' GHULAM NAUMAN SHAIKH (MEMBER).--- This is petition under section 22-A(8)(g) of the I.R.O., 1969 read with NIRC (P&F) Regulations, 1973 along with application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 supported by affidavit filed by the petitioner against the respondents.
2. The facts of the case as stated in the petition are that the petitioner is employed in the respondent establishment as Electrician Mechanic since 10-5-1997 in the Administration Department of the respondents. It is alleged that whenever the workers formed a union and get it registered, the respondents took steps to crush them as such none could succeed to gain the status of CBA in the respondent establishment. It is submitted that the union by name and style Shaheen Airport Services Hard Workers Union was also fOrmed and registered in the respondent establishment in August, 1998. It is alleged that a union already existing in the respondent establishment although got the CBA certificate, but was not allowed to pursue, as the respondents raised the plea that the Industrial Relations Ordinance, 1969 was not applicable to the respondents establishment. It is submitted that a petition was filed by the respondents against Shaheen Airport Services Hard Workers Union bearing No,4(174) of 1998 before single Bench at Islamabad, which in order, dated 6-8-1999 observed that provisions of I.R.O., 1969 were not applicable to the respondent establishment by reason of clause (a) of section 1(3) of I.R.O., 1969 as such the certificate of registration granted to the Shaheen Airport Services Hard Workers Union was held to be void and of no legal effect. This order was challenged by the Shaheen Airport Services Hard Workers Union in Appeal No,12(155) of 1999 before the Full Bench, who by order, dated 23-5-2002 set aside the order of singleMember/RITU, thereby leaving it to the respondent/employer if so advised to move RITU under section 10 of I.R.O. To file a complaint before the Labour Court to seek cancellation of registration of the appellant union. It is submitted that the petitioner joined Shaheen Airport Services Hard Workers Union by filling in membership form and paying necessary subscription on 25-5-2002, which annoyed the respondents. It is alleged that respondent No,2, the immediate incharge of the petitioner warned the petitioner that in the case he did not withdraw from his membership of the union, he would be removed from the employment, whereafter the respondents Nos. 3 and 4 also threatened him of removal from employment. It is submitted that on 12-7-2002 at 12-30 p.m. The petitioner was taking the tube-light chokes and his tools at Import Cargo Section to replace the chokes, which were not properly working that the security guard Shamraiz Khan snatched the tube-light chokes from his hands and told the Manager Administration that the petitioner had stolen the tube-light chokes. It is alleged that the security guard Shamraiz Khan involved the petitioner at the instance of respondent No,2. It is alleged that on the instruction of respondent No,2 security guard Naveed wrote something on the paper and the petitioner was compelled to sign on it without going through its contents. It is alleged that the petitioner was issued show-cause notice, dated 17-7-2002 on false allegations. He submitted his explanation and stated that he was being targeted due to affiliation with the trade union. It is prayed to declare the acts of victimization, pressurizing, and harassment on the pretext of false allegations to be acts of unfair labour practice and the respondents be restrained from taking any adverse action on the basis of such incident and not to dismiss, remove, terminate or transfer the petitioner.
3. On presentation of the petition by order, dated 7-8-2002 my learned predecessor passed interim prohibitory order, whereby the respondents were directed to maintain status quo in respect of employment of the petitioner with regard to show-cause notice, dated 17-7-2002 till the next date which continued from date to date and was confirmed by order, dated 8-2-2003 by my learned predecessor.
4. The respondents filed parawise comments with preliminary legal objections on maintainability of the petition and jurisdiction of the Commission. The respondents denied the allegation levelled by the petitioner in the petition relating to his victimization on account of his trade union activities. It is submitted that as per direction/findings of the Hon'ble Full Bench of NIRC in Appeal No,12(155)/99, the respondent No,1 filed Application No,20(3)/2002 under section 10 of the I.R.O., 1969 before the learned RITU(NIRC), thereby challenging the legality of the Shaheen Airport Services Hard Workers Union, which is pending as such no union activities legally can be carried out by the petitioner in the said trade union. The respondents stated that the petitioner has filed petition in order to avoid the enquiry and disciplinary proceedings initiated against him. It is submitted that after getting interim prohibitory order, dated 7-8-2002 from this Bench of Commission, the petitioner is deliberately and intentionally avoiding and delaying the enquiry by writing letters containing false allegations against the Enquiry Officer. It is submitted that statement of Shamraiz Khan against the petitioner was recorded on 1-8-2002 in the enquiry in presence of the petitioner and at his convenience the petitioner cross-examined him on 9-8-2002. It is alleged that the petitioner on one or the other pretext is delaying and avoiding the enquiry proceedings. It is submitted that the allegations of unfair labour practice made in the petition by the petitioner against the respondents are false and fabricated, as such the petition is not maintainable.
5. The petitioner filed his affidavit-in-evidence and he was cross-examined by Advocate for the respondents. From the side of respondents Walayat Ali Khan, General Manager Admn. Filed affidavit-in-evidence and he was cross-examined by Advocate for the petitioner.
6. I have heard arguments of Mr. M.A.K. Azmati, learned Advocate for the petitioner and Mr. S.M.
Yagoob, learned Advocate for the respondents and have gone through the petition, parawise comments, evidence adduced by the parties and the documents produced by them.
7. Mr. M.A.K. Azmati, learned Advocate for the petitioner has contended that the petitioner is employed in the respondent establishment and is member of Shaheen Airport Services Hard Workers Union, which was registered as industrywise trade union by the RITU. It is submitted that till today no complaint has been lodged with the Labour Court for cancellation of the registration of Shaheen Airport Services Hard Workers Union as such the union exists. It is contended that claim of the respondents that it is connected with armed forces and is a charitable institution as such it is exempted under the I.R.O., is incorrect. It is covered under Social Security Institution and EOBI. It is contended that Shaheen Foundation was created by a Trust, but the Shaheen Airport Services, which is subsidiary of Shaheen Foundation is an industrial and commercial establishment and the provisions of I.R.O., 2002 apply to it. It is submitted that Shaheen Airport Services does not carry any charitable work but does ground handling work at Airport. It is contended that head office of the.
Shaheen Airport Service is at Shaheen Complex, which is property of Shaheen Foundation. Shaheen Airport Services is tenant of Shaheen Foundation. The petitioner is member of Shaheen Airport Services Hard Workers Union and he is being victimized because of his joining the trade union. It is submitted that the petitioner had not stolen tube-light chokes but was taking the same to replace them. In support of his contention Mr. M.A.K. Azmati, learned Advocate for the petitioner has placed his reliance on 1988 SCMR 765, 1992 PLC 317, 1997 SCMR 66, 1997 SCMR 1307, 1992 PLC 405, NLR 1991 TD 32, 1992 PLC 189 and 1999 PLC 187.
8. Mr. S.M. Yaqoob, learned Advocate for the respondents has contended that Shaheen Airport Services pays monthly rent to the Shaheen Foundation for premises occupied in Shaheen Complex.
It is contended that all the income of Shaheen Airport Services so also rent paid by it goes to Shaheen Foundation which is created as Trust. It is submitted that no charitable institution or any foundation can survive without generating the funds. Shaheen Airport Services, the respondent is subsidiary of Shaheen Foundation and its earning goes to Shaheen Foundation so as to run it and achieve its objects. It is contended that as observed by the Honourable Full Bench of NIRC in Appeal No,12(155)/99 in its order, dated 23-5-2002, the respondent No,1 filed fresh application under section 10 of I.R.O., 1969 for cancellation of registration of Shaheen Airport Services Hard Workers Union bearing No,20(3)/2002 before the learned member/RITU, who vide order, dated 14-6-2003 held that Shaheen Airport Services Hard Workers Union had been registered in contravention of the provisions of the I.R.O., therefore, authorized the Deputy Registrar (R) to file a complaint before the Labour Court for cancellation of the Shaheen Airport Services Hard Workers Union. This order, dated 14-6-2003 of the learned Member/RITU was challenged in Appeal No,12(22)/2003 (2004 PLC 60) by Shaheen Airport Services Hard Workers Union before the learned Full Bench, NIRC, who by its short order, dated 23-10-2003 and detailed order, dated 4-11-2003 observed that the provisions of I.R.O.
Are not applicable to Shaheen Airport Services, therefore, upheld the order, dated 14-6-2003 of the learned Member/RITU and dismissed the appeal. It is submitted that against the order of Full Bench a writ petition No,105/2004 was filed in the Hon'ble Lahore High Court, Lahore, Rawalpindi Bench, which has been dismissed. The Shaheen Airport Services Hard Workers Union has not gone to Hon'ble Supreme Court of Pakistan against the order passed by the Hon'ble Lahore High Court, Lahore, Rawalpindi Bench, therefore, the order of Full Bench is final and binding on the single Bench.
It ,is contended that in almost all the cases filed against the respondents, the respondents have succeeded. It is contended that the petitioner with his petition has filed form of an application for the membership, dated 25-5-2002, which is one and half month prior to show-cause notice, dated 17-7-2002. It is manipulated. It is contended that the respondent does not know as to who is member of the trade union and who is not member of the trade union and as to which trade union any of the worker is affiliated. It is contended that there is nothing to show that the respondents have ever taken action against any of the office-bearer of the trade union as such the version of the petitioner that he was asked by the respondents to leave the trade union is incorrect. It is contended that had the version of the petitioner been correct that he is an active member of Shaheen Airport Services Hard Workers Union, then why he did not become office-bearer or member of the executive committee of the said trade union. It is contended that the petitioner in his cross-examination has admitted that he does not know as to who were the Vice-President and Finance Secretary of the union when he had tilled the form of membership. When he even does not know the names of office-bearers of the trade union, how the petitioner can claim that he is an active member of the trade union. He has contended that 12-7-2002 was Friday and the duty hours were up to 11-45 a.m. As stated by Walayat Ali Khan in his affidavit-in-evidence and tube-light chokes were recovered from the possession of petitioner on the said date at 12-30 p.m. After the duty hours by Shamraiz security guard. No question challenging this statement was put to the respondents' witness Walayat Ali Khan in his cross-examination by Advocate for the petitioner. The petitioner, therefore, cannot say that he was asking the tube-light chokes to replace the same. It is contended that plea of the petitioner that he was on overtime on that date is incorrect as the petitioner was not on overtime as no record of overtime of that date has been produced by the petitioner. It is contended that the petitioner has not denied recovery of tube-light chokes from his possession, but his version is that he was taking to replace the same. It is contended that a fair and impartial enquiry was held against the petitioner on the show-cause notice served on him, wherein, the charge was established against the petitioner and he was held guilty of the charge.
The enquiry proceedings and enquiry report have been filed by the respondents. It is contended that it is simple case of misconduct and it has nothing to do with any trade union activities of the petitioner and there is no element of unfair labour practice, as such the petition itself is not maintainable and NIRC has no jurisdiction to entertain this petition besides the fact that provisions of I.R.O. Do not apply to the establishment of the respondents as has been held by the Full Bench in its order, dated 23-10-2003 in Appeal No,12(22)/2003 (2004 PLC 60). In support of his contention Mr. S.M. Yaqoob, learned Advocate for the respondents has placed his reliance on PLD 1980 Lahore 658, PLD 1988 Supreme Court, 53, 1996 PLC 5, 1997 PLC 22, 2001 PLC 149, 2001 PLC 156, 2003 PLC 405 and 2005 PLC 88.
9. I have considered arguments advanced by Mr. M.A.K. Azmati, learned Advocate for the petitioner and Mr. S.M. Yaqoob, learned Advocate for the respondents. According to the petitioner he joined Shaheen Airport Services Hard Workers Union by filling membership form and paying necessary subscription on 25-5-2002, which the petitioner has filed with the petition as Annex.P/2. Except this membership form the petitioner has not produced any document that he was admitted as member of Shaheen Airport Services Hard Workers Union and he has also not produced any receipt of admission fee and receipts of other monthly subscription as member of the said trade union. Mere this form does not substantiate the claim of the petitioner that he became the member of Shaheen Airport Services Hard Workers Union and this caused annoyance to the respondents so much so that the respondents are alleged to have issued him show-cause notice, dated 17-7-2002. Neither in the petition nor in the affidavit-in-evidence any specific trade union activity or any instance of victimization on account of such trade union activities, has been stated by the petitioner. The petitioner is employed as Electrician Mechanic from 10-5-1997 and for five years he did not join any trade union but after five years he is said to have joined Shaheen Airport Services Hard Workers Union on 25-5-2002 by filling the form that also only one and half month before the date he was served with show-cause notice, dated 17-7-2002 alleging to have committed theft of tube-light chokes. In cross-examination the petitioner has admitted that he even does not know as to who were Vice-President and Finance Secretary of the union when he had filled the form for becoming member of the union. It shows that he had no active role in the trade union otherwise he would have certainly knowledge of the names of all the office-bearers of the trade union, so also the activities performed by them relating to the functions of the trade union. The petitioner also has admitted in cross-examination that he has participated in the enquiry and has cross-examined the witness of prosecution. He has also admitted that he has signed every proceeding of the enquiry. He also admitted that on Friday the office-timings were up to 11-45 a.m. However, he denied the suggestion that he had committed any theft of chokes and that he had not taken the chokes for the purpose of replacing in the tube-lights. It is now well settled that it is prerogative of employer to initiate disciplinary proceedings against delinquent worker and by holding fair and impartial enquiry to decide what action shall be taken against the worker when the charge of misconduct is proved, which cannot be interfered by this Commission.
Any such interference if it is called for regarding illegality or irregularity in the enquiry, it shall be within the jurisdiction of the labour Court to determine. Jurisdiction of NIRC is restricted only to victimization on account of trade union activities on the part of employer, falling within the purview of S.63 of I.R.O., 2002 amounting to an act of unfair labour practice and to prevent the same under the provisions as laid down under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973, but when the case is not within the ambit of unfair labour practice, the petition will not be maintainable and the NIRC cannot assume the jurisdiction as the petition will not be within its scope.
10. Even otherwise in respect of Shaheen Airport Services Hard Workers Union registered in the respondent establishment in case No,4(174)/98 filed by Shaheen Airport Services through its General Manager against Shaheen Airport Services Hard Workers Union, the learned member, NIRC, Islamabad in his order, dated 6-8-1999 had observed that I.R.O. Is not applicable to the Shaheen Airport Services, respondent by reason of clause (a) of S.1(3) of I.R.O., 1969 as such the certificate granted to Shaheen Airport Services Hard Workers Union was void and of no legal effect. This order was challenged in Appeal No,12(155)/99 before the Full Bench who by order, dated 23-5-2002 set aside order of the single Member/RITU and observed that the respondent if so advised to move RITU under section 10 of I.R.O. To file a complaint before the Labour Court to seek cancellation of registration of Shaheen Airport Services Hard Workers Union. Eventually the respondent management filed application under section 10 of I.R.O., 1969 seeking cancellation of registration of Shaheen Airport Services Hard Workers Union before the learned Member/RITU, who vide order, dated 14-6-2003 held that the management of Shaheen Airport Services has fully been able to disclose a prima facie case for the cancellation of Shaheen Airport Services Hard Workers Union to have been registered in contravention of the provisions of I.R.O. As such in exercise of powers conferred on him under section 58 read with section 12(1) of the I.R.O. Hereby authorise the Deputy Registrar (R) to file a complaint before the Labour Court for the cancellation of the Shaheen Airport Services Hard Workers Union. This order was challenged by Shaheen Airport Services Hard Workers Union before the Full Bench, who by short order, dated 23-10-2003 and detailed reasons recorded on 4-11-2003 dismissed the appeal filed by Shaheen Airport Services Hard Workers Union and maintained the order, dated 14-6-2003 of the learned Member/RITU. Against the order of Full Bench, dated 23-10-2003 writ petition No,105 of 2004 was filed by Shaheen Airport Services Hard Workers Union before Honourable Lahore High Court, Lahore, Rawalpindi Bench which was dismissed in limine vide order, dated 13-1-2004. There is nothing on record or any submission of Mr. M.A.K.
Azmati, learned Advocate for the petitioner that any appeal has been filed before Honourable Supreme Court of Pakistan against the order, dated 13-1-2004 passed by the Honourable Lahore High Court, Lahore, Rawalpindi Bench in writ petition No,105 of 2004. Since there is view taken by the learned Full Bench in Appeal No,12(22) of 2003 vide order, dated 23-10-2003 by upholding the order, dated 14-6-2003 of the learned Member/RITU that provisions of I.R.O., does not apply to the respondent establishment and Shaheen. Airport Services Hard Workers Union has been registered in contravention of I.R.O., as such directing the Deputy Registrar (R) to file complaint under section 10 of the I.R.O., 1969 before the Labour Court for cancellation of the Shaheen Airport Services Hard Workers Union, as such this Bench of Commission cannot take any contrary view till it is otherwise held by superior Court. All these contentions raised by Mr. M.A.K. Azmati, learned Advocate for the petitioner in the present petition regarding the applicability of I.R.O. To the respondent establishment, were also raised by him before the single Member/RITU who has repelled his contention in order passed by him on 14-6-2003 which was upheld by the Full Bench by order, dated 23-10-2003.
' For the aforesaid reasons this petition is not maintainable, hence it is dismissed.
' Announced in open Court.