2011 PLP 219 (PLC)

GHULAM NABI DEESHAK (MEMBER).

This order shall dispose of stay application under Regulation 32(2) of the NIRC (Procedure and Functions) Regulations, 1973 filed by above named petitioner along with a petition under section 25(8)(g) read with section 17(1)(c & d) of the IRA 2008. The brief facts of the case are that the petitioner had joined service in United Bank Limited as NCS on 3-2-1987, thereafter he was promoted as Assistant and as OG-III on the basis of honest, efficiency and extra ordinary performance. The duty of petitioner has manual, clerical and technical in nature. He is still performing the same job which falls within the definition of workman under the provision of IRA 2008. The petitioner being not only active member of the union but also took part in the formation and promotion of trade union activities in spite of repeated threats of the respondent about removal from service. On 25-2-2010 a hopelessly time-barred charge-sheet was issued to him by the respondent containing false and baseless allegations which do not constitute misconduct and the same was denied by him in his reply dated 12-3-2010. But the respondent is bent upon to remove him from service on account of trade union activities on false charge-sheet. He prayed that impugned charge-sheet dated 25-2-2010 may be suspended and respondent be restrained from passing in the order of removal from service.

2. The instant petition was procured of this Bench by learned counsel Mr. Abdul Hafeez Amjad on 24-6-2010 which was accompanied by stay application supported by an affidavit. After preliminary hearing the petition was admitted, status quo was granted and notice was issued to the respondent for filing written statement on main petition and reply to stay application. The respondent filed parawise comments with preliminary legal objections challenged the jurisdiction of NIRC and maintainability of the main petition and also denied the allegations levelled in this petition against it.

3. Arguments heard of the learned Advocate for the parties Mr. Abdul Hafeez Amjid, learned Advocate for the petitioner has argued that the petitioner is by designation as OG-III but he is performing duty of manual, clerical and technical in nature and he has no power of hire and fire. The duties still he is performing falls within the definition of workman and this Commission has jurisdiction to entertain this petition. He further argued that the petitioner is not only active member of the union but he is founder of the trade union. The respondent does not like the trade union activities in its establishment and issued him several threats and asked him to withdraw trade union activities but on his refusal the respondent issue hopelessly time-barred charge-sheet on 25-2-2010 containing false and baseless allegation which was denied by him through reply dated 12-3-2010. He further contended that on 24-6-2010 when the petition filed and this Commission was pleased to pass prohibitory order and directed the respondent not to pass adverse order respect of the service of the petitioner. The parawise comments submitted by the respondent wherein inter alia alleging the termination of the petitioner, prior to the passing of the prohibitory order by this bench of the Commission. Letter of termination was dispatched to the petitioner before receipt of prohibitory order as on 18-6-2010. The two receipts enclosed with parawise comments which shows that it is one and the same. The date mentioned on the receipt is 28-6-2010 meaning thereby that whatever contained in the envelope were dispatched on 28-6-2010 and not on 18-6-2010. Apart from the above even otherwise the petitioner has been visiting his office regularly upto 28-6-2010 and marked present in the attendance register. He also contended that the respondent has deliberately, intentionally and with mala fide intention provided false information to this bench of Commission to avoid compliance of the order passed by this Court.

4. On the other side Mr. Faisal Mahmood Ghani, learned Advocate for the respondent argued that the petitioner already stood terminated on 18-6-2010. The petition with stay application was filed on 24-6-2010 and stay order was served upon the respondent on 29-6-2010, on that date the petitioner had already been terminated. In terms of Regulation 32(2)(c) of the NIRC (Procedure and Functions) Regulations, 1973, the Commission has been vested with powers to restrain or prohibit any acts likely to be committed and not suspend any acts which have already been committed even the petition, stay application and prayer of the petitioner being prohibitory in nature have become infructuous. He further argued that the petitioner was a OG-III performing managerial nature of duties and not was a workman under the provision of IRA 2008 and Industrial and Commercial Employment (Standing Orders) Ordinance 1968. The petitioner had also worked as Manager at UBL Pind Dadan Khan and Choa Saidien Shah branches from 10-7-2005 to 14-11-2005 and 27-5-2006 to 11-2-2007 respectively. He was also holder of power of Attorney, who is held to be non-workman. He also contended that the petitioner has filed interpolated and manipulated documents before this Commission to justify ex-parte stay order even to the extent of making false statement. He further contended that the petitioner has attached copy of certificate which has shown him as Chairman of UBL Progressive Employees Union but there is no such trade union exists in the establishment of UBL. He contended that the petition is not maintainable in law as none of the ingredients of unfair labour practice has been committed by the respondent. He prayed for dismissal of stay application. He also relied upon the following authorities in support of his arguments:-- PLD 1988 SC 53-56, 2004 SCMR 28, 2005 PLC 357, 2007 PLC 181 I have heard and considered the arguments advanced by both the learned Advocates and have gone through the petition under section 25(8)(g) read with section 17(1)(c) of the IRA 2008 along with stay application supported an affidavit by the petitioner reply statement with legal objections and other documents available on record.

6. It is submitted that the petitioner was a OG-III and worked as Manager of UBL Pind Dadan Khan and Choa Saiden Shah about more than one year and he was also holder of Power Attorney which has not been denied by petitioner by filing rejoinder, it presumed that the petitioner was performing managerial nature of duties as an officer. The petitioner attached photocopy of membership form for being member of UBL Progressive Employee Union Punjab-Sarhad and Islamabad which does not contain the date, it cannot be understood when he became member of that union. Secondly the petitioner has also attached minutes of meeting of executive body of the union which shows that the petitioner was elected unopposed as Chairman of the said union which does not contain the names and signatures of office-bearers of the union who attended the meeting as envisage in rule 12(2)(e)(iii) of the NIRC (Procedure & Functions) Regulations, 1973 which creates grave doubts over the said documents, moreover the registration of the said union had been cancelled by the Full Bench of this Commission vide order dated 26-7-2005 which is reported 2007 PLC 181.

7. It is pertinent to mention here that only bald and vague allegations have been made and no specific instance of unfair labour practice has been mentioned in the petition. The petitioner has alleged that he has been issued charge sheet by the respondent due to his trade union, but no such detail of union activities which cause annoyance to the respondent has been specified.

8. In view of above facts and circumstances I am of the considered view that the petitioner has not been able to make out prima facie case for grant of interim relief. For the above said reason I dismiss the stay application filed by the petitioner and recall/vacate the interim prohibitory order dated 24-6-2010 passed by this Bench of Commission in favour of the petitioner. To come up on 19-3-2011 for filing of affidavit in evidence by the petitioner in main petition 4A(32);2010. H.B.T./12/NIRC Stay vacated.