' MUHAMMAD SHABBIR JAMAL (MEMBER).--- This order disposes of the petition filed under section 49(4)(e) of I.R.O., 2002. It is contended that the petitioner is a permanent employee of the respondent-establishment since 30-1-1990. It is further contended that the petitioner is a trade unionist and takes active part in trade union activities. It is alleged that the petitioner was involved in a concocted case and was charge-sheeted which was served on him on 5-1-2006 with copy at Annexure "A" of the petition. It is contended that the petitioner was downgraded from grade-VI to Grade-V which post is being held by him at present. It is further contended that the petitioner did not challenge the said order of the Management and so the same was accepted by him. It is further alleged that the respondent-Management is now preparing documents consisting of show-cause notice and charge-sheet etc. Pertaining to the same subject for which he was already awarded punishment in the form of downgrading from Grade-VI to Grade-V. It is alleged that the petitioner is being second time victimized merely because of his trade union activities. It is contended that the respondents have no lawful authority to punish the petitioner twice for the same act, which is not warranted by law and nor is justified for any reason and therefore, the petition falls within the jurisdiction of NIRC and the charge-sheet if served on him shall be liable to be quashed. As this application was accompanied by a stay application, status quo order was issued on 19-11-2006 after hearing the learned counsel for the petitioner.
2. The reply statement filed by the learned counsel for the respondent raised the following preliminary objections:--
(1) That the instant petition is misconceived. It is well-settled law that for misconduct committed by an employee the Management has inherent right to initiate departmental inquiry and award punishment. (1998 PLC 62).
(2) That against the , departmental inquiry is in progress, which cannot be challenged by alleging unfair labour practice. The Petition is misconceived and is liable to be dismissed.
(3) That the petitioner is involved in causing financial loss to the Company and is liable to account for the same. Reliance is placed on judgment of Honourable Supreme Court reported as 2006 SCMR 807.
(4) That the petitioner has approached the learned Bench with unclean hands. He was earlier downgraded for committing acts of embezzlement. He deposited Rs,71,257 (seventy-one thousand two hundred fifty-seven). Later on in the facts finding inquiry other incidents of embezzlement were unearthed in which he is allegedly involved. On new charges departmental inquiry is pending. It is stated that previous inquiry pertaining to 72 fake claims out of 278 for the period January to July, 1984, whereas the new claim is for the period July, 2004 to December, 2004 and July, 2003 to December, 2003 pertaining to additional 1494 fake claims.
(5) That without prejudice to the above objections the petition alleging unfair labour practice is vague, lacking material particulars with bald allegations as such the same is liable to be rejected summarily.
3. It is also contended in the reply-statement that the Management has no knowledge of the trade union activities of the petitioner, though admittedly there is a CBA Union namely SNGPL Employees union in the establishment. It was pleaded in the petition that the father of the petitioner remained President of the said union and even the real brother of the petitioner was Joint General Secretary of the said union and, therefore, active participation of the petitioner could not be ruled out. In the reply-statement of the respondent this fact is contended to be incorrect. It is rather contended that the respondent always encouraged healthy trade union activities and therefore, was never inimical to him for his involvement in the trade unionism. Para.4 of pleading has also been denied by the respondent. It is contended that the petitioner in fact was found guilty of de-frauding the Company by way of fabricating 72 medical claims against the names of different employees and in an unauthorized manner received the proceeds thereof amounting to Rs,71;257 out of total embezzled amount of Rs,915,848. It is contended that a fair and sufficient opportunity was provided to the petitioner to defend his position in disciplinary inquiry as a result of which the Inquiry Officer recommended his dismissal with recovery of Rs,71,257. It is further contended that the petitioner was provided another opportunity by way of personal hearing before a Senior Executive prior to implementing the recommendation of the Inquiry Officer. It is stated that the petitioner's dismissal eventually was converted into downgrading with recovery of Rs,71,257, which amount was deposited by the petitioner and he never challenged his demotion and so his act was covered by the principle of estoppels.
4. It is pleaded in para.5 of the petition that the Management was once again preparing show- cause, charge-sheet etc. Pertaining to the same subject for which the petitioner has already been awarded punishment in term of downgrading. It is apprehended in the pleading that this action is being initiated to cause injury to the employment of the petitioner by way of dismissal, discharge, removal or termination from service amounting to unfair labour practice and victimization'. The respondent in the reply statement has stated it is an incorrect contention of the petitioner. It is rather contended that initially out of total embezzled amount of Rs,9,15,848 the involvement of the petitioner was Rs,71,257 only. It is contended that later on another fact finding inquiry was conducted which unearthed new instance of embezzlement. It is stated that based on fact finding report of the Inquiry Team, the Company initiated afresh disciplinary inquiry against the petitioner.
It is contended that the Inquiry Officer had already issued to the petitioner charge- sheet/statement of allegation inviting written defence within a period of seven days. It is contended that it is a well-settled law that initiation of disciplinary inquiry does not amount to unfair labour practice and therefore, it is contended that petition is misconceived and reliance in this regard is placed on 1998 PLC 62.
5. The arguments of both the counsel were heard on stay application on different dates. Both the counsel also went into merit/facts of the case as well. The learned counsel for the petitioner, Mr. Abdul Hafeez Amjad while arguing the matter replied to the preliminary objections raised by the respondent in the reply-statement. As regards objection No,1, the learned counsel conceded the point raised in the reply statement. In response to objection No,2 it was argued by him that it is not correct that departmental inquiry against the petitioner is in progress. It is contended that the departmental inquiry was carried out and the findings were given on the basis of which the petitioner was awarded punishment of downgrading on 5-1-2006 vide Annexure "A" appended to the petition. It is further contended that the action was already taken after holding the inquiry and effecting the recovery alleged and therefore, the objection that the inquiry is in progress is not tenable. It is contended that the apprehension of the petitioner is that for the same act the Management will second time take action against him is not justified in law. In reply to objection No,3 it was argued that the same was not relevant for the aforesaid reasons. In reply to objection No,4 the learned counsel for the petitioner contended that first charge-sheet was served on 2-9- 2005 whereas the second charge-sheet, dated 6-11-2006 was not served till the filing of the petition on 29-11-2006. It is argued that the stay was obtained on the basis of the position given in para.5 of the petition. It is further contended that since the second charge-sheet was not received, therefore, the same was not attached with the petition. The learned counsel for the respondent controverted the stance taken by the learned counsel for the petitioner and stated that this was misstatement of facts.
6. The learned counsel for the petitioner while arguing the matter on 23-4-2007 submitted the photo copy of the charge-sheet bearing date 30-11-2006 which is written under the signature of Assistant Admn. Officer Mr. Muhammad Shafiq Bhatti that also bore his hand written remarks reproduced below:-- "Please hand over the above employee and confirm."
(Sd. ) 30-11-2006
7. The learned counsel for the respondents, Mr. Saleem Baig objected to the production of the original charge-sheet. He raised the question that how the petitioner was able to procure the original from the record of the organization. He requested that the same may be ceased by the Court. He contended that the date "30" under the signature of Assistant Admn. Officer was tampered with. The learned counsel further contended that the fact finding enquiry was held on some other charge and inquiry was ordered and initiated. He stated that the petitioner was duly informed even the name of the Inquiry Officer. The learned counsel stated that the document was signed and admitted before this Court. In this regard the document dated 1-11-2006 was shown bearing the signature of the petitioner who have also given his employment number and signed on 8-11-2006 (the Court observed that the petitioner just signed the document but the remarks "receiving by the accused" might be written by some other person). The learned counsel further contended that this fact has been concealed in para.5 of the petitioner. He argued that its effect is that the petitioner suppressed and concealed the fact that fresh inquiry is on the same charges on which punishment was already awarded.
8. When the above position was being dictated, the learned counsel for the respondent pointed out that this gave the impression that fresh inquiry on the same charges had been ordered on which the inquiry was already conducted and punishment awarded.
9. The learned counsel for the respondent Mr. Saleem Baig objected that how the petitioner was able to procure the original documents. As stated in the above, it is contended that the date of 30th is tampered with. Mr. Saleem Baig the learned counsel for the respondent contended that fact finding inquiry was held on some other charges and disciplinary inquiry was ordered and initiated by the Management. The petitioner was duly informed about the same even the name of the Inquiry Officer. It is contended that the petitioner signed the documents and admitted the fact before this Court. It is argued that he wrote his Employment No,5268-6, dated 8-11-2006.
10. Mr. Saleem Baig who has also submitted his written arguments has reiterated his contentions in the reply statement. He further argued that the person who is involved in causing loss to the Company, the Management can proceed against him and recover the loss. He relied on:---
(i) 1998 PLC 62, (ii) 2005 PLC 88, (iii) 2006 PLC 319, (iv) 2003 PLC (C.S.) 654, (v) 1997 PLC 22 (vi) 2006 SCMR 807.
11. He further argued that the action against the petitioner is initiated under the provisions of Removal from Service (Special Powers) Ordinance, 2000. As per section 11 of the said Ordinance the jurisdiction of the other Courts is barred which has overriding effect. The reliance is placed on judgment of the Honourable High Courts:---
(i) PLC 07 (C.S.) Umer Lodhi (sic).
(ii) C/2 judgment, dated 19-12-2006 in Writ Petition No,2780 of 2006 titled M. Rafique v. State Life Insurance and other by his Lordship Mr. Justice Sayed Zahid Hussain.
(iii) C/3 judgment, dated 19-12-2006 in Writ Petition No,11476 of 2006 titled Nazir Ahmed Nasir v.
State Life Insurance and others by his Lordship Mr. Justice Sayed Zahid Hussain.
(iv) Judgment, dated 16-2-2007 in Writ Petition No,10543 of 2006 titled Imtiaz Hussain Jillani v.
Ministry of Finance etc. By his Lordship Mr. Justice Mian Saqib Nisar.
(v) C/5 judgment, dated 6-12-2006 in Writ Petition No,10546 of 2006 titled M. Ashraf Saeed v. Habib Bank Limited and others by his Lordship Mr. Justice Mian Saqib Nisar.
(vi) Judgment, dated 6-12-2006 in Writ Petition No,10545 of 2006 titled Mr. Mushtaq v. Habib Bank Limited and others by his Lordship Mr. Justice Mian Saqib Nisar.
(vii) Judgment dated 19-9-2006 in Writ Petition No,9600 of 2006 titled Khalid Habib v. Government of Pakistan and others by his Lordship Mr. Justice Fazal-e-Miran Chohan.
(viii)2002 PLC 762.
(ix) 2006 PLC 217.
(x) 2007 PLC 184.
12. After hearing detailed arguments of both the learned counsel I hold that this is neither the case of unfair labour practice nor of double jeopardy as contended by the learned counsel for the petitioner. The Management in the case of first embezzlement that has since been established took lenient view and just awarded punishment only in terms of downgrade him despite recommendation for severe punishment in the form of dismissal. This very gesture on the part of the Management shows that they are not inclined to victimize the petitioner but want to deal with his case reasonably and according to law. I also find that second charge-sheet is not on the same charges but pertains to different medical bills alleged to be fake. I, therefore, by law cannot restrain the Management not to hold inquiry into these charges. It is within their authority to do so. The documentary evidence presented to me is enough to determine this case. I, therefore, do not consider it necessary to go into oral evidence. It would unnecessarily prolong the litigation which is in the interest of nobody. I in exercise of the Regulation 34 of NIRC (Procedure and Functions)
Regulation, 1973 cut short of examination or re-examination procedure to adduce evidence. I also observe that the petitioner has not come in this case with clean hands. He has no case to seek remedy if his own hands are not clean. The petition is therefore, dismissed.