' This petition under section 22-A(8)(g) of I.R.O., 1969 alongwith an application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973, was filed by Munawar Hussain, Plate Maker, Al-Umar Printing Press Islamabad against Zahid Malik, Editorin-Chief, Pakistan Observer, Ali Akhbar House, G-8 Markaz Islamabad and two others on 13-8-1998 before this Commission.
2. Briefly stated, the case of the petitioner as set out in the petition is as follows:--
(I) that the petitioner was appointed as Plate-Maker, in the Al-Umar Printing Press vide order dated 1-1-1990 by the respondent No,1, who is the owner of the said Printing-Press and also Editor-in-Chief of Daily Pakistan Observer. It is further submitted that another Daily-Newspaper namely Al-Akhbar is also being printed in the aforesaid Printing Press. It is further submitted that Manager Personnel of Pakistan Observer vide Officer Order No,CHO.5/206/92-IBA(Admn)/dated 1-6-1992 has confirmed, appointment of the petitioner in Al-Umar Printing Press. The petitioner was also issued a Press Card No,595 by the respondent No,1 in his capacity as Chief Editor Pakistan Observer.
(II) that there is a trade union of workmen namely Pakistan Observer-Al-Akhbar Employees Union (which is also CBA) functioning in the respondents establishment including the aforesaid Printing Press. The petitioner is an active member of the said union and due to his active participation in the trade union activities, the respondents are annoyed with him. It is further submitted that there are two Plate Makers namely the petitioner and the respondent No,3, employed in the aforesaid Printing Press and the respondent No,3 is against formation of the petitioner's Union and acts as informer of the respondents against the petitioner's union. In order to victimize the petitioner, the respondent No,3 was granted leave on 5-7-1998 and 11-7-1998 to 13-7-1998 and the petitioner was directed to attend night-shift duty in his place without payment of any overtime allowance or day- off in lieu of overtime allowance. The petitioner also performed extra duty on 14-7-1998 and submitted overtime card to the respondent but when no reply was received by the petitioner, he submitted an application to the Press Manager that he will avail leave on 27-7-1998 in lieu of overtime allowance. It is further submitted that on 27-7-1998 the petitioner fell seriously ill and went to his native village, however before going to his village he informed the Press Manager through one Naveed Machine Helper, who informed the respondent No,2. It is further submitted that at his native village, the petitioner got medical treatment from a doctor, who recommended the petitioner five days rest for treatment w,e,f, 28-7-1998 to 1-8-1998. On his return, the petitioner submitted an application to the respondent No,2 with regard to his medical leave supported by a Medical Certificate. On receiving the leave application, the respondent No,2 called the petitioner in his office and advised that he should quit his trade union activities, otherwise the management has got an opportunity to dispense with the services of the petitioner, but when the petitioner refused to do so, the respondents told the petitioner to go back and wait. It is further submitted that on 4th August and 5th August, 1998, the petitioner appeared for duty but he was not allowed to perform his duties, however the respondent No,2 advised the petitioner that since his services had been terminated, therefore he may see the respondent No,
1. The petitioner therefore met the respondent No,1 who again advised the petitioner to disassociate himself from the trade union and should not take part in the trade union activities, but when the petitioner again refused to do so, he was informed by the respondent No,1 that his services have been terminated w,e,f, 30-7-1998 vide termination letter dated 30-7-1998.
(IV) that the allegations, alleged in the aforesaid termination letter dated 30-7-1998 are baseless and services of the petitioner have been terminated only due to his trade union activities, which is unfair labour practice within the meaning of section 15 of I.R.O., 1969. It is further submitted that the petitioner has more than eight years service therefore his services cannot be terminated without proper issuance of show-cause notice/charge sheet/enquiry etc.
(V) it is prayed that the respondents be directed not to commit acts of unfair labour practice against the petitioner and the impugned order dated 30-7-1988 be setaside.
3. The petition alongwith the application for interim rcliet was placed before the then learned Member Mr. Abdul Rashid Khan on 13-8-1998, when after hearing Representative of. The petitioner, copy of the petition and stay application was ordered to be sent to the respondents for filing their parawise comments and reply to the stay application, but the respondents failed to file the requisite comments/reply, therefore on 14-9-1998, the then learned Member Mr. Abdul Rashid Khan suspended the impugned termination order dated 307-1998 and directed the respondents to allow the petitioner to join his duties till further orders.
4. The respondents while filing their written statement to the main petition and reply to the stay application on 14-11-1999 have resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding jurisdiction of the Commission and maintainability of the petition. They have also contended that the petitioner is basically an employee of Al-Umar Printing Press, but the petitioner has not impleaded the said Press as a party. It is further contended that the petitioner had not disclosed any trade union activity which prima facie makes out a case of unfair labour practice to invoke provisions of section 15 of the I.R.O., 1969. On merits the respondents also controverted all allegations made by the petitioner as false and baseless, therefore the petition being not within the scope of Regulations 32(2) of the N.I.R.C. (Procedure and Functions)
Regulations, 1973 merits dismissal. They have also contended that no right guaranteed and secured to the petitioner has been violated, therefore the petitioner has no locus standi to file the present petition.
5. The case was fixed for arguments on 3-3-1999. After hearing arguments of both the parties, the then learned Member Mr. Abdul Rashid Khan on 6-3-1999 dismissed the petition with the following observations:-- "I have heard the arguments of both the counsel for the parties and perused the record available on the file. Mr. Zakaullah Khan Deputy Registrar was appointed as Inquiry Officer who reported that he visited the office of Observer newspaper and checked the record and found that the name of the petitioner included in the attendance register and he has been taken on duty in night shift. He further submitted that the salary of the petitioner is delayed due to financial problems and the salaries of other employees are also paid after 3/4 months. Letter dated 1-6-1992 placed on record shows that the petitioner was employed in Al-Umar Printers where exists no union. The Union is registered for the employees of Pakistan Observer and AlAkhbar and it does not include the employees of Al-Umar Printing Press. Leaving aside the merits of the case I am of the view that since there is no union in Al-Umar Printing Press, therefore, no case of unfair labour practice is proved. The petitioner has failed to make out a prima facie case in his favour and all the other necessary ingredients for issuance of interim injunction also do not lean in his favour.
Consequently, I dismiss the stay application and recall stay order dated 14-9-1998. The main petition is also dismissed being not maintainable.
6. Agitating against the aforesaid order, an Appeal No,12(55)/94 was filed by the petitioner before the Full Bench of this Commission, which was accepted vide order dated 15-5-2000 with the following directions:-- "We feel that without recording the evidence of both the parties, the petition should not have been dismissed. The impugned order is setaside, the appeal is accepted. The case is assigned to Mr. Abdul Sattar, Khan, learned Member for recording of the evidence of the parties and for disposal in accordance with law.
7. In terms of the aforesaid order dated 15-5-2000 of the Honourable Full Bench, both the parties adduced their evidence. On behalf of the petitioner two witnesses namely the petitioner and Mian Muhammad Sami have filed their affidavits-in-evidence and they were cross examined by the learned counsel for the respondents No,1 & 2 while on behalf of the respondents No,1 and 2, four witnesses namely the respondent No,1 Zahid Malik (Editor-in-Chief. Pakistan Observer) Muhammad Safdar (General Manager Pakistan Observer) Raja Muhammad Afzal (Personnel Manager Pakistan Observer) and Muhammad Saleem Khan (Accounts Officer Pakistan Observer) have filed their affidavits-in-evidence and all of them were cross examined by the learned counsel for the petitioner. The Inquiry Officer Mr. Zakaullah Khan Khalil Deputy Registrar of this Commission and Muhammad Iqbal, Labour Inspector of the officer of Registrar Trade Unions Islamabad were also examined by the learned counsel for both the parties. It may be submitted that despite of notices to the respondent No,3, he failed to join the proceedings and therefore he was proceeded exparte.
8. In their affidavits-in-evidence, the petitioner and his witnesses Mian Muhammad Sami have reproduced the contents of the petition and asserted that the contents of the petition and stay application be read as an integral part of their affidavits, In his cross-examination, the petitioner stated that:-- ' ....I was terminated on 30-7-1998. The termination letter was issued by Personnel Manager namely Liaquat Ali. The reasons for my termination is leave without permission and disturbance in the work.
I am member of Pakistan Observer Al-Akhbar Employees Union which is CBA. It is incorrect that there is no union in the Pakistan Observer and Al-Akhbar. I worked with Zahid Malik as Plate Maker till my termination. I took part in the Union meetings and an active trade unionist. In his cross- examination Mian Muhammad Sami (petitioner witness) has stated that "the petitioner is the member of his union and he was employed by. Zahid Malik the respondent No,
1. The petitioner was working in Al-Umar Printing Press which is part and parcel of Pakistan Observer. The petitioner served the entire period of service with Al-Umar Printing Press. The petitioner was terminated, as night duty was assigned to him and he fell ill. He submitted Medical Report which was not accepted and his service was terminated.".
9. On the other hand in their affidavits-in-evidence, the respondents witnesses namely Zahid Malik, Muhammad Safdar, Raja Muhammad Afzal and Muhammad Saleem Khan have denied the allegations of the petitioner and contended that the petitioner was an employee of Hurmat Publications (Pvt.) Ltd., which is the owner of Al-Umar Printers. The appointment letter issued to him on January 1,1990, is a testimony to the fact that throughout his stay he was an employee of Al- Umar Printers and not of Pakistan Observer. He was given salary as an employee of the Press. It is further deposed that Messrs Hurmat Publications (Pvt.) Ltd, is a separate entity altogether. However, as Capital Publications (Pvt.) Ltd, owner of the Pakistan Observer operates in the same building and Chief Executive of both Companies is one person i,e, Zahid Malik, therefore sometimes inadvertently the things get mixed-up and due to negligence or lapse of the clerical staff, discrepancies occurs inadvertently. The same happended in the case of the petitioner who was issued termination letter on the letter-head of the Pakistan Observer. It is next contended that there is no workers union in the Hurmat Publications (Pvt.) Ltd whatsoever, therefore the instant petition is not maintainable.
10. In his cross-examination the respondent No,1 Zahid Malik has stated that:-- "It is incorrect that the petitioner is active member of a union. It is incorrect that I dislike union activities in the establishment. It is incorrect that Liaquat Ali the then Personnel Manager, under my direction persuaded the petitioner to quit trade union activities, as no union exists in our establishment, therefore the question of persuading the petitioner to quit the trade union activities does not arise. It is incorrect to suggest that services of the petitioner were terminated merely on the basis of his trade union activities."
11. In his cross-examination, Raja Muhammad Afzal (Respondent witness) has stated:-- "It is correct that show cause, charge-sheet and inquiry report is available in their record. It is correct that Pakistan Observer, Al-Akhbar and Hurmat are published from Al-Umar Printers. It is correct that Zahid Malik is proprietor and Editor-in-Chief of all the three publications".
12. In his cross-examination Muhammad Saleem Khan, Accounts Officer (Respondent witness) has stated:-- "I deal the accounts of Pakistan Observer, Al-Umar Ptinters and Hurmat Publications. Al-Akhbar remained in our establishment till August, 1996. It is correct that Zahid Malik is Editor-inChief and owner of Al-Umar Printers and Hurmat Publications. There is Board of Directors under him. There is no union in our establishment. 1 am not in the knowledge that Pakistan Observer Al-Akhbar Employees Union is registered and is CBA in our establishment. I cannot affirm or rebut the suggestion that there is union namely Pakistan Observer Al-Akhbar Employees Union. I have no knowledge of any trade union activities of petitioner, as there is no trade union in our establishment.
13. In his cross-examination Muhammad Safdar (the respondent witness) has stated:- "Malik Zahid is proprietor of Al-Umar Printing Press. There is no relationship whatsoever between Mr. Ghulam Akbar and Zahid Malik. Hurmat is a private limited company and running business in the name of Al-Umar Printing Press. I was an employee of Pakistan Observer and not of Hurmat (Pvt.)
Ltd.
14. In his cross-examination Mr. Muhammad Iqbal, Labour Inspector of the office of RTU Islamabad has stated that "Al-Umar Printer is not registered with us as trade union".
15. Arguments were heard. Learned counsel for the petitioner has reiterated the petitioner stand taken in his petition. While justifying filing of the instant petition under section 22(8)(g) of I.R.O, 1969 before the Commission, on the ground of unfair labour practice, learned counsel has contended that the impugned termination order of the petitioner was issued due to trade union activities of the petitioner. He further contended that there is a trade union of workmen namely. Pakistan Observer Al-Akhbar employees union functioning in the respondent establishment which is also C.B.A. The petitioner is the active member of the said union, therefore he was victimized by the respondents due to his trade union activities. He further contended that the allegations as alleged in the impugned letter dated 30-7-1998 are baseless as services of the petitioner have been terminated only due to his trade union activities which is unfair labour practice within the meaning of section 15 of I.R.O., 1969. He further contended that the petitioner has served the respondent- establishment for about eight years and therefore he has acquired the status of a regular employee as defined under Standing Order 1 (b) of the Standing Orders Ordinance, 1968. Therefore services of the petitioner cannot be terminated without proper issuance of show-cause notice/charge-sheet/ inquiry etc.
16. On the other hand learned counsel for the respondents has not only denied all allegations but also raised an objection regarding maintainability of the petition and jurisdiction of the Commission. As the respondents have challenged jurisdiction of the Commission on the ground that the petitioner has failed to make out a case of unfair labour practice as defined under section 15 of I.R.O., 1969, I would therefore like to discuss the evidence and the averments made by the parties in this regard. As stated earlier that in order to prove that his case falls within the scope of section 22-A(8)(g) read with section 15 of the I.R.O., 1969, the petitioner had made an allegation of his victimization on account of his trade union activities. In his petition as well as in his affidavit the petitioner has submitted that he is an active member of Pakistan Observer AI-Akhbar Employees Union (CBA) which is functioning in the respondents establishments namely Pakistan Observer and Al-Akhbar including Al-Umar Printing Press which according to the petitioner is owned by the respondent No,1 and due to his lawful trade union activities he has been victimized which amounts to unfair labour practice. Arguments of the respondents in rebuttal to this assertion of the petitioner were that the petitioner has failed to point out any specific trade union activity on his part and mere membership of a trade union does not bring the case within the mischief of section 15 of I.R.O., 1969. It is further contended that the petitioner was employed in the establishment of Al-Umar Printing Press which is owned by Messrs. Hurmat (Pvt.) Ltd. Where no trade union exists at all and this fact has been confirmed by Mr. Muhammad Iqbal, Labour Inspector of the office. Of Registrar Trade Unions, Islamabad in his cross-examination. He further contended that even otherwise initiation of a disciplinary action against an employee guilty of misconduct is the right of the employer which could not be curbed or taken away merely because the employee happended to be a member of a trade union and as such this Commission has no jurisdiction to adjudicate upon and deal with the matter. The gist of the arguments advanced by the learned counsel for the respondent is that the law does not confer a general jurisdiction upon this Commission except where the employer commits or is likely to commit an act of unfair labour practice as defined under sections 15 of the A.R.O.
1969.
17. I have given my anxious consideration to the submissions-made by the learned counsel for the petitioner and the respondents regarding allegation of unfair labour practice I could not bring myself to agree with the petitioner that his case is based on allegations of unfair labour practice.
Although the petitioner claims to be the member of Pakistan Observer Al-Akhbar Employees Union, but he failed to establish a single trade union activity which would annoy the respondents to such an extent that they would go out of their way to victimize the petitioner, particularly where existence of the trade union is not proved. Admittedly petitioner is the employee of Al-Umar Printing Press which is owned by Messrs Hurmat Publications (Pvt.) Ltd. Where no union exists at all.
It may pertinently be mentioned here that even Article (1) (URDU TEXT) of the constitution of Pakistan Observer Al-Akhbar Employees Union (Exh. P2/4 Page 58 of the File) does not allow membership to the employee of Al-Umar Printing Press or Hurmat Publications (Pvt.) Limited. The said Article provides that only those workers, who are employed in Daily Pakistan Observer and Al- Akhbar can become member of the union and there is no mentioning of the establishment of Hurmat (Pvt.) Limited or Al-Umar. Printing Press. It means that Pakistan. Observer Al-Akhbar Employees Union is registered for the employees of Pakistan Observer and Al-Akhbar and it does not include the employee of Al-Umar Printing Press which is owned by Hurmat Publications (Pvt)
Ltd. Thus in the absence of any cogent evidence, it cannot be believed that the petitioner B was victimized by the respondents, therefore the act of termination of service of the petitioner cannot form basis for holding that the respondents committed an act of unfair labour practice.
18. It has been rightly contended on behalf of the respondents that in the instant case the basic issue against which the petitioner feels aggrieved is his termination from service, therefore this Commission has no jurisdiction to interfere into the matter because jurisdiction of the Commission is restricted and limited only to the cases based on allegations of unfair labour practice. In this view of the matter while determining whether an unfair labour practice has been committed or not, the allegations that the disciplinary proceedings/action, violated the most basic tenets of a fair trial would be foreign for consideration by this Bench unless the element of unfair labour practice is first proved to be' present. I therefore could not bring myself to agree with the petitioner that his case is based on allegations of unfair labour practice. I find that the petitioner failed in proving that on account of his trade union activities the impugned order was issued by way of unfair labour practice as defined under section. 15 of I.R.O., 1969. He has failed to quote any specific instance of unfair labour practice on the part of the respondents but has repeated his allegation of being victimized due to trade union activities. Mere wild and bald allegation of unfair labour practice is not sufficient to prove victimization and make amenable for interference by the Commission. In the circumstances, the relief prayed for by the petitioner cannot be granted. According to law as laid down by the Honourable Supreme Court of Pakistan in the case of Iftikhar Ahmed PLD 1988 SC 53 followed in 1991 PLC 876, 1988 PLC 923, 1988 PLC 419 and 1994 PLC 31, this Commission has jurisdiction to interfere only if a case falls within the ambit of section 15 of I.R.O., 1969 and nothing beyond that. This provision of law provides redress of grievance as E arising out of victimization on account of trade union activities only. No other victimization even if proved, is actionable by this Commission in exercise of jurisdiction cited by section 22-A(8)(g) of I.R.O., 1969.
20. Upshot of the above discussion is that the petitioner fails in proving unfair labour practice on the part of the respondents. I therefore, no hesitation in holding that this Commission has no jurisdiction to deal with this petition, which is hereby dismissed. The stay order dated 14-9-1998 is recalled. However the petitioner if so desire may file a petition before the competent forum for redress of his grievance. Parties are directed to bear their own costs. File be consigned to record.