' CH. ASAD RAZA (MEMBER).--- Muhammad Ashfaq, petitioner, resorted to this forum of NIRC with its bench at Karachi, for redressal of his grievances under section 49(4)(e) read with section 63 of IRO, 2002, in the background of the facts that he is in the employment of the respondent as a Store Cleaner, with a blotless carrier but an active trade unionist participating in the activities for promotion of the welfare of his fellow beings employed in the establishment of the respondent management, that elected as Vice Propaganda Secretary of Pearl Continental Hotel Karachi Workers Union, a CBA, for the last many years and in the course of trade union activities, many settlements with the respondent management had been made. Claiming that the respondent management was not happy with the state of affairs prevailing with the petitioner and his union, the management had resorted to termination/ retrenchment of 300 workers at a time and as the CBA lodged an agitation, the dispute followed with litigation before different Courts of law. The matter not ending there, the respondent management proceeded further to charge sheet at least 14 office bearers, a sort of victimization caused in the year 2001, eight terminated from service in 2002 on one pretext or the other, the said action also subjudice in different Courts.
2. The petitioner also, in the background stated above, had to collect a charge sheet dated 27-6- 2007 to which he submitted his reply denying the allegations in totality, but an inquiry was ordered to be initiated with an appointment of the inquiry officer of the choice of the respondent management, to which he protested, because he was directly subordinate of the authority and not expected to be fair and independent. Maintaining that all these acts on the part of the management were an outcome of the attitude of the management towards its employees including the petitioner based upon victimization and unfair labour practice and as there was an apprehension of his being dismissed, discharged, compulsory retired, transferred or passing any adverse which may effect the terms and conditions of the petitioners' service, therefore, finding no way-out, he preferred to knock at the doors of NIRC for a relief in terms, restraining the respondent management not to commit any act of unfair labour practice.
3. The written statement was filed on 16-8-2007, wherein objections were raised, both legal and factual, as of non maintainability of this petition under the relevant law, the controversy between the parties related .To internal discipline of the establishment and inquiry as such, not justified to assume the jurisdiction by this commission, and further, the petitioner, for the facts detailed at length in the written statement was allegedly guilty of misconduct and violative of his terms and conditions of service, creating disturbance and reflective of an indisciplined behaviour, was being proceeded against, therefore with mala fide and ulterior motives, he had brought this petition to pre-empt and avoid the legal action likely to follow after the internal inquiry, and being not with clean hands, his petition was liable to fail.
4. The parties were put on trial through evidence and keeping in view the divergent pleading on either side, in order to prove their respective stances, evidences of each variety, oral and documentary was produced and in the statement of Muhammad Ashfaq P.W.1, he tendered the relevant documents as well and to the contrary, the respondent management produced Mr. Amer Gull as D.W.1 and Mr. Afzal Khan Ghoury, D.W.2.
5. Having evaluated the material on file and also the arguments for each party, I proceed to dispose of the case in hand.
6. Muhammad Ashfaq petitioner deposed as P.W.1 and acknowledged his affidavit tendered in evidence as Exh.P.W.1, with its contents based upon a true account of his grievances, the facts for evidence, and the instrument, in token of correctness, bearing his signature. Needless to say that this affidavit Exh.P.W.1 is almost a reproduction of the main petition with minor variances, which is a natural course.
7. When cross examined, the petitioner acknowledged that he is working with the respondent managements since 1-2-1989, that he is Vice Propaganda Secretary of Pearl Continental Workers Union to which the respondent management has refused the recognition as CBA since 2001 and on the issue, the matter is subjudice before the honourable High Court of Sindh. He admitted that since 2001, or 2003 to 2007, he had not been issued any charge sheet by the respondent management, except the present one Exh.P.W.1/5 which is the subject of this petition. He condended that Exh.P.W.1/4 is a Proforma F-1 attached with his petition, and it was correct that this Proforma was issued by Hasho Group who is owner of the Pearl Continental and other Hotels, and further, it was correct that the survey proposed through this Proforma was conducted by an external consultant appointed by Pearl Continental. He claimed that he was directed to fill in the said Proforma under his signature and proper identity and equally so of his colleagues. On the subject of this Proforma the document itself when perused, it finds no where the requirement of giving either, the signature, or the identity by an employee, therefore the stance of the petitioner that he was extended with threats of dire consequences if the workers did not comply with the orders of the management, does not hold any water.
8. For the alleged charge sheet, at the cost of petition, being referred to Exh.P.W.1/5, the witness acknowledged that it does not mention anywhere for his alleged refusal/filling of the form of P.W.1/4. Further, the witness acknowledged that the first inquiry officer against whom he had levelled certain allegations had been admitted changed by the management at his request. The petitioner went on to admit that Messrs Shahab Munir Khan and Mir Ahmed who were the office bearers of Pearl Continental Workers Union and his own colleagues in the trade union, had not been served with any charge sheet by the management. He claimed that such a mischief could not be done by the management because the aforesaid three persons had a stay order in their favour issued by the honourable High Court, Sindh, but such an order/document could never be produced before the bench of the Commission. The witness, in concluding part of his statement admitted that he had joined inquiry, participated its proceedings, and it had been completed on 9- 1-2008.
9. Of course, the respondent management also produced the witnesses indicated in the paras above, but I do not feel a necessity of dialating upon their depositions and the evidence produced, because the facts acknowledged and admitted by the petitioner himself as P.W.1, are sufficiently enough to resolve, whether an unfair labour practice was likely to be, or has been committed against the petitioner, and also, if the charge sheet served upon him was an outcome of victimization under the relevant law. The petitioner was issued with charge-sheet, contents whereof are reproduced as under:--- "It has been reported that on 14-6-2007 in cafeteria, at 1610 hours, you along with others made hateful and derogatory speeches and tried to arouse the sentiments of workers against the Management of the Hotel. In speech inter alia, you said. {{URDU TEXT}} ' After making the above hateful and derogatory speech, you along with others loudly raised slogans, {{URDU TEXT}}made noise by beating tables with hands and spoons, came out in basement lobby went to staircase leading to hotel lobby through basement and raised slogans, {{URDU TEXT}} which disrupted not only the discipline but also the business of the Hotel as guests started leaving the Hotel.
' Yours all above acts of riotous and disorderly behaviour and acts of subversive discipline amounts to misconduct, within the meaning of law. Therefore, you are hereby called upon to explain your this conduct in writing, within 48 hours of the receipt of this charge sheet to the undersigned, as to why disciplinary action should not be taken against you, for the commission of above acts of misconduct which fall within the purview of S.0.15(3)(h) of the West Pakistan Industrial and Commercial Employment (S.0.) Ordinance, 1968".
10. The charge sheet with its contents as reproduced in para above is self-explanatory. It has followed with a complaint lodged by a senior officer of the management, and that resulted into initiating an inquiry and for the first time in year 2007 and earlier to that, the petitioner Muhammad Ashfaq who had joined service on 1-2-1989, despite his admitted status of member of a trade union, the management had never taken any action against him. Therefore, it can be said very safely that the petitioner and the management, at both the ends had been comfortable with each other in a period of at least 18 years. It is for the first occasion that as for the alleged indisciplined behaviour of the petitioner, an employee of the respondent was brought to notice of the higher authorities and that too in writing, the inquiry was set in motion and in that as well, the petitioner who objected to the appointment of the inquiry officer, he was accommodated and the man was changed. Thereafter, the internal inquiry, at administrative level has taken its course to the ultimate end and concluded finally on 9-1-2008. The petitioner participated the same throughout.
11. In that scenario, while holding that the dispute between the parties revolves around the facts allegedly constituting misconduct as claimed by the management, any interference by this commission in proceedings of an internal inquiry, is legally not justified, because the superior Courts have time and again laid the legal wisdom for guidance of all of us that in such a situation, the assuming of jurisdiction by the commission and adjudicating upon the legal vires of an internal inquiry between an employee and the management, is out of the jurisdiction of NIRC. It has been further observed that exercise of legal rights, by a management cannot be said as unfair labour practice and also, any irregularity, if allegedly committed even in holding inquiry, also, does not fall within the ambit of unfair labour practice amenable to jurisdiction of this commission. I feel fortified to say so with reliance upon the judgments available as 2004 SCM R 28 and 2004 PLC Lah.(?)
209/219.
12. In the circumstances, as discussed, and what has been said and done above, I am of the considered opinion that this petition merits failure and accordingly dismissed. For this long litigation, as both the parties have suffered a lot, I leave them to bear their own costs.