' MUHAMMAD SHABBIR JAMAL (MEMBER).--- This order disposes of both these petitions which were linked together vide order, dated 17-12-2005. The Petition No,4A(64)/2004 filed under section 49(4)
(e) of IRO, 2002 alleges that the act of unfair labour practice has been committed by the respondents in respect of the petitioner who being Secretary-General of PSB Employees Union has been victimized for his trade union activities, by demoting him from the post of Assistant Accountant in BS-14 to steno typist in BS-12. It was contended in the subsequent Petition No,4A(05)/2005 also filed under section 49(4)(e) of IRO, 2002 that as a result of illegal demotion of the petitioner the respondent advertised on 10-1-2005 among other vacancies,, the post of Assistant Accountant, which was held by the petitioner before his demotion, to be filled through direct recruitment. The notice to the respondents was issued for filing written statement in the formal petition whereas the respondent management was directed in the latter petition not to fill the said regular vacancy earlier held by the petitioner till the disposal of the main petition. To the objection raised by the respondent with regard to jurisdiction of NIRC to hear this petition it was held by this Bench vide order, 17-1-2005 that NIRC's jurisdiction was not ousted in this case and to another objection concerning the limitation it was held for reasons recorded in the said order that the limitation did not apply to the instant case before NIRC as the same was not barred by limitation.
2. The facts briefly stated in the main petition i,e, Petition No,4A(64)/04 of the petitioner is the General Secretary of All Pakistan Sports Board Employee Union which is registered as industrywise union and also certified as Collective Bargaining Agent. It is contended that the aforesaid union was not accepted by the respondents since its registration and has remained exposed to chain of hazards at the behest of respondent No,1 to bring it into disrepute and harass its office-bearers and members in one way or the other. The chain of events alleged to be the result of unfair labour practice on the part of the respondents are stated to be the filing of application to RITU for cancellation of union's registration; in the event of dismissal of < the same filing of writ petition before Honourable High Court which was remanded to the Full Bench of NIRC and the latter upheld the registration of the union thereby protected CBA certificate of the union. It is also contended that as a result of internal election of the union held on 13-7-2004 under the supervision of NIRC the petitioner's group was declared successful and so he continued to be General Secretary of the CBA Union. It is further contended that during the election process of 2004, office-bearers of the Workers Group as well as Bani Group visited field formations of Pakistan Sports Board for the purpose of canvassing and mobilizing workers' support. It is stated that while the petitioner along with his associates including Noor Nawaz Khan, Senior Vice-President visited NSTCC Peshawar Branch of the Pakistan Sports Board on 19-6-2004, 13 workers-members handed over to the petitioner an application duly signed by them protesting against the highhandedness of the local Director as also deployment of Muhammad Sharif, Chowkidar, Muhammad Darvaish, Waiter, Habib Ullah, Mali on conservancy duty which was not only violative of their job requirement but also gravely hurt their religious sentiments generally and offering of prayers in particular.
3." It is also contended that while the local Director was appraised of the simmering labour situation, Noor Nawaz Khan and the local Director conversed with each other in Pushto, though the petitioner could not appreciate the tenor of their conversation it was discernible from their disposition subsequently that temper had risen and hot words were exchanged between them. It is further contended that although the petitioner had talked to the local Director in low profile, several allegations were levelled against him in the show-cause notice dated 2-7-2004 served under the Pakistan Spots Board Service Rules, 2000 to indicate as to why major punishment may not be imposed on him. It is stated that the petitioner submitted detailed reply to the aforesaid show- cause notice through proper channel. It is contended that in their anxiety to punish the petitioner no inquiry worth the name was held and instead of initiating proceedings under the Removal from Service (Special Powers) Ordinance, 2000 which had replaced the PSB Service Rules, 2000 in terms of sections 11 and 12 of the Ordinance, respondent No,1 imposed on the petitioner major punishment of demotion from the post of Assistant Accountant (BS-14) to his original post of steno typist (BS- 12). It is stated that the order of demotion does not indicate the period for which it will remain operative which is contended to be the violation of FR-29 of the Fundamental Rules and Supplementary Rules (Vold).
4. It is also contended that after the petitioner had submitted his reply to the show-cause notice, respondents Nos.1 and 3 exercised pressure on the petitioner to the effect that if the petitioner had expressed his regrets; the Director-General would wind up the proceedings. It is alleged that in haste respondent No,1 did not give opportunity of personal hearing to the petitioner. It is further contended that despite regrets were tendered, the petitioner was arbitrarily awarded major punishment of reduction in rank. It is further contended that the petitioner has been punished squarely for his trade union activities which the respondents have never relished since their inception in the Pakistan Sports Board.
5. Affidavits in evidence were filed by both the parties. The cross-examination of the witnesses produced before this Bench by the petitioner recorded their statements as under.
6. P.W.1 namely Muhammad Akram Bhatti stated that four elections of trade union were held until now. The present election was the fourth one and he won the election for three times. He stated it to be correct that D.G. PSB and other officers of the management had been participating in the oath taking ceremony of elected office-bearers of the trade union in all the elections. He further stated that when election was held by the order of the NIRC, the management provided place for it. He admitted that the management had provided them an office for trade union activities. He volunteered that they were provided office under agreement with the management. He termed it to be correct that in this office, facility of telephone had also been provided. He volunteered that the same was in accordance with the said agreement. He said it was correct that all steps taken by the management before the Registrar, NIRC or before Full Bench of the NIRC were in accordance with law. He told that he went to Peshawar on 19-6-2004 and met the employees of the Peshawar Centre. He clarified that he did not meet the employees freely. To the Court question that under what situation he went to Peshawar and met the employees, he replied that when we went to Peshawar, the environment was not free and this was his second visit. He told that in the first visit the employees had agreed for their support and in the second visit he found they were afraid of the local Director. He added that he did not make speech but held a corner meeting, in which he along with others had exchanged views. He told that in that corner meeting workers brought their problems to his notice. He said that they did not meet the Director in his office. He clarified that they met the Director in the corridor after the meeting. He told that he did not exchange hard words with the Director. He stated that the hard words were exchanged between Noor Nawaz Khan and the Director. He told that he did not understand the language because the exchange of words was in Pushto. He said it appeared from the faces of both Noor Nawaz Khan and the Director that they had exchanged hard words. He told that he stopped Noor Nawaz Khan to be impolite with the Director.
He said some of the workers were present at the time of exchange of hot words and some of the workers had gone. He added that the application appended to the petition as Annexure "HH" was written by him. He said the employees had signed that application. He stated it to be correct that the allegations levelled in the application were of personal nature. He said all employees signed that application in his presence. He stated it also to be correct that Mr. Habibullah, the employee of Peshawar Centre did not sign the application. He told that it was not in his knowledge that Abdul Latif was on leave. He volunteered that he knew some of the employees by faces but he did not know all the employees by name. He stated it to be correct that all the signatures on the application (Annexure "HH") were affixed in his presence. He told that Manga was one of these persons whom he did not know personally. He said it was not correct to suggest that he provoked the workers causing disturbance to the management. He stated that relations between management and employees were strained before his visit to Peshawar. He said it was not in his knowledge that the relations of the employees with the management became more strained after his visit to Peshawar. He stated that it was not in his knowledge that relation between management became from bad to worse. He said he tried his best to bring the relations between the employees and the management in cordial position at the trade union level. He told that the inquiry was held against Noor Nawaz Khan. He volunteered that it was not against him. He said it was in his knowledge that some of the workers appeared in that inquiry as witnesses. He said that he did not provoke the workers as observed in the findings of the inquiry nor he obtained their signatures on the application. He said he was not provided an opportunity of being heard in the DG Office. He said it was correct that in reply to show-cause notice he sent a letter to the department which was Annexure "K" to this petition to regret about unpleasant situation. He said he did not know that after consideration of the inquiry report he was served with the show-cause notice. He said it was correct that he was served with the show-cause notice. He stated it to be correct that he had signed the undertaking, the copy of which was annexed with the written statement as Annexure "D" at page 9. He told that despite that undertaking he had filed the present petition. He said they that undertaking was got signed by him under coercion. To the Court question that who had written the undertaking he replied that the undertaking was written by him under the dictation of Director E&C (Syed Ahmed Shah). He told that it was correct that on that undertaking the signature of Syed Ahmed Shah Director did not appear. He said it was incorrect that petition had been filed on false allegations.
7. P.W.2 namely Muhammad Sajid son, of Noor Muhammad, Chowkidar, National Sports Training and Coaching Centre, Peshawar stated that it was correct to say that he had written the complaint in his own handwriting whereas they had called upon Akram Bhatti Sahib and told him their grievances who had written and sent the same to the Director. He said he was Chowkidar in the establishment. He said his name was Muhammad Sajid. He stated that it was correct that affidavit was from Sajid Muhammad. He said application was read out to him after the same was written by Akram Bhatti Sahib. He told that he himself went to Akram Bhatti Sahib. He told that he went to Akram Bhatti Sahib along with other persons. He said they met at the stadium and he and Akram Bhatti met freely. He stated that he did not know whether Akram Bhatti and Noor Nawaz met the Director. He said he was required to do the work of cleaning the toilet. He volunteered that his mother was hospitalized. He said he applied for leave which was not granted. He told that he had added other grievance in the application in addition to what had been stated in the affidavit. He told that it was incorrect that he had affixed his signature on the complaint on the instigation of Akram Bhatti. He said it was not correct to suggest that Noor Nawaz had abused the Director. He stated that it was correct that atmosphere of the Centre was peaceful before the arrival of Akram Bhatti. He volunteered that at that time the atmosphere was very bad. He told that there was no relationship of the visit of Akram Bhatti with the worsening of the atmosphere at the Centre. He stated that the atmosphere had remained the same after Bhatti Sahib had left.
8. P.W.3 namely Muhammad Sharif son of Moazam Chowkidar National Sports and Coaching Centre, Peshawar stated that he was not illiterate person. He said he affixed his signature as he could also sign. He told that it was not only cleaning of toilet, besides he did number of other tasks which were assigned to him in addition to his duties as Mali. He told that cleaning of toilet was uncalled for because being a Muslim, his clothes were spoiled except this type of work was humiliating for him. He said he signed the complaint which was handed over to Akram Bhatti Sahib being representative of workers. He told that application was written by Akram Bhatti Sahib. He said there was no quarrel between Akram Bhatti, Noor Nawaz and the Director. He said rather Noor Nawaz and Akram Bhatti told the Director that such additional work should not be taken by elderly and Muslim employees. He said he had signed before Akram Bhatti Sahib. He stated that there were many complainants present at the occasion while he signed the application. He added Akram Bhatti Sahib did not make any speech at that time. He said the climate of the centre was bad even before the visit of Akram Bhatti Sahib. He stated that the climate remained the same after Akram Bhatti Sahib came there. He told that he was present in the Court at the time of statement of Muhammad Sajid witness. He said he had not been brought as witness by Akram Bhatti Sahib. He said he had come at his own to give the evidence as witness. He stated that he stayed near Chand Tara close to Yasmin Garden at the residence of his friend. He stated that he reached last evening (28-9-2005). He told that Akram Bhatti Sahib met him last night. He said he rather went to see Akram Bhatti Sahib and they met in the union office. He told that he met with Akram Bhatti Sahib in the presence of other men. He said all the witnesses who came from Peshawar met Akram Bhatti Sahib together. He stated that he was making this statement at his own. He stated that he signed himself but not on the persuasion of Akram Bhatti Sahib. He stated that it was incorrect that his affidavit and application were false.
9. P.W.4 namely Noor Badshah son of Fazal Rahim, Mali, National Sports Training and Coaching Centre, Peshawar stated that he was illiterate and did not know how to write. He said he had signed the application but did not affix his thumb-impression. He told that he recognized his signature on the affidavit and application. He stated that both the signatures were affixed by him and there was no difference. He told that the complaint was made to the Director-General in writing. He said that application was written by Akram Bhatti Sahib on his dictation. He told that he did not remember the date of application. He stated that he signed himself but not on the pursuance of Akram Bhatti Sahib. He volunteered that there were other grievances. He told that he did not know about any quarrel at the centre but it was heard that there was some exchange of hot words. He told that there was some exchange of views between Noor Nawaz and Director-General and not with Mr. Bhatti. He told that the application was signed after the same was seen by Mr. Bhatti. He stated that he signed the application in the presence of many others. He told that he knew Manga, Abdul Latif and Habibullah. He said grandson of Manga signed instead of Manga and the Habibullah signed before him but he had then resigned. He stated that Abdul Latif was on leave on that day. He stated it to be incorrect that he disobeyed the Director after Mr. Bhatti had left. He said he came from Peshawar last night. He told that he received a letter from the Court. He stated that he stayed with his friend in Islamabad. He said M. Sharif, Derwaish and he himself were together last night. He stated that Sajid did not stay with them. He said they together met Akram Bhatti Sahib last night.
He told that Bhatti Sahib did not instruct them to make a separate statement. He volunteered that he is making the statement at his own. He said he was sitting when the statement of Sajid was recorded but he could not smell what was happening. That statement, he stated, had been made at his own and not under the instruction of Mr. Bhatti.
10. P.W.5 namely Ghlshad Khan, Director National Sports Training and Coaching Centre, Peshawar stated that at present he was posted in the said capacity. He told that he was posted as Director National Sports Training and Coaching Centre, Peshawar at the time of incident dated 19-4-2004.
He stated that Noor Nawaz Khan and Akram Bhatti both came to him and they were not accompanied by any worker. He stated that it was incorrect that he reported to the Director- General that Nawaz had abused him to the presence of workers. He told that Noor Nawaz had exchanged hot words with him while Akram Bhatti was quite. He said that Mr. Akram Bhatti did not stop Noor Nawaz from abusing him because he was conversing in Pashto and Akram Bhatti did not know Pashto. He told that he did not remember who was present at the time of exchange of hot words. He said that it was correct that he was accused of steeling of a purse from a lady. He volunteered that, enquiry was held into allegation, which was set aside by the Federal Secretary as the same was not proved. He said that it was correct that he was demoted due to that allegation.
He told that it was incorrect that he was got involved in this case by the petitioner Akram Bhatti and his colleague workers which was pre-planned by them. He stated it was incorrect to suggest that he was appearing as a witness only to gain the sympathy of the petitioner. He said it was incorrect that any complaint filed by the petitioner in NIRC was in his knowledge. He told that it was not correct that he was making the statement in conflict with the report submitted to the Director- General, he only complained against Noor Nawaz.
11. The statement of P.W.6 namely Noor Nawaz groundman National Sports Training and Coaching Centre, Peshawar is reproduced below:-- "I have filed my affidavit in evidence which is marked as P.W.6 which bears my signatures correctly.
It, is not correct that I and Akram Bhatti met the workers in free atmosphere. It is correct that Gulshad Khan was Director of Peshawar Centre at that time. It is correct that on 19-6-2004 we straightaway met the workers. It is incorrect that neither I nor Akram Bhatti made any speech before the workers. It is correct that workers complained against Gulshad Khan Director of the Centre. When we were about to return to Rawalpindi, Gulshad Khan met us outside the Gymnasium. No workers were present at that time. We met the workers behind the hostel. It is incorrect that when we met Gulshad Khan I abruptly started abusing him. It is correct that I used bitter language. It is correct that Akram Bhatti was also present there. As Akram Bhatti did not know Pashto he had not understood what I had uttered, therefore, he did not stop me. After that Akram Bhatti wrote an application at the instance of the workers, which was signed by them. Manga had also signed the application. I do not recognize the names of Habibullah and Abdul Latif whereas I recognize them by face. I do not know whether Abdul Latif was on leave on that date as I do not recognize him by face. No enquiry was made against me. Voluntarily states that one sided inquiry was made. I did not give any statement before the Inquiry Officer as no inquiry was held. It was not an apology letter. We have signed on a blank paper given to the Director. It is correct that I had signed on the undertaking Exh.A.W.6/1 page 53 to the written statement, wherein we had undertaken not to contest or file any appeal against the decision of the Director-General PSB, Peshawar in disciplinary cases against us with regard to complaint made by Director NSTC Peshawar and we will abide by the orders of Director-General. It is correct that I and Akram Bhatti also signed. It is correct that my testimony is the same."
12. The respondent failed to produce any witness despite number of adjournments sought by him.
So their defence vide order, dated 15-6-2006 was closed. Both the petitions were argued on 1-7- 2006 and 24-7-2006. The learned counsel for the petitioner reiterated his contentions as contained in the pleadings. It was argued by him that hostility of the management against the petitioner is evident from these pleadings. It was argued that the petitioner was elected General Secretary of CBA Union who was initially elected as such in 1999' followed by the elections held in 2000. The visit of the petitioner to Peshawar, it was argued, was at the time when election was to be held in 2004 and so the incident at Peshawar Centre occurred due to the hostile and inimical attitude of the respondent management towards the petitioner. It was further argued that all other events such as issuance of show-cause notice with threat to impose major penalty on him etc. Had taken place, because management did not want the CBA leadership should work smoothly. It was contended that the impugned show-cause notice was not followed by Any inquiry. It was argued that the same was essential under PSB Service Rules, 2000 after the reply to the charge-sheet was given. It was further argued by the learned counsel that the inquiry was held against Noor Nawaz and the Inquiry Officer while giving his findings made some observations about the petitioner who was never associated with the inquiry. It was stated that the Inquiry Officer recommended major penalty against Noor Nawaz. It was further argued that it is ironical that despite the fact that no inquiry was held against the petitioner he was given major penalty in terms of reduction in rank from BPS-14 to BPS-12. The learned counsel stated that the infirmity arising from this inquiry was that the petitioner had been condemned unheard whereas he was penalized just on the basis of certain observations made against him in the inquiry report against Noor Nawaz. It was argued that for resolving controversial issues the recording of evidence was necessary. In this regard the learned counsel relied on the following judgments (a) 1993 SCMR 603; (b) 2004 PLC (C.S.) 312; (c)
2001 SCMR 1566. It was further argued that the opportunity of cross-examination must have been given before penalizing the petitioner. It was contended by the learned counsel that the procedure for a disciplinary action includes steps such as (a) service of charge-sheet; (b) holding of inquiry;
(c) supply of inquiry findings to the petitioner and personal hearing. He stated that all these steps are essential in the interest of justice. He argued that it was not so followed except the service of notice to show cause. It was stated that the show cause was given under PSB Service Rules, 2000 on 2-7-2004 by which time the Removal from Service (Special Powers) Ordinance, 2000 was already in force. It was argued that the former piece of legislation repealed all other disciplinary Rules etc. (Reference sections 11, 12). It was argued that in this view of the matter wrong application of law was exercised by giving the petitioner show-cause notice. It was further argued that the management had placed reliance on the undertaking given by the petitioner that he would not challenge this decision of the management. It was stated that this undertaking was given by the petitioner on the assurance verbally given to him that no action would be taken against him It was argued that the management itself did not honour its own commitment. It was further argued that any employee being jobless and in fear of being shown the door had no option but to accept and continue to act on whatever conditions the employees had been offered the employment. In this regard the learned counsel placed reliance on the judgment of the Honourable Supreme Court in 2005 SCMR 100. The learned counsel further argued that the principle of personal hearing now a days was applied as cardinal principle of jurisprudence more liberally even to cases in which there is no statutory requirement of personal hearing to substantiate his contention. The learned counsel in this connection cited the judgment in , the reported case 1997 PLC (C.S.) 817 which was decided by the Honourable Supreme Court. The learned counsel stated that the focus of his arguments was on the point that the petitioner had been victimized merely for the reason that he was the General Secretary of the CBA Union, and as such he was an irritant for the management. The learned counsel also referred to the statement of Akram Bhatti and of Muhammad Sajid as described in the above. He argued that the statement of Sajid supported their contention in the pleading. The learned counsel further argued that the statement of P.W.3, P.W.4 also supported their pleading.
The learned counsel also referred to the statement of Director Gulshad Khan as witness before the Court who also supported the Akram Bhatti's case. The learned counsel emphasized that all inquiry proceedings were held in the absence of the petitioner which cannot happen in view of the law laid down in the case; 1997 PLC (C.S.)69. It was also argued that if unfair labour practice was proved in case No,4A(64)/2004 it would also have direct bearing on case No,4A(05)/05. He argued that the filing of case 4A(05)/05 was to restrain the employer from depriving the petitioner of the post of Assistant Accountant in BS-14 from which he was illegally reverted. It was argued that if case 4A(64) was disposed of in one way or the other the case 4A(05)/05 would also be disposed of as both were connected matters. The learned counsel further argued that the degree of malice against the petitioner was there firstly by reverting him from BS-14 to BS-12 with the service of charge-sheet but without holding inquiry and secondly by advertising the post of Assistant Accountant to be filled by direct recruitment which again was in violation of promotion policy as the post was meant to be filled by promotees. It was contended that the petitioner was promoted by the management from BS-12 to BS-14 by order dated 25-8-1999. It was argued that he continued to hold this position uninterruptedly till 2004 when he was reverted. It was argued that the mere fact that he stayed in his position proved that the post was meant to be filled by promotion.
13. The learned counsel for the respondent argued that the allegation of unfair labour practice was not tenable. By responding to one of the contentions of the learned counsel for petitioner he argued that the respondents' act of invoking the jurisdiction of legal/judicial fora such as RITU, High Court, Full Bench of NIRC for cancellation of registration of trade union (which is a legal battle) did not constitute the act of unfair labour practice. The learned counsel referred to the cross- examination of Akram Bhatti and pointed out that there was contradiction in the affidavit filed by the petitioner and his cross-examination. It was contended that in the affidavit it was stated that the application containing the grievances was handed over to the petitioner whereas in the cross- examination the petitioner said that the application (Annexure "HH") was written by him and employees had signed that application, it was argued that this was contradictory. He argued that contradictory statement could not be relied upon. It was further contended by the learned Bench that instances of unfair labour practice as listed in section 63 of IRO, 2002 need to be proved. It was argued and contended that it was admitted by the petitioner in his cross-examination that elections used to be held for which management used to provide facility of telephone in the office which was used by office-bearers of the union. He argued that with this attitude it was incorrect to say that management had anti-union mind. It was argued that four elections were held and the petitioner was elected thrice as Secretary-General of the union. It was stated that DG PSB and other officers of the management had been participating in the oath taking ceremonies of the union. He argued that it showed that management had never been anti-union. He argued that in this background the management could not commit an unfair labour practice against the petitioner. It was stated that the petitioner was penalized for violating the rules. It was contended that in cross- examination it was admitted by the petitioner that in reply to show-cause notice he stated that he sent a letter to the Department which was Annexure "K" of the petition regarding the regret over the unpleasant situation. It was further argued that it was correct that the petitioner had signed the undertaking appended to the written statement as Annexure "D", which showed that he was heard and provided the opportunity to explain his position, but he had regretted and given the aforesaid undertaking. It was contended that after seventy days of the passing of demotion order the petitioner filed the petition which is blatantly time-barred. The judgment PLJ 2003 (Tribunal Cases)
282 was relied upon by the learned counsel to substantiate his arguments in this regard. It was further argued that that in the presence of section 2A of the Federal Service Tribunal Act the employees of the Corporation had to invoke the jurisdiction of FST and no other forum had jurisdiction. It was also argued that no unfair labour practice had been proved through evidence and mere on bald statement the case of unfair labour practice could not be established. Reliance in this regard was placed by the learned counsel on 2006 PLC 483. He argued that to initiate disciplinary proceedings and to take lawful action was the vested right of the employer regardless of trade union activities. In this regard the learned counsel cited the case-law; 2006 PLC 483 in support of his contention. It was also argued that annoyance of the management to punish the petitioner had no nexus with trade union activities and no instance thereof was proved through evidence. The learned counsel relied in this regard on the judgment 2003 PLC 344 and 2003 PLJ Tr.C.
282. The learned counsel for respondent also argued that relief claimed in 4A(05)/05 could be claimed in Petition 4A(64)/04 as all claims should be availed in one petition. In this regard the learned counsel referred to Order II, rule 2 of C.P.C. And case-law; 1990 MLD 2252. He argued that all points raised in case No,4A(64)/2004 were reiterated in case No,4A(05)/05. It was contended that advertising to fill a vacancy was the right of the management as the vacant post could not be kept vacant for long time.
14. The learned counsel for petitioner while giving arguments in rebuttal reiterated his contention that major penalty was given to the petitioner who was alien to the proceedings and minor penalty was awarded to Noor Nawaz in the shape of stoppage of increment, against whom the inquiry was conducted. He argued that this was an important and fundamental point to constitute unfair labour practice against the petitioner. He argued that this in the eye of law was obviously a predetermined victimization of the petitioner for no charge against him. He responded to one of the objections raised by the learned counsel for the respondent to the effect that relief claimed in Petition No,4A(05)/2005 could be claimed in the earlier Petition 4A(64)/2004. He argued that the reversion of petitioner took place on 24-7-2004 whereas the petition was filed on 28-9-2004. He argued that the post was advertised on 10-1-2005. He argued that it was beyond his comprehension that the post advertised in January, 2005 could have been disputed in 2004. He argued that the Case No,4A(64)/2004 was against the reversion of the petitioner whereas the Case No,4A(05)/2005 was filed with the pray to restrain the employer from filling the post from which the petitioner was demoted. He argued that the stay granted in the latter case does have a direct bearing on the former case. He further argued that the event that occurred in January, 2005 could not be pre-empted by the Court at time when earlier petition was filed. He argued that the contention of the learned counsel for respondent was not tenable. The learned counsel for petitioner further argued that the regret and undertaking by the petitioner that he would not go to any Court was to be weighed against the normal human behaviour. It was also pointed out by the learned counsel for the petitioner that the ACR of the petitioner placed in the case file was evident of the malice of the respondent as in the pen picture the respondent had clearly ' reflected his mind against petitioners' involvement in politics which the learned counsel contended was in fact respondent's criticism of petitioner's trade union activities. This pen picture was got inspected by this Bench in the presence of respondent's learned counsel.
15. In view of the above arguments of both the learned counsel, statements of witnesses and after having carefully gone through the contents of the case files I hold that the application (Annexure "HH") addressed to DG PSB by the workers of Peshawar Centre contains some grievances of the employees which merited consideration by the respondent management without any bias or reservation. The contents of the show-cause notice show that the charges levelled against the petitioner in fact are linked to the said application moved by the workers which is treated as a conspiracy prompted by the petitioner against the acting Director of the Peshawar Centre. Such show-cause notice does not appear to be in the spirit of good Industrial Relations, the parameters of which as laid down in the existing law of industrial relations and good practices of organizations for harmonious employer-employee relationship. Though the petitioner replied to the show-cause notice as at Annexure "J" denying the charges levelled against him, he seems to have been compelled to tender regret as at Annexure "K" because there could not be two replies to the show- cause notice. It is really shocking that despite this regret the petitioner was imposed major penalty without holding proper inquiry. Further it was pointed out during proceeding before me and also mentioned in the cross-examination particularly of one Noor Nawaz that an undertaking (Exh.A.W.6/1 page 53 to the written statement) was given by Noor Nawaz and the petitioner that they would not contest or file any appeal against the decision of the Director-General PSB in disciplinary cases against them with regard to complaint made by Director NSTC, Peshawar. I hold that such undertaking has no force in the eye of law as no agreement or undertaking can take away one's legal right to sue for legal rights. The arguments of the learned counsel of the petitioner has force that an employee being in a subordinate position and needy situation is compelled by circumstances to accept some time unfavourable conditions of service. Obviously this regret must be based on some verbal assurance of the management not to proceed against him. As earlier held it is re-emphasized that no undertaking whether verbal or in writing can take away ones right to invoke the jurisdiction of the Court of law. It was in the fitness of circumstances and time compulsion and not against the law to file Petition No,4A(05)/05 to protect the post of the petitioner from which he was demoted. The contentions of the learned counsel for respondent in this regard are de'void of any force. This situation by no stretch of imagination is covered by Order II, rule 2 of C.P.C. And the case-law cited by the learned counsel for respondent in this regard. It also looks bizarre to punish an employee for the finding against him contained in the inquiry report concerning some other employee. Law and justice demands that an independent inquiry must be held to probe into the F charges levelled against an employee. Despite the fact that the respondent management had provided office premises and telephone facility to the CBA union, it does not take away CBA's right to carry its activities in accordance with law. Practically, such facilities are provided under some agreement or on the basis of an understanding with the union. This is not the true test of the fact that the management has no anti-union stance. Management's long litigation, though in vain, to get the union's registration cancelled shows its bent of mind towards trade unionism. A normal grievance application to the D.G. Was termed as a conspiracy and if so then what more tolerance could be expected from the respondent on the issue of trade union activities or on resolving workers problems amicably. The pen picture in the ACR of the petitioner is also clear indication about actual mind of management which obviously does not appreciate trade unionism by workers. In organizations where management does not like unions by heart goes with it so long as union toe the line of the management. Any difference on the part of workers in such organization is often treated as insubordination on their part. The instant petitions that were argued before this bench cast reflections on such a state of affairs. Trade unionism is a democratic right universally recognized and also protected by the Constitution of Islamic Republic of Pakistan, 1973. It is based on the principle of checks and balances and in the existing law of industrial relation this system of checks and balances is provided under sections 63 and 64 thereof on the part of both the employers and workers. Trade unionism in true spirit is an institution of tolerance and problems resolving. It must be taken in that spirit.
16. Furthermore, no evidence produced by the respondent stated anything against the petitioner whereas no witness was produced by the respondents. The objections of maintainability and limitation, as stated in the above, have already been disposed of by the detailed order, dated 17-1- 2005 of this Bench. The judgment of the Honourable Supreme Court on section 2A of the Federal Service Tribunals Act, 1973 announced on 27-6-2006 fortifies NIRC's position to entertain and determine the case of unfair labour practices.
17. The case of the petitioner on all fours falls under section 49(4)(e) read with section 63(1)(c) of the IRO, 2002. While I do not want to dilate on technicalities and frivolous objections raised by both the learned counsel, I hold that the demotion of the petitioner G obviously is due to the malice developed by the respondent against him for his involvement in trade union affairs. The impugned order, dated 24-7-2004 based on mala fides is, therefore, set aside and his petition in Case No,4A(64)/04 is allowed. The case No,4A(05)/05 is also disposed of accordingly.