' SYED AKHTAR NAQI NAQVI (MEMBER).---This appeal is directed against the order dated 19-7-2003 whereby the learned Member Single Bench, Karachi of this Commission was pleased to allow a Grievance Petition No,4A(214)/99-K and declare the impugned act of the appellant a result of victimization and directing the appellant thereby not to commit any further act of unfair labour practice against him. Therespondent filed the aforesaid grievance petition before the learned Member, Single Bench, Karachi contending therein that he was employed in the appellant-Mills as Skilled Worker (Fitter) of CRM department with 23 years of service at his credit and since by virtue of his duties he is a workman, he remained involved in the trade union activities of the workers of the appellant-Mills and was also elected as Deputy General Secretary of Pakistan Steel Peoples Workers Union and remained in that office from 1995 to 1997. The respondent futher contended that on 25-6-1999. Mr. Rasheed A. Memon, Manager Incharge who is his immediate boss, called the respondent in his office and directed to resign from the membership of the 'said union and join the hands of Labour League (a trade union which had recently been registered) and he also threatened the respondent that alternatively he would have to face hardships in his service which may include his termination, discharge or dismissal by the higher management of the appellant- Mills. However it was declined by the respondent. In this background the respondent contended that on the same day after some time, the respondent received a letter whereby his 30 days leave which had already been sanctioned, was cancelled by one Abdul Khalid Shaikh, who signed the order as G.M. Rolling. The respondent further contended that he was also suspended for a period of 4 days on the same date, hence the respondent approached the said Rasheed A. Memon and asked about the matter who replied that there was a time for consideration and if he agreed to the proposal made by him, the things will go all-right but the respondent refused to accept the said offer with the result that on the same day the respondent received another letter containing a show-cause notice to explain why he remained absent after one hour of signing the attendance register. The respondent denied the allegations as incorrect on '28-6-1999. This suspension was lifted on 14-7-1999. On 7-7-1999 an Enquiry Officer was appointed, from whom he received a letter directing thereby to appear before the Enquiry Officer on 14-7-1999. The respondent participated in the said enquiry proceedings but no copy of the complaint was supplied to him. However the said Rashid A. Memon had appeared before the Enquiry Officer as complainant., The respondent contended that he fell sick on 27-6-1999, hence he reported to the authorized hospital namely PNS Shifa and the doctor put the respondent on sick leave for two weeks. The respondent contended while filing this grievance petition that he apprehended injustice at the hands of Enquiry Officer and also apprehended harsh disciplinary action like dismissal from service. He challenged all these proceedings as mala fide, unwarranted and opposite to the law in force due to the environment of the appellant, their agents and other officers etc., in the acts of unfair labour practice within the provisions of S.15 of I.R.O., 1969 (since repealed), hence this grievance petition to prohibit the appellant from passing, effecting adverse order against him, directing the appellant notto dismiss, discharge, remove and terminate him by way of unfair labour practice and direct the appellant, its agents, officers and persons connected with them to do and to refrain from doing any act of unfair labour practice and directing the appellant to submit report of Enquiry Officer before this Commission and passing any order against the respondent unless this Commission permits for the same.
2: The appellant-Mills resisted the grievance petition inter alia on the grounds that since the time of joining the service in the appellant Mills the respondent remained absent from duty on a number of occasions and he has been slipping away from the place of his duty after reporting to duty and signing the register. He was served with a show-'cause notice dated 23-9-1978, then he was given a show-cause notice dated 12-7-1979 and lastly he was served with a show-cause notice dated 28-4-1997 and then dated 7-10-1997. In this duration he was referred to Medical Board and warnings were issued to him at a number of occasions on the same allegations and the alleged cause of action being show-cause notice and domestic enquiry therein dated 25-6-1999 was yet other instances of subversive behaviour of the respondent for which according to the prevailing rules and regulations he was issued show-cause notice and a domestic enquiry was proposed to be conducted. The allegations of unfair labour practice were denied as incorrect, fictitious aria styled for the purpose of the said application and gaining sympathy of this Commission, there being no substantial cause of action for its intervention. The jurisdiction of this Commission was also assailed on the ground that the respondent enjoys the status of civil servant for matters relating to the terms and conditions of service as the appellant-Mills is a corporation under the control of the Federal Government.
3. In support of his respective contentions the respondent submitted his affidavit-in-evidence Exh.
P.W.-1/1 thereby reiterating his claim mentioned in the grievance petition which has been fully detailed in the opening paragraph of'this judgment hence the same need not be repeated at this stage. He was cross-examined by the learned counsel for the appellant whereby he asserted that the was present on duty on 25-6-1999 in CRM Plant of the Mills. With regard to other instances given in the reply to the grievance petition about his alleged absence from duty, the respondent denied incorrect and about the issuance of show-cause notice in that connection; he displayed his lack of knowledge'. He also stated during Cross-examination that his officer namely Rasheed A.
Memon had sympathies with Labour League and he only had the power to recommend his leave and had no power to sanction or cancel the same. He denied incorrect that he had stated before the Enquiry Officer that he was not present on his duty place on the given date. He however did not remember if he.Mighthave stated that after prayer break, he could not go to his duty place due to his sickness. At the time the statement was beingrecorded the respondent claimed to be a Senior Vice-President of the Peoples Workers Union, Pakistan Steel. The respondent denied all the allegations as incorrect that he had made a false statement regarding his presence on the duty place on 25-6-1999 and that he was not threatened with victitnization in case he does not leave his union and join the other one.
4. In rebuttal the appellant's management produced Nazir Ali, Junior Officer, CRM Department who submitted his affidavit-in-evidence stating therein that the respondent joined the Pakistan Steel Mills as Security Guard on 16-4-1976 and after having worked in different departments, was then posted in CRM Department and that on a number of occasions during his service he had remained absent without prior application or intimation and he was in a habit of slipping away from office after reporting for duty and signing the attendance register, hence he was served with certain show-cause notices which were produced at Exh.R/1. Ex.R/2 and Ex.R/3 and he was served with a notice of domestic enquiry Exh. R/4 which was duly conducted and as a result by giving him the benefit of doubt the notice was let off with a stern ' warning. The witness further deposed that due to frequent medical leave availed by the respondent, he was referred to a Medical Board for complete examination on two different occasions vide Exh.R/5 and Exh.R/6 which submitted its report Exh.R/7. The witness also referred to certain other occasions of his absence from duty and as result memorandums Exh.R/8. warningExh. R/9, memorandums Exh.R/10 and Exh.R/11 having been issued to him for which the respondent, submitted his explanation Exh.R/12 and Exh.R/13. He also referred to warning dated 25-5-1999, Exh.R.14, memorandum dated, 21-6-1999, Exh.R/15 and with regard to the impugned absence, issuance of show-cause notice Exh.R/16 and from that he concluded that the respondent was a habitual absentee from duty and therefore the enquiry was to be conducted regarding his absence on 25-5-1999. It was also deposed in the affidavit-in- evidence the appellant had received the reply dated 28-6-1999 to the show-cause notice dated 25-6-1999 and that a letter of removal from suspension dated 15-7-1999 was issued by the appellant. It was deposed that an Enquiry Officer had been appointed to hold enquiry into the charges levelled vide show-cause notice dated 25-6-1999 and Mr. Rasheed A. Memon appeared before the Enquiry for getting his statement recorded. The witness also deposed that the respondent is a, civil servant under the Federal Government and therefore the jurisdiction of this Commission is barred.
5. When cross-examined, the witness stated regarding his objections against the jurisdiction of this Commission that under the advise of his Advocate he has stated that this Commission has no jurisdiction but he does not know about the grounds and that hisAdvocate had written that this petition is liable to be dismissed. At the start of his cross-examination the witness has stated that the Law Department of the appellant had nominated him to file affidavit-in-. Evidence and not the Chairman of the appellant Mills This indicates that the witness has neither applied his mind nor he has first hand knowledge about the allegations against the respondent. It finds support from the admission of thewitness whereby he does notknow if the respondent had gone out of the Mills on 24-6-1999. He admits about trade union activities of the respondent and also that he had replied to the show-cause notice for his alleged absence that he had gone for some Work and that he was being victimized due to trade.Union activities and this reply had been Submitted to Khursheed Alain,. Who was the head of the department of the respondent at that time and who remarked on the reply of respondent that the same was not satisfactory. Anyway it was the bounden duty of the appellant to have produced the said Mr. Rasheed A. Memon or the Enquiry Officer because the learned counsel for the B appellant has contended that the respondent had admitted before the Enquiry Officer that he was absent from duty on the given date.
6. A perusal of the evidence led by both the parties would indicate that on the one hand the respondent has denied pqint blank regarding the allegation of his slipping away from the office after marking himself present. On the contrary he has made an explanation that at about 12-45 p.m. He went to the canteen and from there -he offered his prayer whereafter he could not move due to certain disease. Irrespective of the correctness or otherwise of this contention of the respondent, the onus shifted towards the appellant to have proved the allegation and for this purpose either an official/officer of the department where the respondent was working and in whose presence, the respondent marked himself present on the given date and slipping away, should have been produced or his immediate boss Mr. Rasheed A. Memon. It has been contended by the learned counsel for the appellant that the respondent had confessed before the Enquiry Officer about his having remained absent from duty but this would not support the appellant for the reasons that even the C Enquiry Officer has not been produced in the witness-box. This admission could have been proved only by him. Therefore this does not advance the appellant's contention. It has been admitted by the only witness produced by the appellant that the respondent was a trade unionist. We have been confronted with certain other certificates whereby, even thereafter the respondent had been elected as office-bearer in different capacities including Vice-Chairman even after the period in issue i.e, 1999. It appears that the respondent was being watched very deeply and the moment he was found away from his duty place, he was reported to be absent although it is but natural for him particularly being trade unionist that lie had to go to other rooms of thesaid factory for any urgency. It indicates that respondent's trade union activities were not being taken in good taste by the appellant-management and they were out to oust him'from these activities. It is an admitted position that one month's sanctioned leave had to start from 28-6-1999 and the alleged incident took place on 25-6-1999 meaning thereby that the respondent should have not given any chance to the appellant to proceed against him on any false pretext: In reply to a question by the undersigned as to what heaven was falling that the said leave was unilaterally cancelled by the appellant's management, it was replied by the learned counsel that to proceed with the enquiry the said sanctioned leave of the respondent was to be Cancelled. This reflects how the appellant-management had in its mind to victimize the respondent. Had there been a clear mind about him, show-cause notice could have 'been served upon him and he could have been asked to reply to the said notice after his return from leave. It was absolutely not obligatory that disciplinary proceedings could not have been initiated without the cancellation of sanctioned leave. There are many problems of the employees for which they have to obtain leave to resolve the same. It was unjust and mala fide to cancel the leave on this short ground when the respondent had to report for duty after one month. The learned Member, Single Bench has discussed the evidence led by both the parties and has arrived at a correct conclusion with regard to allegation of the respondent and we find no ground for any interference therein.
7. Learned counsel for the appellant assailed the jurisdiction of this commission on the ground that the appellant is corporation and controlled by Federal Government as such by virtue of S.2A of Service Tribunals Act, 1973 the respondent be deemed to be a civil servant for the purpose of this Act. On the other hand Ch. Muhammad Ashraf Khan, learned Advocate for the respondent has submitted that the respondent being the workman and office-beater of Peoples Workers Union, Pakistan Steel since 1995 and on account of his victimization and discrimination due to his trade union activities and his association with Peoples Workers Union as such he has been threatened with his dismissal D and termination from service which act of the appellant is an act of unfair labour practice and the National Industrial Relations Commission is the only forum to deal with the case of unfair labour practice committed or likely to be committed against the workman. It is an admitted position that the respondent continues to be in the employment of appellant-Mills and there is evidence on record to show that he is being victimized and discriminated because of his refusal to leave Peoples Workers Union and joining Labour League and the same being an act of unfair labour practice falling within the ambit of section 63 of I.R.O., 2002 we are of the view that the N.I.R.C. Will have jurisdiction to deal with the petition based on unfair labour practice. It shall also bepertinent to mention that the show-cause notice dated 25-6-1999 on which disciplinary proceedings have been initiated against the respondent by the appellant is. Under Standing Order 15(3)(h) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 as such the appellant themselves have also accepted the respondent as workman.
' For the foregoing reasons we find no merits in this appeal as the learned Member, Single Bench has appreciated the law and facts of the case properly. Accordingly the appeal stands dismissed with no order as to costs.