enquire into charge-sheet dated 8-2-2003 and he has exonerated the petitioner from the charges. A copy of this report is on record as Exh.RW.1/F. This witness of respondent has also admitted that after the inquiry report of Mr. Zaheer Baig in which the petitioner has been exonerated of the charges no further show-cause notice has been served upon the petitioner. This witness of the respondents has stated voluntarily in his cross-examination that no further show-cause notice has been issued because of the stay granted by this Court. But this version of the witness is not tenable. When the Inquiry Officer who is officer of the respondent-Department has exonerated the petitioner of the charges levelled against him, there is no other ground for the respondent but to close the chapter of the allegations and drop the proceedings and not to issue any further show cause to petitioner in respect of these charges. The contentions of the respondents that the petitioner is not General Secretary of the Union because his term expired in 27-3-2002 is also not tenable. The petitioner continues to be the General Secretary of the Union which is CBA 'because admittedly no fresh elections have been held so far. It appears from the record that the respondent-Department is deadly against the trade union activities of All Pakistan RMS Employees Union as alleged by the petitioner in his petition and evidence because it has come on record that even the previous General Secretary Tahir Rashid was dismissed by the respondent when he was General Secretary of the Union and subsequently, his dismissal was converted into compulsory retirement as admitted by the witness of respondent. The petitioner is a workman being Sorter and is General Secretary of the Union which is registered with the N.I.R.C., It is not open for the respondent to disown him as General Secretary of the said Union till next elections are held and the petitioner is not successful in the election. The record shows that the petitioner has not violated any rules of conduct by addressing a letter to the President of Pakistan regarding the Presidential Referendum but he has done so in his capacity as General Secretary of the Union. He has already been exonerated of all these charges by the Officer of the respondents-Department Mr. Zaheer Baig who has held the inquiry as asserted by the petitioner and admitted by the respondents witness. This witness of respondent Mr. Alfat Hussain Qamar is not signatory of any charge-sheet or notice to the petitioner, yet he has been examined by the respondent in their defence. The respondents should have examined those officers in support of their case who issued the charge-sheet or dealt with the case of the petitioner but they have not done so far obvious reasons. Since the petitioner has already been exonerated by the Inquiry Officer of the charges as discussed above, hence I am clear in my mind to hold that the respondents are committing unfair labour practice as alleged by the petitioner and they cannot be allowed to do so as I.R.O., 2002 is applicable in this case till the union, exists as Registered Union as held in PLJ 1975 Karachi page 407.

8. For the above reasons I accept the petition and direct the respondents not to dismiss, discharge or terminate the petitioner from service or otherwise pass any adverse order against him on the basis of this charge-sheet. These statement of allegations have not been proved by the respondents in the inquiry conducted by their own officer Mr. Zaheer Baig as admitted by the witness of the respondents. Respondents are further directed not to take any disciplinary action on the basis of these statement of allegations and the, order of the inquiry dated 11-6-2002. They are further directed not to commit any unfair labour practice as defined under the I.R.O. 2002. M.H./149/N.I.R.C. Petition allowed