' MR. ALI NAWAZ A. CHANNA (CHAIRMAN).---Both the above-mentioned appeals are being disposed of by this common judgment as the facts and law involved in both the appeals are same. Both these appeals are directed against the order of learned Member Islamabad dated 16-10-2002 by which order he dismissed the petitions of both the appellants holding that they have not proved the ingredients of unfair labour practice as such they have no case of unfair labour practice as required under section 22-A (8)(g) of I.R.O. The brief facts leading to the filing of both the appeals briefly stated are as under.
2. That the appellants were the employees of respondent and they were office-bearers of the trade unions formed by them. They have stated that from the very inception and creation of their union the respondents were not only against the formation of the union but against the trade union activities of the union members and its office-bearers. Both of them have alleged that the respondents were so harsh and cruelto trade union, that they started dismissing the members of office-bearers of the trade union one by one with the result the within span of 7 months almost all the office-bearers of the trade union were terminated from service. They further stated that the respondents had filed writ petition before the Hon'able High Court against the formation of trade union and for its cancellation but the writ petition was dismissed with costs of Rs,20,000. Again the respondents failed Intra-Court appeal but, that too, was dismissed. They have alleged that after having failed in their attempt to, get the union illegally cancelled they started short cut measures by eliminating the office-bearers from the scene and dismissed or terminated the office-bearers by hook or crook. Petitioner Faisal Ali has alleged that in order to get rid of him the respondent served him a false charge-sheets dated 18-7-1998 that he had manhandled and misbehaved with Ch. Muhammad Afzal and injured him. He has alleged that the charge-sheets against him is false fabricated and aimed at getting rid of him. He has further alleged that no proper enquiry was held against him and on the so called charge-sheet he was dismissed from service vide order dated 29-9-1998.
3. Petitioner M. Waheed has alleged that he was also dismissed from service on false ground that in the Charging Lab. The testing staff has been reduced from 100% to 10% as such there has been decrees in the work load due to which from persons two persons have to be retrenched. He being the junior most is terminated from service. He has alleged that on this false ground he was terminated from service vide order dated 30-7-1998.
4. Accordingly both the petitioner filed petitions before the learned Member for their reinstatement in service but without success.
5. The respondents had taken their stand before the learned Member that they are not against the trade union or trade union activities of the petitioner nor they were finding ways and means to dismiss or terminate the services of the office-bearers of the trade union. Regarding Faisal Ali the respondents stated that the had misbehaved manhandled, abused and caused injures to Ch. Muhammad Afzal the Senior Officer of the respondent establishment for which F.I.R. Was lodged with the Police and Police had arrested the appellant and he was put behind the bars. The F.I.R. Was produced on the file of the lower Court bearing No,235 of 1998. It was filed under section 337-A(ii).
They further stated that thereafter he was on bail but subsequently bail was cancelled and he remained in jail for 45 days. He stated that on this action he was charge-sheet and enquiry was conducted and the enquiry was fixed on 28-9-1998 but the appellant sent an application for adjournment of the enquiry for one day, that the enquiry was fixed on the next day i.e, 29-9-1998 but on this day although appellants was on duty but he did not attend theenquiry. .Proceedings and sent message that the respondent may do whatever they like and since he did not appear, the dismissal order was passed on the report of the Enquiry Officer.
6. We have heard the learned Advocate for the appellants and the learned Advocate for the respondents. We have gone through the pleadings of the parties, evidence adduced by them and the impugned order. At the very outset of the arguments the learned Advocate for the respondents argued that the petitions filed by the appellants before the learned Member were not maintainable in law as both of the appellants were terminated employees and the unfair labour practice if any in respect of both of them hade already been done and completed whereas this Commission has jurisdiction only be prevent the occurrence of acts of unfair labour practice. He argued that this objection was raised by them at the very initial stage in the written comments but this argument was not attended to by the learned Member nor any finding was given by him. He argued that the learned Member took another view on the facts that the charge-sheet framed against the appellant Faisal Ali was not relatable to the acts of unfair labour practice but that it was relatable to misconduct having been committed by the appellant Faisal Ali. As regards appellant Muhammad Waheed he argued that the learned Member held that the termination of appellant M.
Waheed was also not relatable to unfair labour practice but it was on account of retrenchment for the purposes of reorganization of the respondents' institution. He further argued that the appeal of the appellant Muhammad Waheed is time-barred and cannot be heard as it is not maintainable.
7. As against this statement the learned Advocate for the appellant argued that the N.I. R. C. Had the jurisdiction to entertain the petition of the employee who had been terminated from service and the N.I.R.C. Had the jurisdiction to reinstate the terminated employee in exercise of powers vested under section 22-A (8)(g) of I.R.O. He argued that the N.I.R.C. Is working and functioning on the principles of sections 25-A and 34 and has the powers of Labour Court, hence under section 25-A the N.I.R.C. Can reinstate the terminated employees. He was repeatedly asked to quote any authority that any terminated employee can approach the N.I.R.C. For his reinstatement and he promised to produce the law on this point next day and today he has produced a judgments of learned Single Member NIRC namely Abdul Sattar Khan who had reinstated two employees in service in exercise of his powers under section 22-A(8)(g) of I.R.O. And also the judgment of the Full Bench against the said order of the learned Member by which the appeal of the reinstated employees was dismissed. At the very outset it can be said that the learned Member Abdul Sattar Khan had passed his order for reinstatement of service but his whole judgment was set aside by the Full Bench but on the other ground. In the Full Bench the point whether a terminated employee can approach the N.I.R.C. Was not discussed as such the judgment of single Member is neither binding on as nor it has correctly enunciated the principle of law. By now it seems that the law has been fairly settled that the functions and the jurisdiction of the N.I.R.C. Is to prevent occurrence of unfair labour practice but where such acts have already been done then the N.I.R.C. Has, no jurisdiction. This law was settled as far back as 1976 in a case reported as Dr. Ijaz Hassan Qureshi v.
N.I.R.C. Reported as 1976 PLC 47. It will be advantageous to reproduce the relevant observation for the sake of convenience they are as under:-- "11. The Regulations do have a statutory basis and force and they do expressly provide and empower the Commission to direct the reinstatement of the employees. But such a direction has been made dependent on the Commission's finding the person standing trial guilty under section 53 of the Ordinance. Such a power of directing reinstatement is not ancillary or incidental to the process of a adjudication but is consequential to a finding of guilty. It is only when the Commission has arrived at the guilt of the employer that a further direction is required to be exercised in the matter of directing the reinstatement of the employees. In other words, the precondition of the finding of guilt has to be satisfied before the power to direct reinstatement either finally or as an interim measure, can be ordered. As the scheme of the Act itself contains no provision for determining ad-interim and guilt of a person charged of the offence, the consequential relief dependent on final adjudication cannot be availed of to provide interim relief. Keeping in view the scheme of the Ordinance and the Regulation the power to direct reinstatement does not appear to be either incidental or ancillary. Instead, it appears to be consequential and therefore, it cannot be exercised ad-interim only because the jurisdiction to try an offender has been conferred on the Commission."
This judgment was followed by Sindh High Court in case reported as Allied Bank of Pakistan and 3 others v. Chairman N.I.R.C. And 4 others reported as 1984 PLC 1392. In this authority it was made more clear that where unfair labour practice has already been committed the N.I.R.C. Has no jurisdiction and that a terminated employee cannot approach the N.I.R.C. For his reinstatement.
The relevant portion from this authority is also re-produced as under:-- "It may further be noticed that the above Regulation 32 has two parts, namely, Clause (1) which deals with an unfair labour practice already committed, whereas Clause (2) provides for an unfair labour practice which is likely to be committed and in thisbehalf the Commission is empowered inter alia to prohibit all or any of the connected persons to do or refrain from doing any act or the conduct themselves or their affairs in a manner calculated to avoid occurrence of an unfair labour practice. In other words the Commission has been empowered under Clause (2) of Regulation 32 to prohibit the Commission of an act/omission Which constitutes an unfair labour practice. But the Commission has not been vested with such powers in respect of an unfair labour practice already committed covered by above clause.".
' Similar type of view was again taken by the Karachi High Court in case reported Khuda Bakhsh Baluch v. Matique Ullah reported in 1990 PLC (7), In this authority it was clarified that "Power of reinstatement as embodied in Regulation 32 held was not independent or ancillary or incidental to process of adjudication but was dependent of finding the persons standing trial to be guilty under section 53 of I.R.O., 1969. Such power of reinstatement could only be exercised in a case of awarding punishment for unfair labour practice as not in a case of acquittal of charges".
8. The perusal of the above quoted authorities make it very clear that the N.I.R.C. Has the jurisdiction to entertain the cases where there are allegations of apprehanding unfair labour practice but where 'the unfair labour practice has already been committed and done then the N.I.R.C. Has no jurisdiction. However, it is clear from above authority that if any employee challenges his termination on the ground of unfair labour practice then he may file d complaint under section 53 and in the said complaint upon trial if the employer is found guilty then simultaneously the employee can be reinstated in service but in that complaint also, the employee cannot be reinstated if the employer is acquitted of the charges. From the above authorities it is more clear that reinstatement by the N.I.R.C. Is dependent upon finding an employer guilty of unfair labour practice. In this case there is no complaint while there is only civil petition under section 22/A (8)(g) of I.R.O. In such circumstances on the dictum laid down in the above authorities the N.I.R.C. Has no jurisdiction to reinstate the appellant in service. The terminated employees have the remedy to approach the Labour Court for reinstatement under section 25-A of I.R.O. The argument of the learned Advocate for the appellant that the terminated employees have three fold remedies i.e, either they can approach the Labour Court or they may approach the N.I.R.C. Or they may filed a complaint under section 53 of the I.R.O. For their reinstatement has absolutely no force. If an employee is terminated then if he is a servant of Government controlled institution then he has to approach the FST and if he is an employee of private institure then he has to approach the Labour Court. However, he' cannot approach the N.I.R.C. Under section 22-A (8)(g). It is true that he canapproach the N.I.R.C. By filing complaint under section 53 of the I.R.O.' but his reinstatement will be dependent upon finding the employer guilty C of offence of unfair labour practice.
9. Admittedly appellant Faisal Ali was terminated from service vide order dated 29-9-1998 while appellant Waheed was dismissed from service vide order dated 30-7-1998. Admittedly appellant Faisal Ali filed petition on 7-10-1998 i.e, after about 8 days of his dismissal while appellant M.
Waheed filed petition on 15-8-1998 i.e, after about 15 days when in both the circumstances the unfair labour practice if any had already been completed as such they could not have approached ,the N.I.R.C. For their remedy. Their. Remedies was to approach the Labour Court. It is very strange that in spite of specific pleading taken by the respondent what the petitions of the appellant are not maintainable the learned Member did not advert to this important legal aspect.Of the case.
10. We are of the considered view that both the petitions filed by the appellants were not maintainable before the learned Member and he had no jurisdiction to hear such petitions and both the petitions were liable to be dismissed on this legal point.
11. As far as factual aspect of the cases are concerned we have seen the charge-sheet issued to appellant Faisal -Ali. The charge-sheet is so grave in nature that it cannot be relatable to the acts of unfair labour practice. A criminal charge has been levelled against Faisal Ali in which it is alleged that he caused injuries to his officer. This charge-sheet is supported by an. F.I.R. Filed against the appellant Faisal Ali. It is on the record that on the F.I.R. Appellant Faisal Ali was challenged in the Court of law and he remained in jail for about 45 days. How in such circumstances he could say that the charge-sheet was result of acts of unfair laboru practice on the part of the respondent. On the other hand the appellant Faisal Ali had committed grossest type of unfair labour practice and he was guilty of gross misconduct. In our view the charge-sheet issued to Faislal Ali is not relatable to acts of unfair labour practice. Whereas it was relatable to gross misconduct committed by Faisal Ali appellant. In such circumstances the appellant was dismissed from service then the remedy for him was to approach the Labour Court on this account. The petition of the appellant was not maintainable before the learned Member and was also liable to be dismissed on this account.
' As regards the case of appellant Muhammad Waheed the learned Advocate for the respondent argued that his appeal is time-barred as the impugned order was passed on 16-10-2002 while the copy was also supplied to the appellant on 16-10-2002 while he filed appeal before this Commission on 18-11-2002 i.e, after two days delay of the required statutory period of 30 days. In this connection along with the appealapplication for condonation of delay was filed and medical certificate was attached with the application to show that the appellant was ill, and therefore, could not file the appeal. The certificate appears to be not proper as it does not show as to on what date he was admitted and as to on what date he was discharged from the hospital. The medical certificate shows that the appellant remained admitted in PIMS for 10 bars. It appears that this certificate was managed by the appellant. No proper justification for the delay has been explained by the appellant as such it is held that the appeal of the appellant is also. Time-barred.
In view of what has been stated we have came to the conclusion that the appeals of both the appellants are not maintainable and the learned Member has rightly dismissed their petitions and his order does not call for any interference from the Court. Accordingly both the ,appeals are dismissed.