' QAZI AHMED SAEED, MEMBER---This petition has been filed by Saqib Zubair Lodhi Telephone Operator, International Gateway Exchange PTCL, 7th Road, Satellite Town, Rawalpindi against Pakistan Telecommunication Company Limited through its General Manager, Overseas Telecom Region PTCL G-8 Markaz, Islamabad and two others under section 22-A(8)(g) of I.R.O. 1969 on 19-8- 2000 with the prayer that the respondents be directed not to act against the law and spirit of the order dated 20-6-2000 passed by the Single Bench of this Commission in Case No,4A(189)/97 and also to withdraw the show-cause notice dated 15-8-2000 which militates against the aforesaid order and not to terminate, dismiss or discharge or otherwise punish the petitioner for his legitimate trade union activities.
2. Briefly stated, the case of the petitioner as set out in the petition as follows:--
(I) that the petitioner joined the erstwhile T&T Department (Now PTCL) as Telephone Operator on 16-9-1989 and was holding the post of Regional Deputy General Secretary, PTCL Lions Staff Union, OTR, Islamabad. It is alleged that the petitioner as Regional Deputy General Secretary has always played a pivotal role in mobilizing the workers support for the said union.
(II) that consequent upon the petitioner active participation in the trade union activities, he has on several occasions faced occupational hazards in the form of servant warning letters issued by the respondents management on flimsy grounds which could not be sustained. Enumerating the cases of annoyance of the management, the petitioner has submitted that he had filed three cases i,e, Case No,4A (198)/97, 4A (117)/98 and 7 (101)/98 against the respondents management before this Commission which were disposed of with the following observations by the Commission.
(a) Case No,4A (189)/97.
"Counsel for the respondent contended that the respondent-Company has got no intention to dismiss, discharge or victimize the petitioner until and unless he does not violates the office discipline or does not commit the misconduct. , Petitioner undertakes that he will abide by the office discipline and will perform his duties to the entire satisfactions of the respondent-Company"
(b) Case No,4A(117)/98. "It was mutually agreed between the petitioner and the respondents that the petitioner will apply to the respondents for resolving his grievances and the respondents will consider them sympathetically."
(c) Case No,7 (101)/98. "The contempt proceedings were closed on the assurance given on behalf of the respondents-Company that the grievance of the petitioner for payment of back-benefit will be decided within three months positively.
(Copy of the aforementioned petition along with orders passed by the Single Bench, on 20-6-2000, 24-5-2000 and 20-6-2000 are at Annexure 'A', 'B' and 'C' respectively.)
III. That the respondents Nos.2 and 3 called upon the petitioner to dissociate himself from the PTCL Lions Staff Union and particularly the petitioner's allegiance and association with Mr. Iftikhar Haider Jhatla Central Vice-President of the PTCL Lions Staff Union. It is next alleged that the management is inclined to favour the rival union, i,e, PTCL Employees Union.
IV. That in contradiction to the assurance given by the management in Case No,4A (189)/97, the petitioner has been served with a show-cause notice dated 15-8-2000. Which relates to the so- called lapses on the part of the petitioner for the period January-April, 2000. It was alleged that the show-cause notice was issued in order to bring pressure upon the petitioner, to dissociate from the Lions Staff Union and extend support to the PTCL Employees Union. It was further contended that the impugned show-cause notice is violative of the assurance given in Case No,4A(189)/97 and the manner in which the petitioner is being victimized militates against section 15(1)(d) of I.R.O.
1969. It was prayed that the respondents management be prevented from committing acts of unfair labour practice and be directed to withdraw the impugned show-cause notice and not to terminate, dismiss, discharge or otherwise punish the petitioner due to his legitimate and lawful trade union activities. The petitioner also requested that the management be directed not to act against the spirit of the order dated 20-6-2000 passed in Case No,4A(189)/97 by the Commission.
3. The then learned Member Mr. Abdul Sattar Khan vide his order dated 22-8-2000 issued an ad interim order, directing the respondents that:- "In the meanwhile, no adverse order shall be passed against the petitioner till the next date."
4. The respondents while filing their written statement and reply to the stay application have resisted and vehemently opposed the petition by raising inter alia certain preliminary legal objections as to the maintainability of the petition and jurisdiction of the Commission including an objection that being an employee of PTCL, the petitioner has become civil Servant under section 2A of the Service Tribunal Act, 1973 and thus the Federal Service Tribunal has the exclusive jurisdiction to deal with the case of the petitioner because it relates to the terms and conditions of service. On merits the respondents also controverted the allegations made by the petitioner and contended that the petition is misconceived and filed under the false pretext of allegation of Unfair Labour Practice. The respondents while controverting all the facts pleaded by the petitioner, have contended that the allegations were false, fabricated, concocted, baseless and scandalous and the petitioner is habitual trouble maker and responsible for polluting the peaceful working atmosphere and since his appointment he was found misbehaving with the subscribers and his officers/seniors and demonstrated rude behaviour. He has misused International Circuits a number of time and, has caused huge losses to the national exchequer. The petitioner has been abusing the process of law and instead of obeying his departmental authorities he has always malafidely preferred to file misconceived petitions before NIRC under the false pretext of unfair labour practices. As regarding filing of Petition No,4A(189)/97 it was stated that until and unless the petitioner would not violate office discipline he will not be proceeded against and no assurance was given that the respondents will not proceed against the petitioner for the misconduct committed by him in the past or to be committed in future. It was further stated that the petitioner was given enough opportunity to prove his performance, behaviour and discipline but he paid no heed to all such instructions and warnings. It was specifically submitted by the respondents that the aforementioned Petition No,4A(189)/97 has nothing to do with the show-cause notice impugned in the instant petition. As regards Case No,4A(117)/98, it was contended that while contesting the said petition, the respondents had taken the plea that the said petition was misconceived and the petitioner cannot claim the night shift or change in his duty hours according to his choice. The Commission has therefore vacated the stay, directing him to take-up his grievance with the respondents as change of duty hours/shift do not fall within the ambit of unfair Labour practice. The aforesaid contention of the respondent was acceded to by the Commission while disposing of the said petition. Regarding Case No,7(101)/98, the respondents have submitted that this case was also disposed of on the objection of the respondents that without exhausting alternate remedy, the petitioner could not file the petition. The petitioner was therefore directed to approach the General Manager for redressal of his grievance. All the allegations made in the petition were denied as false and baseless and it was contended that the impugned show-cause notice was issued on the allegations of gross misconduct and misusing of the International Circuit, causing losses to the national exchequer particularly during the period from 12-1-2000 to 9-4-2000.
It was further contended that the petitioner had been careless and negligent towards his duties and also disobeyed, misbehaved and even abused his seniors/officers for which he was served several explanation letters. The respondents have also submitted service history of the petitioner which is at page 53 of the file along with a statement of revenue losses caused by the petitioner to PTCL by misusing of C-II facility. The explanation letters served upon the petitioner have also been enclosed with the written statement.
5. After hearing arguments on stay application, the then learned Member Abdul Sattar Khan vide his order dated 2-2-2001 has dismissed the stay application with the following observations:-- "It is inherent right and prerogative of the employer to issue show-cause notice to his employee found guilty of misconduct. An employee cannot take shelter of his/her trade union activities to avoid issuance of show-cause notice/charge-sheet. Even otherwise the trade union activities or being an office-bearer of a union would not give a licence to an employee to do whatever he likes and if this petition is allowed it would be impossible for the employer to maintain discipline in the establishment. A worker cannot circumvent the right of an employer by coming up with bald allegations of victimization and unfair labour practice.
6. Both the parties adduced their evidence. The petitioner filed his affidavit in evidence in support of his contention. He was cross-examined by the learned Counsel for the respondent. In his affidavit in evidence, he corroborated the contents of his petition and asserted that he is being victimized due to his active participation in the activities of Lions Staff Union and more particular because of his affiliation with Iftikhar Haider Jhatla Central Vice-President. But strange enough that he has not produced the said Iftikhar Haider Jhatla as witness to corroborate his assertion. In nut shell, the petitioner has tried to establish the element of unfair labour practice that the impugned show- cause notice was issued on account of his trade union activities which amounts to an act of unfair labour practice as envisaged under section 15 of I.R.O.
1969. However in his cross-examination he admits that all the three Petitions No,4A(189)/97, No,4A(117)/98 and No,7(101)/98 have been disposed of and that no specific order was impugned in the said Petition No,4A(189)/97. As regards the Petition No,4A(117)/98, he admitted that he had filed the said petition with the prayer that since he was performing night duty, therefore he may not be posted in the morning/day shift. While about the Petition No,7 (101)/98, he admitted ihat it is correct that the Single Bench directed the petitioner to first move application to the General Manager OTR for redress of his grievance. He further admitted that he has not mentioned about his active trade union activities in his petition.
7. With reference to the allegations against the petitioner, learned Counsel for the respondent put a question to the witness and he admitted that there is an allegation against him that he had connected international calls of Canada, Saudi-Arabia and America but feed the code for Iran in the Circuit. He further admits that he was issued warning by the Assistant Engineer Traffic (Admn.)
International Gateway Exchange Islamabad vide warning letter dated 11-6-1999 that he had booked a bogus call and changed the console position but he denied that the allegation was correct. He also admits that the explanation letter dated 16-10-1995 was served upon him on the basis of a similar allegation. He also admitted that on 16-6-1996 a complaint was made against him by S.M. Tufail and Fayyaz Shahid Engineering Supervisors with the allegation that he was busy in conversation with some lady on Console No,268 by leaving his own Console and that he misbehaved with them. He further admits that on 13-7-1996 a complaint was made against him by the Divisional Engineer Technical that by misusing his O.P. No,823 (position No,211) he had made a Bogus call for Germany and caused a loss of Rs,859 to the management. However he denied the factum of the allegations and stated that the captioned amount was recovered from him. He denied that an explanation dated 5-3-1997 was served upon him regarding his rude behaviour with a lady on 26-2-1997 however he admitted that explanation dated 7-3-1997 issued by Aslam Baig Assistant Engineer was served upon him with the allegation that he was rudely behaved with a subscriber and was carelessly attending the calls.
8. There were certain other explanation letters in respect of several allegations against the petitioner but I do not want to write down the same as the petitioner has admitted the same in his cross-examination, however he denied the allegation about his utterance wording allegedly used by him in respect of his posting in the morning shift. Similarly he also denied the complaint dated 15-5-1998 made by Syed Zia Hussain Shah Engineering Supervisor that he abused him of his mother.
9. A perusal of the cross-examination would show that a long list of allegations exists against the petitioner that he has committed irregularities in his duty, misused his position and misbehaved with the customers as well as with his senior Officers, which could prove that his attitude towards his officers and public (customers) was not proper and if these allegations are correct then he had misused the N.I.R.0 to save him from the final action rather than committing acts of unfair labour practice by the management as alleged by him.
10. On behalf of the respondents, the witness Shehzad Safdar, Divisional Engineer (Admn.)
International Gateway Exchange Islamabad has filed his affidavit in evidence. He was cross- examined by the learned Counsel for the petitioner. Along with his affidavit in evidence he has 'submitted a statement of allegations (Annexure A) and asserted that the petitioner was served with a show-cause notice dated 15-8-2000 on the basis of the allegations mentioned therein.
Substance of the allegations against the petitioner include gross-misconduct, corruption and misusing of his position by connecting calls to Oman, Canada, South Africa and USA etc. And feed the code of Iran to extend financial benefits to the subscriber for his ulterior gains. Copy of the warning letter/Explanation issued from time to time by the respondents management to the petitioner on the allegations of bogus calls and other irregularities are annexed with the affidavit in evidence (Annexures C to V), but for the sake of brevity the same are not reproduced in this order.
However a perusal of the same would show that in order to save him from the disciplinary action, the petitioner had moved the earlier three petitions on the allegation of unfair labour practice before this Commission.
11. In his cross-examination the respondent witness Shehzad Safdar admitted that the petitioner was proceeded against under the Government Servants (Efficiency and Disciplinary) Rules 1973 as adopted by the P.T.C.L. He further admitted that on the basis of the allegations Nos.2,3,5,6,7,8,10,11,14,18 and 19, disciplinary proceedings were initiated against the petitioner.
However he did not remember whether or not any inquiry was constituted against the petitioner.
However, he can produce the same on the next date of hearing. The witness denied the suggestions made by the learned Counsel for the petitioner that the explanation of the petitioner was found satisfactory. The witness however admitted that except the warnings issued to the petitioner from time to time, no major penalty has been imposed against him by taking a lenient view. The witness also denied the suggestion that the petitioner was the Regional Deputy Secretary General of PTCL Lions Staff Union OTR, Islamabad. He admitted that BPS-11 was given to the petitioner on the basis of his higher education.
12. Arguments were heard. Learned Counsel for the petitioner while justifying filing of the instant petition under section 22A(8)(g) of I.R.O., 1969, on the ground of unfair labour practice, has contended that the impugned show-cause notice is illegal, without any substance and also violative of the assurance given by the respondent management in Case No,4A(189)/97 and the manner in which the petitioner is being victimized militate against section 15(1)(d) of I.R.O., 1969. He further contended that the petitioner apprehends commission of more acts of unfair labour practice including the petitioners dismissal, discharge or removal from service. He further contended that the petitioner is an active member and officer-bearer of PTCL Lion Staff Union and due to his trade union activities he was victimized by the respondents and they are bent upon to eliminate the petitioner from service on one pretext or the other. He further contended that the impugned show-cause notice is violative of Standing Order 15 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the applicability of the Government Servants (Efficiency and Disciplinary) Rules, 1973, to the workers of the respondents- Company is misconceived and thus the impugned show-cause notice is illegal and against the law. In support of his contention, learned Counsel for the petitioner has placed reliance on the decisions reported in:-- I. 2000 PLC (C.S.) 796.
II. 1999 PLC 57.
III. 1999 PLC (C.S.) 208 IV. 2002 PLC (C.S.) 526.
V. 2002 PLC (C.S) 1106 VI 1994 SCMR 2232.
VII 1984 PLC 1203 VIII.1999 PLC 93.
13. 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 22A (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 in evidence, the petitioner has submitted that he is an active member and office-bearer of PTCL Lion Staff Union and due to his lawful trade union activities he has been victimized by the respondents which amounts to unfair labour practice. Arguments of the regiments in rebuttal to the assertion of the petitioner were that the petitioner has failed to point out any specific trade union activity as mere membership or office bearership of the union does not bring the case within the mischief of section 15 of the I.R.O., 1969. It is further contended that in his cross-examination the petitioner admitted that:-- "I have not mentioned about any trade union activities in my petition."
' Learned Counsel for the respondents has further contended that the petitioner in his affidavit in evidence has stated that he is being victimized due to his active participation in the trade union activities and more particularly because of his affiliation with Iftikhar Haider Jhatla Central Vice- President of the union, but he has not produced said Iftikhar Haider Jhatla to corroborate his assertion. 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 happened to be a member or office-bearer of a trade union and thus 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 respondents 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 section 15 of the I.R.O., 1969.
14. 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, but 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 that he is a member and office-bearer of PTCL Lion Staff 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 him. Thus in the absence of any cogent evidence, it cannot be believed that the petitioner was victimized by the respondents, therefore issuance of the impugned show-cause notice to the petitioner cannot form basis for holding that the respondents committed an act of unfair labour practice. Accordingly 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 the impugned show-cause notice which was issued on the allegations of misconduct, corruption and misusing of his position etc. 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 allegation of unfair labour practice.
15. In this view of the matter while determining whether an unfair labour practice has been committed or not, the allegations that the disciplinary proceedings i,e, show-cause notice 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 show- cause notice was issued by way of unfair labour practice as defined under section 15 of the 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 his 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, the 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 provisions of law provides redress of grievance as 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 its jurisdiction as cited under section 22-A(8)(g) of I.R.O., 1969.
16. In view of what has gone above, it follows that to proceed with the disciplinary proceedings, is an exclusive domain of the employer and unless there is a streak of unfair labour practice and the disciplinary proceedings are being used as a cover for an unjustified action, victimization and unfair labour practice, the Commission would have no jurisdiction to go into regulating or otherwise of the disciplinary proceedings. To take disciplinary proceedings against any employee is the vested right of the employer and the Commission have no jurisdiction to interfere, however, if an action of the management is found to have been initiated by way of victimization or unfair labour practice, the Commission will then have the jurisdiction to interfere with the proposed action otherwise jurisdiction of the Commission is completely ousted, because the assumption of jurisdiction by the Commission is depended upon prima facie elements of unfair labour practice.
17. As discussed above, on a minute examination of the pleadings of the parties and their respective versions, I find that the petitioner failed in proving that on account of his trade union activities the impugned show-cause notice dated 15-8-2000 and other explanation letters/warning letters ware issued by way of unfair labour practice as defined under section 15 of the I.R.O., 1969. He has failed to quote any specific instance of his lawful trade union activities. He also failed to establish that he has been victimized because of his affiliation with Iftikhar Haider Jhatla Central Vice-President of the petitioner union, but has repeated his allegations of being victimized due to his trade union activities, thus mere bald allegations of unfair labour practice are not sufficient to prove victimization and make amenable for interference by the Commission. In this circumstances the relief prayed for cannot be granted and the petition is hereby dismissed. Parties are directed to bear their own costs. File be consigned to record.