' MAJOR (RETD.) SHAHNAWAZ BADAR, SECY. LABOUR PUNJAB/MEMBER---This appeal is directed against the judgment dated 12-3-2002 passed by Mr. Riaz-ul-Hassan Alvi learned Member Single Bench whereby he dismissed the Grievance Petition No,4a (301)/98-L filed by the appellant, wherein he contended that he joined the respondents-Bank as Naib Qasid on 27-11-1992 and on the basis of his hardwork and efficiency, he was promoted as Cashier on 1-11-1995 in which position he kept on performing his duties. The appellant contends that by nature of his duties he falls under the definition of a workman as given in the I.R.O. The appellant contended that on account of his extraordinary trade union activities for his CBA Union, he became the Regional President of MCB Staff Union but these activities were not liked by the respondent-Management hence the appellant was victimized. With regard to this allegation the appellant contended that on 14-7-1997, he got an electric shock in the evening and was unable to report for duty therefore, he submitted a medical certificate for 15 days on 15-7-1997 and sent it under registered post and it was extended till 25-8- 1997 vide Annex-D whereafter he reported for duty on 26-8-1997 vide Annex-E but he was referred for a second opinion vide Annex-F to the Bank Medical Officer who declared the fitness certificate to be correct and it was clearly mentioned in Annex-G that the petitioner was recovered from Electric Shocks. The appellant further contended that he reported for duty on 26-8-1997 with a fitness certificate, he was directed to appear before the Inquiry Officer on the same day. He submitted an application Annex-H that no charge-sheet had been served upon him and he had not submitted any reply to such charge-sheet which might have been considered satisfactory or unsatisfactory therefore, there was no question of holding the inquiry. On this, a charge-sheet was served upon the appellant on 26-8-1997 which he replied on 31-8-1988. He also requested to change the Inquiry Officer vide application dated 3-9-1997 Annex-K. The appellant contended that on 15-6-1997 he appeared before the Inquiry Officer and submitted an application Annex-L to get the copies of the record which was necessary to participate in the inquiry and also requested to provide the facility of co-worker to assist him in the inquiry but both the requests were received by a deaf ear. The appellant contended that he was surprised to receive a dismissal order dated 19-1- 1998 without holding of inquiry, supply of inquiry report, final show cause notice and personal hearing which are requirements of natural justice hence he was condemned unheard. The appellant also contended that vide settlement Annex-M, he was exempted from duty thus the charge was baseless.
2. The respondents contested the grievance petition inter alia on the grounds that the contents of the petition do not divulge any allegation of the unfair labour practice in terms of section 15 of the I.R.O., 1969 (since repealed) hence the subject-matter falls outside the jurisdiction of this Commission, that after his removal from service, the petitioner has ceased to be a workman under the I.R.O., 1969 (since repealed) and therefore, he cannot maintain his petition before any forum created under the said Ordinance and the grievance petition is liable to straightaway dismissal.
The allegation of unfair labour practice in terms of section 15 ibid was also refuted it was also contended on merits that the appellant was dismissed on account of his trade union activities but instead he submitted fake certificates and that too at a very late stage and therefore he was directed to appear before Dr. Abdul Khalique for second medical opinion who found the appellant fit to perform his duties and under compulsion of the Medical certificate, the appellant reported for duty. It was contended that the requests of the appellant for providing him with copies of the charge-sheet and changing the Inquiry Officer were accepted and the appellant participated in the inquiry proceedings initially and he stood away w,e,f, 16-9-1997 whereafter the inquiry proceedings were taken ex parte. It was contended that after proper inquiry the impugned action was taken against the appellant. It was also denied that the appellant was entitled to exemption from duty under any settlement and this concept being contrary to the provisions of the I.R.O. And section 27 (b) of the Banking Companies Ordinance, 1962 and any settlement or any provision therefore, which offends any statutory provision is ab initio void and cannot be relied upon in any Court of Law.
3. Both the parties were asked to adduce evidence in support of their respective claims. The appellant himself appeared and submitted his affidavit in evidence Exh.P-1 which is a narration of his grievance petition which has been fully detailed above hence the same need not be repeated at this stage. The appellant was cross-examined wherefrom he admitted correct that the inquiry proceedings Mark-R/1 contained his signatures, that at his request Munir Ahmed Inquiry Officer was substituted by Iqbal Hussain, that charge-sheet was served upon him which was replied by him and that on the allegation of unauthorized absence from duty, he had been terminated. He admitted correct that he had not approached the Labour Court with regard to this issue. He also admitted having received the termination letter on 23-1-1998. The respondents produced Munir Ahmed AVP in their defence who submitted his affidavit in evidence Exh.-R/1 which is also a reproduction of the reply to the grievance petition, hence the same need not be repeated at this stage. The witness was cross-examined but nothing material could be brought on record which could establish the appellant case.
4. On the basis of this evidence the learned Member Single Bench NIRC, Lahore Bench dismissed the grievance petition vide order dated 12-3-2002 which has been assailed by means of this appeal in which it has been contended that the learned Member Single Bench has committed gross irregularities of misreading and non-reading of the evidence, he has ignored the documents on record and has drawn a conclusion which is not supported by evidence, that the learned Member Single Bench has not appreciated the contents of the affidavit which clearly established that the appellant was nominated as Regional President of Okara Unit and due to his lawful trade union activities the Regional Manager of the respondent-Bank was annoyed with him and threats had been given to him to leave his trade union activities. This averment of the appellant was neither cross-examined nor controverted by the witness produced by the management therefore, this shall be treated as having been accepted. It was also contended that the conclusion drawn by the learned Member Single Bench in the order under appeal that the appellant was only a nominated office-bearer and therefore, not an active trade unionist is totally based on conjecture and surmises since the constitution of the union itself provided for nomination of Regional President and General Secretary. It is contended that there was in the evidence that the absence of the appellant w,e,f, 15-7-1997 to 26-7-1997 was beyond his control on account of a sudden electric shock received by him and he had submitted medical certificates from the doctor and even otherwise the President and the General Secretary of each unit of the CBA Union were exempted from duty under an agreement between the CBA Union and the Bank-management. But this Bench did not appreciate the acts of unfair labour practice committed with the appellant. We have heard the learned counsel for the parties at quite some length and have perused record.
5. It is an admitted position that the appellant had received the termination letter on 23-1-1998. It is also admitted by the appellant in his cross-examination that copy of the show-cause notice and statement of allegations was served upon him at his request to which he replied before the Inquiry Office and he also requested for changing the Inquiry Officer and that at his instance Munir Ahmed Inquiry Office was substituted by Iqbal Hussain as Inquiry Officer. The said Munir Ahmed appeared as a witness on behalf of the respondents who proved his inquiry report Ex-R/1. When cross- examined, the said Inquiry Officer stated that he came to know of the union activities of the appellant after the inquiry. He has stated that the allegations levelled against the appellant related to his misconduct. No partiality or influence of the respondent-Management was attributed to him or suggested during cross-examination, therefore, on the one hand there is no denying the fact that the appellant was charge-sheeted with an allegation of absence from duty and that a regular inquiry was conducted against him. He was not justified in staying away from the inquiry when his request had been granted for change of Inquiry officer. He had no complaint against the second Inquiry Officer who appeared as witness on behalf of the respondents. The appellant himself even did not request for change of that Inquiry Officer. It is a matter of common sense that an officer from the respondent-Management had to conduct the inquiry and not from outside. It was the duty of the appellant to have participated in the inquiry proceedings and to have produced the doctors who had examined him from the very beginning of the period of his absence from duty on account of suffering from electric shock. The moment the appellant was referred to a Bank Doctor he found him fit to perform duties. The crux of the matter is that the appellant never submitted an application for leave on ground of his sickness which is mandatory for every employee to seek leave if he cannot attend the office. Mere submission of a medical certificate is an act of indiscipline which means that the employee does not find himself under any kind of office discipline. It was only then that the management could appreciate the genuineness of his request for leave. From the above it is crystal clear that the inquiry was held against the appellant on the allegation of misconduct and not on account of his trade union activities due to unfair labour practice. The appellant's requests were heard and granted during the inquiry proceedings but in spite of that he did not bind himself with that the principles of administration by absenting himself from the inquiry proceedings without any justification.
6. So far as the settlement between the CBA Union and the respondent-Management with regard to exemption of the office-bearer from remaining/resort on duty is concerned, in the first instance the appellant has not asserted his right of leave on this ground that even if this is so, he does not possess any such right. The appellant's assertion. In this regard was not only denied in the reply to the grievance petition but also in the affidavit in evidence Exh.-R/1. Even otherwise this is not a proved document. By appending a document with a petition does not mean that it is a proved document unless it is proved and got it established in evidence. In spite of that a perusal of this document which was produced as Annex-M would indicate that this was a settlement for the year 1995-96 as recorded therein. The appellant was absent from duty without sanctioned leave in the year 1997. By that time certain restrictions had been imposed on trade union activities by an amendment in the Banking Companies Ordinance 1962 vide section 27(b). The appellant was no more free from performing his duties, unless the amendment was got set aside by him. There is another aspect of the matter is that after three months of his dismissal from service, the appellant had filed this grievance petition when he was no more a workman of the respondent-Management therefore, there was no question of unfair labour practice. He should have invoked the jurisdiction of this Commission when the alleged acts of unfair labour practice were initiated against him by way of show-cause notice or inquiry proceedings. After the action taken the appellant should have moved the Labour Court concerned. The grievance petition itself was not even competent before the learned Member Single Bench of this Commission. It was rightly observed by him that there was neither any evidence of victimization or discrimination of the appellant on account of his lawful trade union activities. The learned Member Single Bench has therefore, not committed any illegality of misreading or non-reading the evidence on record or appreciation of law.
7. For the foregoing reasons, we do not find any merits in this appeal hence the same is dismissed leaving the parties to bear their own costs.