' ALI NAWAZ A. CHANNA , MEMBER.---This order will dispose of stay application filed by the petitioners under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulation, 1973.
2. The petitioner Employees Union along with 4 others have filed this petition under section 22-A(8)
(g) of the I.R.O., 1969 against the management alleging therein that the respondents are committing various acts of unfair labour practice so that the trade union of the petitioner may be rendered redundant and ineffective and that the respondents have been violating different labour laws openly and without check upon them. The petitioners have given the instances of unfair labour practice that the respondent management has been trying to wipe-out, destablize and puppetize the petitioner union and have been discriminating against its office-bearers and active members, that the respondent management has been threatening officers/members of petitioner union particularly the above named petitioners to dismiss, discharge or remove them from service or to injure them in respect of their employment for the reason that they are officers/members of petitioner union. They have specifically mentioned the names of Munawar Asghar, Chief Accountant, Aslam Shad, Chief Security Officer, Gustasab Khan, Supervisor and Shahbaz Akber, Supervisor that they are frequently calling the members of the petitioner-union and harassing them and asking them to give up the trade union and in their lieu they will be conferred monitary benefits. They have alleged that in case of refusal to give up trade union activities they have been threatened with consequence of dismissal or removal from service. They have given further instances that minimum wages of Rs,2500 per month fixed by the Government are not being paid to the workers but only Rs,2000 per month is being paid to the workers. They have given further instances that about 100 workers who have more than 9 months' service and upto 10 to 14 years' service at their credit are being treated temporary workers. They have further alleged that respondents unilaterally changed the working hours of general shift from 9-00 a.m., to 6-00 p.m.
Instead of 9-00 a.m. To 5-00 p.m. Which continued for about 35 years. They have alleged that in order to victimise petitioner Nos.2 to 5 who are active members of the union and who have more than 13 years service at their credit, have been issued false charge-sheets and also placed under suspension so that they may give up their trade union activities. The petitioners have prayed that acts of respondents be declared as acts of unfair labour practice and they may be restrained from terminating the service of petitioners Nos. 2 to 5 and that they may be restrained from dispensing with the services of so called temporary workers, to restrain the respondents from compelling the workers of general shift to work from 9-00 a.m. To 6-00 p.m., to restrain the respondents from depriving the so-called temporary workers and other workers of their statutory rights such as minimum wages of Rs,2500 per month.
3. The respondents filed written comments in which they have denied various allegations of the petitioners. They denied that they are against the trade union of the petitioners. They have denied that they have ever harassed or victimized the petitioner trade union or its office-bearers or the petitioners Nos.2 to 5. They have also denied that the officers of the respondents named by the petitioners had ever called any office-bearers of trade union and asked them to give up their trade union activities or that they threatened the petitioners or office-bearers that they will be dismissed or discharged from service. They also denied that they have ever committed act of unfair labour practice. They have stated that they are paying the wages to the workers in accordance with rule and policy of the Government, that they have not changed the working hours of the general shift but have only made adjustment so as to give more time to the workers for lunch and for offering prayers. They have denied that they are not making temporary workers as permanent. They however, stated that wherever there is temporary post they appoint temporary personnel on temporary basis and where there is permanent post, the workers are made permanent. They have stated that even otherwise these acts do not constitute acts of unfair labour practice but at the best it might be a violation of any law which is cognizable by the Labour Court and not by this Court.
4. The respondents have also taken legal objection that for want of instances of unfair labour practice. The petition is not maintainable. They have also stated that joint application by the union and 4 persons who have been issued charge-shets is not maintainable.
5. I have heard the learned Advocate for the petitioners and learned Advocate for the respondents.
I have gone through the whole record and proceedings and the documents filed by both the parties.
6. The learned Advocate for the petitioners argued that the respondent-management is issuing threats to the petitioner-union and are also victimizing them due to their trade union activities.
They have given the names of those officers who have issued threats that in case they did not give up trade union activities, they will be dismissed or discharged from service.
7. On the other hand learned Advocate for the respondents argued that these allegations of petitioners are vague and general in type and they do not constitute any specific instance of unfair labour practice and therefore the said allegation cannot constitute acts of unfair labour practice.
He argued that to attract the jurisdiction of this Commission, the petitioners are obliged to give specific instance of unfair labour practice particularly those mentioned in section 15 of I.R.O., 1969.
According to him if no instances of unfair labour practice are mentioned, this case will go out of purview of this Commission. In this connection he has placed his reliance on a famous authority reported as PLD 1988 Supreme Court 53 in which it was observed that "Provision of section 22-B(3)
(a), therefore, does not confer a general jurisdiction upon Benches of Commission to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices." The learned Advocate for the respondents placed his further reliance upon Full Bench of this Commission reported as 2001 PLC 156 in which the Chairman of this Commission, Mr. Justice (Retd)
Zia Mahmood Mirza who headed the Commission made the observation that "Jurisdiction of National Industrial Relations Commission was confined only to cases of unfair labour practice and such jurisdiction was attracted only to the cases where management/employer in taking action against employees was motivated by any of considerations specified in S.15(1) of Industrial Relations Ordinance, 1969. Commission was not concerned with mere illegalities/irregularities of the action which was function of Labour Court acting under S.25-A of Industrial Relations Ordinance, 1969".
' The above authorities are applicable to the facts and circumstances of this case. The contention of the learned Advocate for the petitioners that the union and its office-bearers are being targeted is not correct. Proposed action is being taken against the petitioners Nos.2 to 5 who are- even not office-bearers of trade union. Had the respondents-management to victimize the trade union, they could have takcn action against their office-bearers but admittedly no action has been taken against any of the office-bearer. There is therefore, no question of victimizing the trade union or the petitioners due to trade union activities. Even otherwise the petitioners Nos.2 to 5 have not spelt out the instances of their acts due to which the management was annoyed with them and which promoted the management to take disciplinary action against them. The petitioners have taken refuge in the union of the petitioner but otherwise they have absolutely no case of unfair labour practice. The charge-sheets and show-cause notices have been produced by the petitioners which show that they have refused to abide by the fresh timings fixed by the respondents. It is sorry to say that only 4 persons were made the victim or wrath of the respondents but no other wort:er including office-bearer was targeted for their action. Had the management any or any grudge against the union, they would have taken action against office-bearers and not against those persons who are not concerned with the union. I am therefore, clear in my mind that respondents have not committed any act of unfair labour practice nor the petitioners have been able to spell out any act of unfair labour practice on the part of respondents. Mere general type of allegations without any instance will not constitute acts of unfair labour practice. On the above grounds the petition is not maintainable according to law.
8. Learned Advocate for the petitioners then argued that the respondents are openly violating the mandatory provisions of labour laws and therefore, they are guilty of unfair labour practice. To elaborate it he argued that the respondents unilaterally changed the timings of general shift, the respondents do not pay minimum wages to the workers, that respondents are not confirming the temporary workers although they have more than 9 months to 10 years service at their credit.
9. As against these arguments, learned Advocate for the respondents argued that these allegations of the petitioners do not constitute acts of unfair labour practice but at the best it might be violation of law. The violation of any law does not constitute any act of unfair labour practice.
' In this connection the learned Advocate for the respondents referred to the above quoted authorities reported in PLD 1988 Supreme Court 53 and 2001 PLC 156. In the last authority it was observed that Commission was not concerned with mere illegalities/irregularities which was function of Labour Court acting under section 25-A of the I.R.O., 1969. The contention of learned Advocate for the respondents has force and I agree with his opinion that violation of law does not fall within any clauses of sectiOn 15 of I.R.O. If there is any violation of law the union or the workers have the right to approach the Labour Court either individually under section 25-A or through union under section 34 of I.R.O. This Commission has no power to look into the legality of the actions of the respondents.
10. The learned Advocate for the petitioners then argued that false charge-sheets have been issued against petitioners Nos.2 to 5 due to their trade union activities and therefore, the respondents have committed acts of unfair labour practice.
' Again this argument has no force. It is the statutory right of the employer to initiate inquiry against any of his workers for supposed misconduct. This Commission cannot sit in appeal against the employer to hold that inquiry being conducted is illegal, in violation of any law or that charge sheet is false. This Commission will also not act as Inquiry Officer to give definite finding that charge framed against the workers is false. It is the function of the employer to hold such inquiry and follow the opinion of the Inquiry Officer. The learned Advocate for the respondents relied upon 2001 PLC 190 which is the judgment of Full Bench of Commission in which it was held that "Employer having initiated disciplinary proceedings, could take them to logical end and employees could not be permitted to frustrate/circumvent such proceedings by simply pleading victimization on account of trade union activities unless they placed on record sufficient material to show that action being taken against them was motivated by their lawful and legitimate trade union activities". In this case the petitioners Nos.2 to 5 are admittedly not office-bearers of trade union. There is therefore, no question that the petitioners are being proceeded in inquiry due to their trade union activities. On the basis of above authority it is the right of the employer to conduct inquiry against its employee for misconduct. Now it is for the Inquiry Officer to hold inquiry and give findings whether the charge is proved or not. This Commission is not concerned with internal inquiry being conducted by the employer.
11. The petitioners after filing the petition and after filing of comments by the respondents have filed affidavit-in-rejoinder of many persons but they are not relatable to the averments mentioned in the main petition and therefore, they are afterthought. Even otherwise these rejoinders will not alter the case or make any improvement in the petitioners' case. Learned Advocate for the petitioners has also filed an application for summoning the record from the office of respondents to prove that the petitioners are not being paid minimum wages but since, I have held that if there might be such violation of law, it is not cognizable by this Commission but it is cognizable by the Labour Court, hence that application is disposed of with the main case as having become infructuous.
' In view of above discussed facts, circumstances and law, I have come to a definite conclusion that the petitioners have failed to give any instance of unfair labour practice on the part of respondents, hence this petition is not maintainable. Since the main petition is not maintainable, petitioners are not entitled to any stay. Accordingly not only stay application but whole petition is dismissed accordingly.
Petition and .