' This is petition under section 49(4)(e) of Industrial Relations Ordinance, 2002 read with N.I.R.C.
(P&F) Regulations, 1973 along with an application under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973 supported by affidavit filed by petitioner against the respondents.
2. The petitioner is employed in the respondent-Establishment as officiating Senior Receptionist. He is Joint Secretary of the Inn People's Workers Union Airport Hotel, which was Collective Bargaining Agent in the respondents-Establishment till 27-4-2006, when another Union, namely, the Progressive Workers Union Airport Hotel became Collective Bargaining Agent. Thereafter the respondents started discriminatory attitude towards the office-bearers of the Inn People's Workers Union Airport Hotel. The petitioner was suspended and was issued show-cause notice although he was not involved in embezzlement and did not commit any misconduct. He submitted his reply.
The petitioner then was served with notice of enquiry and the respondents initiated enquiry proceedings against the petitioner to victimize the petitioner in the employment. Hence this petition with prayer to stop the respondents from passing any adverse action against the petitioner on the basis of show-cause notice.
3. On presentation of petition interim prohibitory order was passed on 4-11-2006, thereby meanwhile the respondents were restrained from terminating, removing, suspending or passing any adverse action to the employment of petitioner on the basis of show-cause notice dated 10-7- 2006 till the next date, which continues till this date.
4. The respondents filed reply statement and counter-affidavit. The respondents have raised legal objection regarding jurisdiction of the Commission. It is denied that after referendum held on 27-4- 2006, wherein another Union, namely the Progressive Workers Union Airport Hotel, having been certified as Collective Bargaining Agent, the respondents had adopted discriminatory attitude towards the office-bearers of the Inn People's Workers Union Airport Hotel. It is denied that the petitioner was not involved in embezzlement and did not commit any act of misconduct. It is submitted that one of the customers submitted complaint, in consequence whereof action was initiated and show-cause notice was issued to the petitioner. It is submitted that Enquiry Officer conducted enquiry, wherein the petitioner participated. After completing the enquiry, the Enquiry Officer submitted his report, holding the petitioner not guilty primarily on the ground that on the Invoire No,227566, where two different timings were mentioned in its original and carbon copy, the petitioner had denied that it was in his handwriting and the Enquiry Officer had no means to ascertain the handwriting. Therefore, the Management sent the document for comparison to the Handwriting Expert and the Handwriting Expert on 18-12-2006 gave an opinion that the alleged writing on the document is in handwriting of the petitioner. Report of Handwriting Expert has been filed with reply as Annexure "D". Consequently the petitioner was issued second show-cause notice on 29-12-2006 filed with reply as Annexure "E". The petitioner submitted his reply to second show- cause notice filed with reply as Annexure "F". It is denied that the respondents are committing any act of unfair labour practice.
5. The petitioner filed his affidavit-in-rejoinder.
6. Mr. M.A.K. Azmati, learned Advocate for the petitioner has contended that the petitioner is Joint Secretary of the Inn People's Workers Union, Airport Hotel, which was C.B.A. In the respondent- Establishment till 2006, when referendum was held and then Union, namely, Progressive Workers Union Airport Hotel became the Collective Bargaining Agent. It is submitted that Management of the respondents issued charge-sheets/show-cause notices to various office-bearers of the Union of the petitioner including its General Secretary Muhammad Yamin, but in enquiry report misconduct was not proved against him. Even Muhammad Yamin, General Secretary was promoted, so as to oust him from the Union. Another office-bearer Muhammad Anwar was issued charge-sheet of having misappropriated two Lakhs, but the said charge-sheet was withdrawn. It is contended that the petitioner is served show-cause notice regarding misappropriation of amount and is being discriminated, as the Management has ignored allegations of Lakhs of rupees against other office-bearers and even promoted them, whereas is not ignoring the thousands alleged against the petitioner.
7. Mr. Shahid Anwar Bajwa, learned Advocate for the respondents has contended that one of the customers of the respondent hotel had submitted complaint, which has been produced with reply as Annexure "A". In the complaint it was alleged that one of the employee of hotel committed fraud with him. The complainant did not name the employee, who committed fraud with him. However, in enquiry proceedings, it revealed that on 27-6-2006, which is the date of alleged fraud, the petitioner was on duty. The question under the enquiry proceedings mainly was as to who had written the invoice and mentioned two different times of departures one as 1530 hours on 27-6- 2006 on its original and another as 0800 hours on 27-6-2006 on its carbon copy. It is submitted that after 12 O'Clock noon full rent for another day is to be charged. It is submitted that the petitioner admitted that he had prepared the receipt. It is submitted that the Enquiry Officer could not say whether the departure time is carbon copy was changed by the petitioner, as the petitioner in cross-examination had refused to have done so. It is contended that in the circumstances to know as to who had changed the departure time in carbon copy of invoice, the respondents sent the disputed document to Handwriting Expert along with admitted handwriting and signature of the petitioner and Handwriting Expert opinion has been filed with reply as Annexure "D" giving finding that it was in handwriting of Mr. Izhar Ahmed petitioner. It is submitted that after Handwriting Expert opinion, the petitioner was served with second show-cause notice dated 29-12-2006 enclosed therewith report of Handwriting Expert, dated 18-12- 2006. In reply to second show-cause notice the petitioner has not stated that Handwriting Expert opinion is wrong. Lastly it is contended that industrial dispute is not pending, as such no interim relief can be granted.
8. In reply to arguments of Mr. Shahid Anwar Bajwa, learned Advocate for the respondents, Mr. M.A.K. Azmati, learned Advocate for the petitioner has contended that there is no provision of Standing Order 15(4) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 that after concluding enquiry, Management can seek an opinion from Handwriting Expert, as such report of Handwriting Expert has no legal value.
9. I have considered arguments advanced by the learned Advocates for the parties and have gone through the record.
10. There are general and bald allegations. The petitioner has not stated as to what trade Union activities he was performing, which could have caused annoyance to the management of the respondents so as to level false accusation against him. The principle office-bearers of the Inn People's Workers Union Airport Hotel are General Secretary and President. There is nothing on the record to show that the respondents had taken any adverse action against them as an act of victimization on account of their trade Union activities at instance of another Union, namely, the Progressive Workers Union Airport Hotel, then why the respondents will choose to target the petitioner, who claims to be Joint Secretary, lower in rank than President and General Secretary of the Inn People's Workers Union Airport Hotel. According to show-cause notice dated 10-7-2006 (P.4) a guest, namely Abdul Waheed checked in at 0800 hours on 6-7-2006 and wrote a complaint in Guest Complaint Book that on 26-6-2006 he and Mr. Aftab Ahmed checked-in at 0530 hours and paid advance rent of two rooms amounting to Rs,6,000. Further as alleged by guest Abdul Waheed he paid Rs,8,500 on 27-6-2006 but the petitioner issued Receipt No,1809 for only Rs,850 in the name of Mr. Aftab Ahmed and on original Invoice No,227566 wrote departure time as 1530 hours and on carbon copy 0800 hours, whereas as per departure time on original invoice two days room rent was to be collected, which the petitioner did so, but receipts for one day room rent was issued. The second day room rent amount though collected by the petitioner from the guest, but he did not deposit with the company. It is prerogative of the employer to initiate disciplinary proceedings against the delinquent employee and take it to logical end. This right of the employer cannot be curbed or curtailed because the employee happens to be an office-bearer of the trade Union. So far on the record prima facie there is no material to show that the respondents are victimizing the petitioner on account of his trade Union activities. No doubt the Enquiry Officer in his report has given his finding that charges as alleged against Mr. Izhar Ahmed vide show-cause notice dated 10-7-2006 are not fully proved and he is not found guilty for committing the alleged act of misconduct as alleged in the show-cause notice dated 10-7-2006, but it appears that the respondents had considered appropriate to seek opinion from Handwriting Expert regarding examination of questioned digits appeared on Invoice No,227566. Report of Handwriting Expert has been filed with reply as Annexure "D", giving the finding that the questioned digits have been written by the hand of the author who wrote admitted digits i,e, Mr. Izhar Ahmed. It is for the respondents to make a correct assessm ent of evidence produced in the enquiry proceedings and also collected after conclusion of the enquiry proceedings by way of opinion from Handwriting Expert and arrive to legal conclusion. It does not lie with the Commission to make its own assessment regarding validity of the report of Handwriting Expert at the stage of disposal of application under Regulation 32(2)(c) of the N.I.R.C. (P&F) Regulations, 1973, when so far the material produced on the record there do not appear prima facie case in favour of the petitioner for grant of interim relief, as well as proviso to clause (e) of subsection (4) of section 49 of the Industrial Relations Ordinance, 2002 lays down that except during pendency of an industrial dispute, the Commission shall not grant interim relief against and action mentioned in section 63(d) of this Ordinance. Accordingly application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 is dismissed and interim pr6hibitory order, dated 4-11-2006 is hereby vacated. To come up on 6-3-2008 for filing affidavit-in-evidence by the petitioner.
Interim Prohibiting order vacated.